A constitution is the aspirations of the people. It is the experience of the past, the present desires of the nation, and last, but not the least, a hope for the future. A constitution is a document for all times to come

What is a constitution? A constitution is a set of laws and rules setting up the machinery of the government of a state and which defines and determines the relations between the different institutions and areas of government, the executive, the legislature and the judiciary, the federal, the provincial and the local governments. In fact, a constitution is the source, the jurisprudential foundation head, from which other laws must flow, succinctly and harmoniously.

The first well-known instance of a written constitution was that of the United States of America, which set up an original pattern, and which for its “brevity, restraint and simplicity” is universally hailed as a remarkable document. The makers of many other constitutions followed many of its provisions though not its brevity. The constitution of Pakistan is one such document. It is said that the constitution of Pakistan, which is one of the lengthiest of its kind, represents the political, religious, economic and social ideals and aspirations of the vast majority of the people of the time when the constitution was framed.

A constitution is the aspirations of the people. It is the experience of the past, the present desires of the nation, and last, but not the least, a hope for the future. A constitution is a document for all times to come. The constitution of Pakistan is based on the principle of trichotomy of power. It is a social contract that binds people, society and the state to act within the framework of the constitution.

In countries that have written constitutions, such as the US, Canada, Australia and India, judicial decisions play a vital role in the interpretation of constitutional law. Particularly the US judiciary has shown the way. In the US, the Federal Supreme Court is the ultimate arbiter in cases relating to the interpretation of the constitution. Justice Holmes has said: “[T]he provisions of the constitution are not mathematical formulas having their essence in the form: they are organic living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.”

A written constitution is enabled by the judiciary, which upholds the basic structure of the written draft. The basic tenets of the constitution are upheld by three organs of the government, each one acting independently of the other for the common good. The great Roman orator Cicero said, “The chief law is public good.” This maxim summarises the entire reason for the entrusting of certain powers to each one of the three separate wings of governance. For the purpose of the proper ‘implementation of the rule of law’, the interpretation the judiciary has to be in alignment with the basic structure of the constitution.

Judicial creativity must fill the gap between the existing law and the law as it ought to be. The constitution as the grundnorm should be interpreted according to current societal standards. Complete justice or true justice must encompass morality and ethics. The interpretation of laws has to be purposive. This means the interpretation must serve the objective of law enactments, keeping in view the supreme law, the grundnorm, the constitution.

The basic and integral scheme of the separation of powers requires conferment of the power of judicial review on the judiciary. That is an acknowledged basic aspect of (world) constitutions and constitutionality. Judicial review, as originally conceived, is generally understood to emanate from the judgment of Chief Justice Marshall of the American Supreme Court in Marbury v Madison in the year 1803. It was strongly resented by the other wings. Nevertheless, it had been forgotten that two centuries before Chief Justice Marshall, it was Lord Coke who had said the same thing in Dr Bonham’s case. Now it is an acknowledged basic feature of the constitution.

It is expected that the judiciary would keep everyone within the bounds indicated by the constitution. But the bounds are equally applicable to the judiciary itself and the constitution has entrusted the judiciary with the additional task of not merely keeping everyone else within bounds, but also remaining within bounds. The judiciary is empowered to perform certain functions and discharges only a delegated function. A delegate can never claim to be supervisor over the principal. Also, for achieving the purpose of ensuring socio-economic justice by enabling constitutional mechanisms, proper access to the courts is important. The requirement is speedy justice, an area in which the constitutions of the world have some serious thinking to do.

The powers constitutionally delegated to the judiciary are not provisions meant for personal aggrandisement. They are meant to serve the constitutional purpose and to uphold the majesty of the law. True respect, lasting admiration and justification for being placed at the highest level has to be earned from the people. It is not to be extorted from them by instilling the fear of the contempt of power. Lord Denning said in the year 1968: “Respect for a judge must rest on surer foundations than mere exercise of the contempt of power. The contempt of power is there to keep in check the recalcitrant, to punish the incorrigible and the adamant only for the purpose of upholding the majesty of the law and not for the judge’s personal majesty.”

While studying comparative constitutional law, no one doubts that the independence of the judiciary is a must. The full import of the expression independence of the judiciary is often not realised. There are many facets to it. Independence of the judiciary does not mean merely independence from outside influences, but also from those within. “Be you ever so high, the law is above you,” said Thomas Fuller. The judiciary has to remember that this is not meant only for others. It applies equally to the judiciary. Failure to implement it on oneself would result in the erosion of credibility and the independence of the judiciary. The only cure is the one envisaged by constitutions the world over, accountability to the same law and the same standards set for others.

Constitutions would have to perfect in-house procedures for the higher judiciary. Unaccountability is not the order of any constitution. It is an antithesis of basic democracy and fundamental democratic principles and, therefore, for the preservation of the independence of the judiciary, it is necessary to ensure judicial accountability at all levels.

The writer is an advocate of the Supreme Court of Pakistan, a human rights activist, and chairman of the Judicial Activism Panel. He can be reached at [email protected]

Source: Daily Times, 2 May 2010

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