Daily Times

As the common law evolved, the idea of a constitution of the state gradually emerged as we understand it today. Since Pakistan is a common law country, I will not touch the continental, i.e. mainland European variants. In Common Law, a constitution was not necessarily a written or codified charter but rather a series of fundamental principles as well as judicial precedents around which the administrative law of the state was organised. United Kingdom (UK), the mother of democracies, for example, does not have a codified constitution to this day. Rather, it has a series of documents, including laws, starting with 1215’s Magna Carta. Magna Carta remains the basis of modern constitution-making and fundamental rights 803 years later. This would not have been possible if the Magna Carta would have interpreted according to the peculiar historical context of the power struggle between nobles and King John. Not having a written constitution has allowed a certain privilege to Judges in Britain, especially England and Wales, to define liberally the constitutional precepts according to the times. Thus for the British people, Constitution has always been a living thing evolving from time to time. This is further helped by the fact that an amendment to the unwritten British Constitution can be made by a simple act of parliament and that an act of parliament cannot for the most part be found ultra vires.

The Founding Fathers of the US, however, chose to draft an incredible document as the basic and supreme law of the land in 1787, which came into effect as the Constitution of the United States of America in 1788. The American Founding Fathers definitely did not want to bind coming generations to their ideas, but wanted to leave behind a starting point. To be sure, though they did not want the starting point to be completely overturned either to a point of reversal. This is why they made the amendment process extremely rigid. The Founding Fathers of the US, despite their many flaws and contradictions, were exceptionally wise men and three amongst them especially were consummate constitutional lawyers, Alexander Hamilton, Thomas Jefferson and James Madison. Jefferson did not directly take part in the constitution making process, being in France representing the newly independent North American colonies, but Hamilton and Madison were part of the process and later wrote the Federalist Papers along with John Jay. Hamilton wrote 51 and Madison 29 of the 85 papers eventually written. What is clear however is that these three constitutional lawyers disagreed with each other greatly as to the constitution’s intent and meaning. Dr. Andrew Shankman, a Rutgers’ Professor of History, has written an extraordinary book called “Original Intents”. What he argues, in so far as I have understood the book, is that Alexander Hamilton had a top down conception of a living constitution and James Madison, and by extension Thomas Jefferson, had a bottom up conception of a living constitution. Significantly these three founding fathers did not see the Constitution as a document reflective only of the wishes and desires of the generation making it. Nor did they imagine that the gaping holes if any between policy requirements and enumerated powers would always be resolved by a constitutional amendment. Hamilton especially, had a rather expansive view of the Constitutional powers with the General Welfare Clause acting as a freestanding grant of power to the state. This is the interpretation that Hamilton used to establish the central bank. Anything that was not forbidden by the Constitution was automatically allowed.

Associate Justice Antonin Scalia who passed away in 2016 was the foremost champion of the school known as “Originalism”. This argues that Constitution or the Amendments thereto should be interpreted according to original intent of the framers of the Constitution or the Amendment. In the231 years since the US Constitution first emerged on the scene, there have been 33 amendments passed by the US Congress and only 27 ratified by the requisite number of States, which means the US Constitution has been amended only 27 times in its entire history.

Pakistan needs to fix many injustices and only a progressive and modernist approach can achieve this

Compare this to Pakistan, which has had 25 amendments since 1973, and India which has had 101 amendments since 1950. Justice Scalia’s so called methodology of Originalism was notoriously self-serving. His biographer Bruce Allen Murphy writes “For decades, Scalia had been arguing for a static, restrictive form of interpretation. Now he was saying, Trust me, Antonin Scalia, for the proper interpretation. In short, Scalia was arguing that in law there was one single truth and only he knew it.” (Emphasis is in original by Murphy and the quote is from page 398 in the Book “Scalia, A Court of one”). Contrary to the claims made by Scalia apologists, Scalia was very much an activist judge when it came to causes he cared about. In District of Columbia v. Heller, 554 U.S. 570 (2008) he wrote the majority judgment that held that the 2nd Amendment to the US Constitution in essence allowed for the right to bear firearms without any connection to service in a state militia.  The 2nd Amendment to the US Constitution reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” History tells us that the US Founding Fathers had been unconcerned with an individual right to bear arms one way or the other. In Federalist Papers, Hamilton had spoken of a well-regulated militia as a bulwark of freedom for a free state. There is no historical evidence for the US Founding Fathers ever having spoken of an individual right to bear arms. However according Bruce Allen Murphy, Scalia argued that lawyers were better trained to interpret historical documents than historians. Hence he drew the conclusion he drew. If anyone in recent times has wondered how a self-proclaimed Textualist Conservative like Chief Justice of Pakistan (CJP), his lordship Saqib Nisar can read opposition to dams as an example of High Treason as defined by Article 6 of the Pakistani Constitution, here is your answer. Originalism, formalism and textualism are just tools to arrive at an ideological result of your choice.

Constitutions must be living, not dead documents. While it is easier to amend the Constitution in Pakistan than it is in the US, the fact of the matter is that Supreme Courts in any democracy should be counter-majoritarian institutions promoting a progressive agenda in step with the march of humanity. For example, the right to life would mean something very different in 2018 than it did in 1973. Similarly, freedom of expression and speech in 2018 means something entirely different in the age of information technology than it did before it. Pakistan needs a progressive counter-majoritarian Supreme Court even more so than the US to protect religious minorities, women and other marginalised groups because progressive action through legislation has often proved to be difficult. The Indian Supreme Court showed the way recently by striking down Section 377 of the Indian Penal Code. India would have taken at least 50 more years to amend the Penal Code through legislation. Pakistan needs to fix many injustices and only a progressive and modernist approach, which considers the Constitution a living document, can achieve this.

The writer is practicing lawyer and was a visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh

Published in Daily Times, September 24^th 2018.