Laws Alter Views
Constitutionalism, parliamentary supremacy, and judicial review: A short rejoinder to Hoque
Imtiaz Omar and Md. Zakir Hossain
It's a welcome development that someone has tried to discourse on the ideas put forward in our article “Coup d' Etat, Constitution and Legal Conti-nuity” published in The Daily Star issues of September 17 and 24, 2005. This is Ridwanul Hoque's essay titled: “On coup d'etat, constitutionalism and the need to break the subtle bondage with alien legal thought,” The Daily Star, 29 October, 2005. Hoque's attempted rebuttal of our views however displays rather his apparent failure of proper understanding of some of the fundamental doctrinal questions about constitu-tionalism, parliamentary supremacy, constituent power and the role of the court in the constitutional judicial review process, as well as the underlying spirit of our article. In his attempt, Hoque tries to rely, without context, on such diverse writers as Krishna Iyer, Henkin, and Dworkin. His understanding of some of the basic issues in the debate on the varying approaches to constitutionalism -- parliamentary supremacy and judicial review -- and their interrelationship does not evidence an adequate understanding of the core concepts of constitutional government either in the Western democracies, or in countries of the post-colonial world. The authors of Coup d' Etat, Constitution and Legal Continuity had planned to publish a journal essay based on their article, and this reply to Hoque would have been better presented in a scholarly law journal, for enlightening comparative lawyers, rather than the law section of a popular daily. However a short rejoinder is necessary for popular consumption, and to dispel the obscurities of Hoque's attempted arguments.
In the absence of the context of Krishna Iyer's statement impulsively quoted by Hoque at the end of his article, it is assumed that Iyer is talking about the Eastern tradition of human rights, and Eastern concepts on which legal systems should be based. Of these two assumed premises, the first appears to have been the context of Krishna Iyer's glib and fleeting comments on human rights. This is discussed first.
Krishna Iyer is known in Indian legal circles as a populist judge, whose apparent mission in his rather retorsive judgments, prolific extra-curial and post-curial writings, using archaic and ornate expressions of the English language, and at times making pompous statements, appears to be directed to deriving human rights from non-justiciable constitutional principles of state policy (itself a borrowing from the Irish Constitution). His ahistorical and acontextual approach is quite preposterous.
Whatever Krishna Iyer has to say, Western notions of human rights are not alien legal thought in the context of the new democracies in South Asia or elsewhere. It is true that the recognition of human rights has some roots in some of the ancient and medieval traditions of the East. For example, an internationally renowned jurist and later judge of the International Court of Justice, also from South Asia, Christopher Weeramantry, has highlighted “The Farewell Sermon of the Prophet Mohammed at Arafat” as “An Outstanding Human Rights Document” (An Invitation to the Law, Sydney, Butterworths, 1982, at 273). The concept of human rights as we know today, however, achieved its most explicit articulation in the West. In the process of its evolution, it has come to be seen as the birth-right of all people. Aversion to Western traditions and the misconceived quest for ethnocentric bias in explaining human rights cannot brush aside the now accepted universalised character of human rights.
The second assumed premise of Iyer's comment appears to be a chauvinist position that ancient Indian legal culture was superior, and reference should be made to those principles rather than to Western notions of government and politics. Again the answer to that is, because of the intervention of colonialism, post-colonial nations have to contend with alien, to use Iyer's expression, institutions of government and the legal system parliament, executive, court, federalism etc. In major respects, the institutions of government, and the basic concepts of the legal system left behind have been beneficial to the independent successor states. In the arena of individual rights as well, the colonial power abolished widow burning, permitting widow re-marriage. Surely Iyer would not reject these reforms as intrusions of alien legal thought.
It should be remembered though that some of these Western concepts of governmental institutions, and some of the core foundations of Western legal systems are based on Eastern philosophy. After reviewing the writings of Ibn Sina and Ibn Rushd in the 10th to 12th centuries, Werramantry has remarked: “Islamic philosophy … played a significant part in stimulating … emphasis on reason which was to lead eventually to the Renaissance and Reformation and the resulting transformation of European legal system” (An Invitation to the Law, at 32). It was since the beginning of the 12th century, after the Norman conquest of England, that the diffuse customary laws in different parts of that country was moulded into the common law of England, whence this system of law made its transmigration some seven centuries later to the newly acquired colonial territories including India. It would be infantile to say, like Iyer, that we should free ourselves from the bondage of alien legal thought. The varying dimensions of legal philosophy, and the differing bases of legal systems have had inputs from different societies, cultures, and practices, and have come to be the birthright of all nations to intellectually draw on. The challenge is to adapt the legal values and principles in the context of specific cultures and historical circumstances. We should not be engaged in foolishly trying to re-invent the wheel all over again.
The concept of the basic features doctrine proposed in the 1973 case of Keshavananda Bharati has been much touted as an innovation of the Indian Supreme Court. Reference has already been made in our original article to the precedent in the Irish case on which this doctrine is based, without however being explicitly acknowledged by the Indian Court. There is also a 1968 journal article to this effect by a leading Australian constitutional academic and writer, Tony Blackshield. In the literary, academic and judicial worlds, non-acknowledgement of prior ideas is akin to plagiarism. On a lighter note, to break the monotone of legalistics, and since this article is in the popular media, an analogy may be made to the Indian film world. Two examples may suffice; Mumbai films like Masum and Bride and Prejudice, are plagiarised versions of Erich Segal's Man Woman and Child, and Jane Austin's Pride and Prejudice. Mumbai movies have long been the opiate of the masses, and no one would seriously expect the ordinary mortals to scrutinise plagiarism; but what about literary and movie critics?
The basic features doctrine attempts to bring in the notion of a supra-constitutional norm in legal and constitutional interpretation. The doctrine of a supra-constitutional, non-positivist norm, has been known in Western jurisprudential writings for quite sometime. Hans Kelsen (Pure Theory of Law) is one example. There have also been writings on the higher, natural law, background of American constitutional law. Kelsen identified this fundamental norm as the Grundnorm. Kelsen's concept of the Grundnorm was used by the Pakistan Supreme Court in the 1958 case of State v Dosso. The problem with the doctrine of basic features is that anything can be branded as a basic feature of the Constitution. Thus in the 1976 Shukla case, during the harsh authoritarian emergency regime of Indira Gandhi, the Indian Supreme Court, not only refused to engage in judicial review of derogations from constitutional rights, but went on to identify the emergency provisions of the Indian Constitution as a basic feature of the Indian Constitution.
Some writers and commentators have been unduly enthusiastic about the basic features doctrine as laying down a limitation on the amending power (constituent power) of Parliament. However, the decision should also be seen in the perspective that the Indian Supreme Court in the 1973 Keshavananda case radically retreated from its activist position adopted in the 1967 Golaknath case. In the Golaknath case, the Indian Court declared invalid constitutional amendments that sought to foreclose judicial review of amendments relating to the constitutional right to property. In the Keshavananda case, the Court radically retreated from this position, and acknowledged the authority of Parliament to amend even the constitutional rights, and any other provision of the Constitution. The only limitation articulated by the Court was that no such amendment should alter, what it called, the “basic features” (e.g. supremacy of the Constitution, separation of powers, dignity and freedom of the individual) of the Constitution. In vacating the field of examining constitutional amendments, the Indian Supreme Court has taken recourse to the political questions doctrine. In all the cases decided during the states of emergency in 1962-1969 and 1971-1977, the Indian Supreme Court resorted to the political questions doctrine by refusing to hold invalid executive action of preventive detention, and declining to examine justiciability of executive proclamations of emergency... (Cont.)
The last part will be published on November 26, 2005.
Dr Imtiaz Omar is a Constitutional Law academic currently based at the University of New England's Law School, Australia. Associate Professor Md. Zakir Hossain is Dean, Faculty of Law and Chairman Department of Law, University of Chittagong.
