Reviewing The Views
'Taking the constitution away from the courts'?
In his famous book Taking The Constitution Away From The Courts (1999), Mark Tushnet proposed to deny the courts 'the final word about the Constitution's meaning' or to deny them 'any role in Constitutional interpretation whatever'. I am a critic of Tushnet, but believe that the final word on the Constitution's meaning should be the people's preserve. The title for this Note on the 13th amendment verdict is not to be meant to suggest that we pull the Constitution out of the Court but to stress that the court should handle it carefully.
In declaring unconstitutional the care-taker government system (CTG), has the Appellate Division legitimately expounded the Constitution made by 'we the people' or has rewritten it by failing Parliament? The CTG was first challenged in the High Court Division (HCD) on the ground that it breached the Constitution's basic structures. The Court rejected the argument and found the system to have rather boosted basic constitutional features by helping to consolidate democracy (M Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171].
Since the entrenchment of the basic structure doctrine (BSD) in the eighth amendment case, many have bashed it for being contrary to democratic norms. Some have even argued that Bangladesh's Constitution does not permit of judicial review of constitutional amendments. I argue for a strong form judicial review and hence for the retention of the BSD, claiming that judges are more likely to invoke the doctrine cautiously and with due margin of appreciation for the legislature. In support of my claim, I usually refer to the HCD's above decision.
In the thirteenth amendment case, the Appellate Division has seemingly misapplied the tool of BSD, and has arguably misunderstood the Constitution. The judgment has thus furthered the critics' apprehension that the BSD might deprive the people of their 'right to participate'. Seen through the lens of western-inspired legal and political theories, the system of care-taker government is an anti-thesis to democracy. Bangladesh adopted this apparently undemocratic system quite deliberately and as an exception for the greater sake of democracy itself. Presumably, it is a temporary measure, but the question when to pull it off should be left for the people to decide.
While interpreting the Constitution and its fundamental premises, the Court should have taken the Constitution as an 'idea' and not as a mere text. Hasn't the Court reduced the Constitution to a mere text, positing it beyond public aspirations and potential social costs that might have ensued? What would be the consequences on 11 January 2007 had there been not this CTG system and the political parties could not have agreed on elections? In the context of Pakistan, one scholar termed Pakistan's 8th amendment that empowered the President to remove the elected government as a 'central necessity', since it acted as a deterrent to direct military rule: the Military, as an alternative, used to impress upon the President to sack governments. Not too long after Nawaz Sharif had done away with this Presidential power, his government was overthrown by a military coup. This 'power' was later reinstalled but has recently been written off.
Given the long-standing distrust amongst political parties, can any one guarantee that the absence of the CTG system will not lead to damaging political crises? Did the Appellate Division consider these apprehensions? There has not been any serious deliberation on the Constitution and constitutional development of the nation; no political and social scientists have been consulted by the Court. Even more confusing is its opinion that next two terms of elections may be held under the CTG, which seems to to be a policy-decision arguably deficient in reasoning. As far as we know, the Court has not embarked on assessing the 13th amendment in light of other characteristically divergent amendments declared unconstitutional so far: the 8th, 5th, and 7th amendments. In the 5th and 7th amendments, Parliament ratified things which it could not enact for itself. In the eighth amendment, as is often argued, it breached the 'unitary character' of the state. The 13th amendment is like none of them, but rather has grown of a political consensus of that time.
One might then ask whether I am arguing that the issue of legality of the CTG was a political question and ought to be relinquished. While the issue has strong political overtones and undercurrents, this was not a purely political issue. This was a constitutional issue indeed, tied with complex political ramifications. According to the doctrine of political question, first developed by Chief Justice Marshall in the famous but politically-loaded Marbury case in the USA, courts lack institutional capability to decide political issues. A modern substitute for the doctrine, with almost the similar end-result, is the doctrine of due deference, which allows judges to defer issues to a more appropriate organ of the state. This due deference may be made both by deciding a case and refusing to decide it.
The Appellate Division could have deferred to Parliament by deciding the case, i.e., by upholding the constitutionality of the CTG system. Given that the judicial solution to the problem of legality of the CTG is not so urgent and compelling, it could have also maintained strategic silence by keeping the cause pending and allowing the political wisdom to prevail. Taking the above concerns into their proper perspectives, the Court ought to have refrained from invalidating the 13th amendment which obviously is not irrationally unreasonable. The rare judicial review power vis-à-vis constitutional amendments should be exercised scarcely and only to preserve the 'stateness' or the identity of the nation.
The writer is Associate Professor of Law at the University of Dhaka.