Selective borrowings

MARYAM KHAN

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IT was only a few years ago that the leading exporter of constitutionalism – the Supreme Court of the United States – began to shed its trans-judicial xenophobia and embarked upon an unprecedented course of referring to and seeking justification from constitutional jurisprudence outside of its national legal boundary.1 Though this aroused intense feelings of constitutional patriotism, attracting consternation from sections of the judicial and legal fraternity who continue to believe in American exceptionalism, many scholars and judges agree that it is near impossible to engage an increasingly integrated world through a one-sided export policy.2 

Artificial national barriers to the migration of constitutional thinking cannot restrict the free market of ideas in an age of globalization. It is only by evolving a more ecumenical approach to constitutional comparativism that the world’s most intractable socio-legal and political problems can find shared and meaningful solutions.3 

 

Of course, most other legal systems have been there and done that. South Asia, particularly, has been no alien to the exchange of constitutional discourse beyond national boundaries. With a shared colonial legal ancestry, both India and Pakistan are accustomed to drawing inspiration, guidance and countervailing examples from Britain and various other cross-jurisdictional sources in good common law fashion.

In the constitutional traffic between India and Pakistan, however, one would expect to find more countervailing examples than inspiration, given the discordant history of the neighbours’ political relations. However, interestingly, the Constitutional Courts of Pakistan have chosen, more often than not, to emphasize the similarities in the two legal systems and their social and political imperatives, and have found themselves in remarkable agreement with India’s effort to contextualize constitutional values and reduce the inequities resulting from the individualistic ‘Anglo-Saxon outgrowth’.4 

This is despite the fact that the Indian and Pakistani political experiences are commonly perceived through dichotomies like democracy and authoritarianism, and secularism and Islamism. More nuanced accounts reject such stark dichotomies by positing that both India and Pakistan display structural issues of authoritarianism, while admitting important contextual differences between the two.5 Furthermore, in important areas of judicial operation, such as the modus of judicial appointments and in the adoption and pursuit of a peculiar brand of South Asian ‘judicial activism’,6 the two countries have followed similar trajectories, certain important distinctions notwithstanding.7 

 

The import of social action or public interest litigation (commonly known as ‘PIL’) into Pakistan from India is a well-known and oft-quoted illustration of constitutional comparativism. The PIL movement in Pakistan draws heavily from and rests firmly on the foundations laid down by a string of pioneering judgments of the Indian Supreme Court in the 1980s.8 

With the aim of providing direct judicial access to ‘little Indians in large numbers’9 for violation of fundamental constitutional rights, the Indian Supreme Court’s relaxation of the standing rule and other procedural niceties in S.P. Gupta;10 its expansion of the substantive meaning of right to life to encompass broader matters of social and economic empowerment in Francis Mullin;11 its establishment of a novel, epistolary jurisdiction in Bandhua Mukti Morcha;12 and generally, its reliance on the Directive Principles of Policy to support and enhance the procedural and substantive innovations of PIL, have all found deep resonance in the evolving PIL jurisprudence of Pakistan during the 1990s.

 

Underlying this constitutional osmosis is the recognition by the Constitutional Courts of Pakistan that despite the heavy baggage of political dissension between the two countries, there must be active and shared solutions to the common problems of poverty, misery and disempowerment facing the mass of humanity in the region, in view of executive and legislative failures.

In practice, in neither India nor Pakistan has PIL been as heroically pro-poor as the philosophy behind its provenance would suggest. Clearly, PIL is as much about providing judicial access and some limited relief to the disempowered as it is, if not more, about protecting constitutional – mainly political – rights.13 Indeed, there are innumerable cases in both countries that reveal the capture of PIL by ‘established interests and the middle and upper classes, often at the cost of the disadvantaged.’14 Above all, as trends show, PIL has been a most effective tool in the paraphernalia of judicial activism available to judges of Constitutional Courts to encroach upon the purely political and policy domains of representative bodies of government at opportune moments.

 

In Pakistan, during the near-decade of Musharraf’s government alone, the Supreme Court took cognizance of a broad swath of political questions ranging from regime legitimacy, electoral eligibility, economic policy and deregulation, and the constitutionality of executive prerogatives in the context of the ‘war on terror’.15 Mimicking its Indian counterpart, the Pakistani Supreme Court accomplished this through an expansion of its original fundamental rights jurisdiction and a routinized application of suo moto powers, adding not insignificantly to its already massive backlog.

 

This judicial activism is not merely a matter of South Asian judiciaries aping western legal tradition and institutions. The spread of democratization, and with that judicial power, was carried along on the crests of many ‘waves’ of populism around the world (a metaphor coined by Samuel Huntington).16 One of these waves coincided with the downfall of the dictatorships of Western Europe in the aftermath of the Second World War. Europe’s painful experience with democratically elected fascist regimes in the early to mid-20th century led to the establishment of constitutional democracies in which judicial institutions were viewed as protecting democracy from its own excesses. In the 1970s, another wave of democratization swept across Latin America, Eastern Europe, and parts of Africa and Asia.17 This time, the populist impetus was in some cases against elected autocratic regimes, but in others against unelected military juntas.

In Pakistan’s first general elections in 1970, the country struggled to transition from decades of colonial-style autocracy to a constitutional democracy, pinning its hopes on its first and only consensus Constitution of 1973 (the ‘1973 Constitution’). Ever since this so-called ‘third wave’, scholars working at the cusp of law and political science have observed a global expansion of judicial power. The ‘judicialization of politics’ as they call it, or the gravitation of political power from popularly elected legislatures to judicial organs, has reverberated in societies as socio-politically diverse and as geographically dispersed as North America, Mexico, Latin America, Western Europe, Egypt, South Africa, Israel, Malaysia, Turkey, New Zealand, Australia, and South Asia. Activist judiciaries in these regions are involved in the settlement of overtly political issues that impact broader nation-building processes.18

 

Constitutionalism – or the idea that human rights and equality of citizens in a democracy are most effectively guarded through a written constitution containing institutional and procedural safeguards against the tyranny of the majority – has thus been widely adopted as a way to seal the basic values of democracy from manipulation by both authoritarian regimes and legitimately elected governments. Constitutionalism has brought judiciaries worldwide to the forefront of governance. As the institutions that mediate between the people and their representatives by preserving constitutional values, courts have invariably become key players in constitutional issues of public importance, and have at times, not unjustifiably, suffered allegations of making the law and formulating policy. Slowly and steadily, global constitutionalism has chipped away at traditional notions of parliamentary sovereignty and has ushered in an era of heightened judicial review along with an increasing consciousness of constitutional rights.

 

The constitutions of India and Pakistan aim to establish democratic orders that are recognizably premised on constitutionalism. Both constitutions contain institutional and substantive safeguards against undemocratic rule: the former are reflected in the express powers of judicial and constitutional review granted to the Constitutional Courts, while the latter find expression in elaborate bills of rights. The latter guarantee the protection of human rights ranging from life and liberty to freedom of movement, speech, association, assembly and religion. In many ways, the scope of authority of the Supreme Courts of India and Pakistan are broadly similar to the United States Supreme Court. All three are empowered to invalidate acts of the legislature because of constitutional violation, and all three play the exclusive role of mediator in disputes between federal and provincial/state governments.

However, as even the most dilettante constitutionalists know, the Supreme Court of India has pushed out the contours of judicial review to an extent unimaginable even by the standards of the United States Supreme Court – the progenitor of constitutionalism as well as one of the most activist judicial institutions in the world. In establishing virtually unlimited powers of original jurisdiction, particularly suo moto powers, that have little bases in the constitution, the Indian Supreme Court has set precedents that have not found champions elsewhere. Pakistan and Bangladesh appear to be the only exceptions.19 Presumably, the shortcomings of the representative institutions in these countries have had a considerable role to play in judicialization.20

 

Nonetheless, Pakistani Constitutional Courts have so far shown some judicial restraint on an important matter where their Indian counterparts have arguably, on many occasions, rejected temperance: judicial review of constitutional amendments. The ‘basic structure doctrine’ – a purely judgemade jurisprudential tool that allows the Indian Supreme Court to strike down a constitutional amendment on the pretext that it modifies the fundamental, underlying structure of the constitution – is perhaps one of the highest forms of judicial activism in terms of the extent of judicial encroachment on legislative and executive powers. Challenges to constitutional amendments before the Pakistani judiciary since the 1970s have attempted to transplant the ‘basic structure doctrine’ – as discussed specifically in Golak Nath,21 Kesavananda Bharati,22 and Indira Gandhi23 onto the country’s constitutional jurisprudence.

The Constitutional Courts of Pakistan, however, have never quite found grounds for constitutional convergence with India on this issue, thus insulating constitutional amendments from substantive judicial review. This is for good reason. A constitutional amendment, in purely procedural terms, requires a higher threshold for passage into law: two-thirds majority in both houses of parliament (the same as in the U.S.). In political terms, the more stringent requirements are indicative of the greater consensus and coalition building demanded of amendments to the constitution. It is no surprise that such amendments, when introduced by elected governments, are mostly the result of political accommodation and understanding across political parties, and hence political constituencies, especially in coalition governments trying to find common ground for democratic survival.

 

Imagine such a broad political convergence thwarted by a coterie of unelected and completely unaccountable judges, who have no fear of re-election and no popular constituency to answer to. Judicial intervention in such cases can at best offer a divisive and depoliticized short cut to political problems requiring broad participatory political processes.

The Constitutional Courts of Pakistan have thus repeatedly dismissed India’s stance on the basic structure argument on various grounds, starting from the Ziaur Rehman case24 in 1973, all the way up to the Lawyers’ Forum case25 in 2005. These include, inter alia, that the basic structure is a purely academic doctrine as the constitution is mute on its nature or existence; abstract concepts like ‘national aspirations’ cannot negative legislative authority exercised in accordance with the constitution itself; the constitutional history of Pakistan, with its many constitutional deviations, does not speak of a consistent adoption of any basic structure; and Indian precedents on basic structure are not applicable in the Pakistani context for the reason that the Indian Constitution provides for a ‘Sovereign Socialist Secular Democratic Republic.’26 

 

Attempts to apply the ‘basic structure doctrine’ by using Islam as the constitutional ‘grundnorm’ – such that any law found repugnant to Islamic principles laid down in the Holy Quran and Sunnah may be trumped on the basis that these principles are a transcendental part of the constitution – have also been struck down.27 Even so, if there were any residual doubts about whether Pakistani constitutional discourse could still accommodate the ‘basic structure doctrine’, they were categorically put to rest in the strong language of the recent Lawyers’ Forum case. In that case, Chief Justice Iftikhar Chaudhry, loath to displace ‘almost three decades of settled law’, thundered with a note of finality that, ‘the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by the appropriate political forum, not by the judiciary,’ namely, ‘the normal mechanisms of parliamentary democracy and free elections.’28 

Pakistan has thus experienced many and varied reverberations of Indian constitutionalism over time – some have left a deep imprint in the constitutional trajectory of Pakistani politics, while others have been conspicuous only by their consistent rejection. Ultimately, however, the fate of the vast majority of 1.3 billion people home to this region, living in a state of complete alienation from the superlative notions of equal citizenship and constitutional rights, will not be determined by the Constitutional Courts.

 

In the heady possibility of a judicial ‘quick fix’ to socio-political issues, it is easy to forget that the problems of the ‘little Indians’ and ‘little Pakistanis’, indeed in ‘large numbers’, are far removed from constitutional niceties. The two countries need to establish a much greater traffic of dialogue, osmosis and convergence between them through the people and their political representatives if they are to truly uphold the spirit of global constitutionalism.

 

Footnotes:

1. See, e.g., Lawrence v. Texas 539 U.S. 558 (2003), in which the Supreme Court struck down sodomy laws under the 14th Amendment, and Roper v. Simmons 543 U.S. 551 (2005), in which the court held it unconstitutional under the 8th Amendment to impose capital punishment on criminals aged under 18 at the time of commission of the offense. Both judgments relied on foreign jurisprudence to justify their substantive positions: the first to cast doubt on the assertion that sodomy is a widely condemned practice, and the second to emphasize the need for developing a national consensus in line with international standards in the treatment and punishment of juvenile offenders.

2. See, e.g., Vicki C. Jackson, ‘Constitutional Comparisons: Convergence, Resistance, Engagement’, Comment, 119 Harv. L. Rev. 109 (2005).

3. See generally, James Gordley, ‘Comparative Legal Research: Its Function in the Development of Harmonized Law’, 43 Am. J. Comp. L. 555 (1995).

4. Muhammad Haleem CJ in Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416.

5. See, e.g., Ayesha Jalal, Democracy and Authoritarianism in South Asia: A Comparative and Historical Perspective. Cambridge University Press, 2004; and Anil Kalhan, Constitution and ‘Extra-Constitution’: Colonial Emergency Regimes in Post-colonial India and Pakistan, Chapter 4 in Victor Ramraj and Arun Thiruvengadam (eds.), Emergency Powers in Asia: Exploring the Limits of Legality. Cambridge University Press, 2009.

6. For seminal elaborations on the distinctive features of the Indian public interest litigation experience see Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 1985, Third World Legal Studies 107; and P.N. Bhagwati, ‘Judicial Activism and Public Interest Litigation’, 23 Columbia Journal of Transnational Law 561.

7. These important distinctions pertain to the unique adoption of the ‘basic structure theory’ in India as the lynchpin of constitutional structure and ethos and as a justification for unprecedented judicial review. In Pakistan, Islam and federalism have been the predominant themes while visualizing any notion of a fundamental framework for the constitution. Furthermore, in India, judicial activism has operated in an environment where democratic forces create impetus for self-correction and judicial restraint. In contrast, in Pakistan, judicial activism has, at times, meant encroaching on a fragile, transitional constitutional democracy, often under attack by larger authoritarian and non-democratic forces, Islamist imperatives, and depoliticized sections of the populace that habitually malign attempts at democratic continuity. Furthermore, in Pakistan, the judiciary has been historically viewed in popular perception as well as specialized perspectives as a partisan institution aligned with military dictators; and post-General Zia-ul-Haq, with right-wing, conservative forces. Recent years have also displayed an additional distinctive feature between the two countries in terms of the starkly vocal, visible and organized Pakistani ‘Lawyers’ Movement’ for the restoration of the judges ousted by General (R) Pervez Musharraf in 2007. See ‘The Pakistani Lawyers’ Movement and the Popular Currency of Judicial Power’, 123 Harv. L. Rev. 1705.

8. See Maryam Khan and Osama Siddique, ‘The 2005 South Asian Earthquake: Natural Calamity or Failure of State? State Liability and Remedies for Victims of Defective Construction in Pakistan’, (2007) 9 Asian Law, 187, for an analysis of the growth and development of public interest litigation in Pakistan. Id. 216-228.

9. The phrase was first coined by the Indian Supreme Court in A.B.S.K. Sangh (Railway) v. Union of India A.I.R. 1981 S.C. 298, and later adapted as ‘little Pakistanis in large numbers’ in Darshan Masih v. The State PLD 1990 SC 513 by the Pakistani Supreme Court.

10. S. P. Gupta v. President of India AIR 1982 SC 149.

11. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981) 2 SCR 516.

12. Bandhua Mukti Morcha v. Union of India A.I.R. 1984 S.C. 802.

13. See supra note 8.

14. See Werner Menski, et al., Public Interest Litigation in Pakistan. Platinum Publishing Limited, London, 2000, at 67.

15. See Taiyyaba Ahmed Qureshi, ‘State of Emergency: General Pervez Musharraf’s Executive Assault on Judicial Independence in Pakistan’, 35 N.C.J Int’l L. & Com. Reg. 485.

16. Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century. University of Oklahoma Press, 1992.

17. Id. In Samuel Huntington’s chronological scheme, India appears in the ‘third wave’ of democratization along with Pakistan, with Indira Gandhi’s emergency as the dividing line between the pre-democracy and post-democracy eras. India’s placement in this ‘third wave’ has been contested by scholars, but it does not take away from the larger point that constitutionalism in South Asia has more depth than mere imitation or whimsical politics.

18. See, e.g., Ran Hirschl, ‘The New Constitutionalism and the Judicialization of Pure Politics Worldwide’, Fordham Law Review, Vol. 75, 721, 2006.

19. The unabashedly candid observation of Chief Justice Iftikhar Chaudhry in the highly controversial Pakistani Supreme Court judgment of Wattan Party v. Federation of Pakistan PLD 2006 SC 697 (Pakistan Steel Mills case), epitomizes the activist judicial attitude: ‘While exercising the power of judicial review, it is not the function of this Court, ordinarily, to interfere in the policy making domain of the Executive… However, the process of privatization of Pakistan Steel Mills Corporation stands vitiated by acts of omission and commission on the part of certain State functionaries.’

20. For a discussion in the context of India, see Nick Robinson, ‘Expanding Judiciaries: India and the Rise of the Good Governance Court’, Washington University Global Studies Law Review, 8:1, 2009, 1.

21. Golak Nath v. State of Punjab AIR 1967 SC 1643.

22. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.

23. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299.

24. State v. Ziaur Rahman PLD 1973 SC 49.

25. Pakistan Lawyers’ Forum v. Federation of Pakistan PLD 2005 SC 719.

26. See, e.g., Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57, Dewan Textile Mills v. Federation PLD 1976 Kar. 1368, Federation of Pakistan v. United Sugar Mills PLD 1977 SC 397, Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457, Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26, Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404, and Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738, and Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426.

27. See, e.g., State v. Ziaur Rahman PLD 1973 SC 49, Federation of Pakistan v. Haji Muhammad Saifullah Khan, PLD 1989 SC 166, Shirin Munir v. Government of Punjab, PLD 1990 SC 295, Hakim Khan v. Government of Pakistan PLD 1992 SC 595, and Kaniz Fatima v. Wali Muhammad PLD 1993 SC 901. Islam-based arguments have mostly rested on the Objectives Resolution, which originally formed the preamble to the constitution but was inserted as a substantive part of the constitution (art. 2-A) in 1985 by President Zia-ul-Haq. In the following years, the Supreme Court of Pakistan held that the new status of the Objectives Resolution only called for a harmonious interpretation of art. 2-A with other substantive constitutional provisions, without turning the former into a transcendental repugnancy clause to trump the latter. For the text of art. 2-A, see http://www.pakistani.org/pakistan/constitution/annex_objres.html.

28. See supra note 25.

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