The will of the people

“... You want nine people outside the ballot box to require States … to change … what marriage is …,” asked US Supreme Court Justice Stephen Breyer during oral arguments in Obergefell v. Hodges. It was an echo of a critique levelled against judicial activism by his usually conservative sparring partner, Antonin Scalia: in essence, nine unelected judges should not be able to usurp the ‘will of the people’.

A similar question arises in the current hearing before our own Supreme Court, regarding the constitutionality of the 21^st Amendment, which was churned out by the ‘will of the people’ after Pakistan was left devastated by the vile actions of December 16, 2014. It has received some criticism as a flawed solution to a deep-rooted problem. However, it has caused something even more ominous to the democratic process to rear its head: the basic structure doctrine. Simple to understand yet insidious in its effects, the doctrine states that even a constitutional amendment can be struck down if it violates certain provisions of the Constitution. The doctrine would make certain items of that sacred document untouchable by the legislature. Imported from India, where it holds sway, it is the device that can abolish the 21^st Amendment if the Supreme Court wishes to adopt it. That would require a sacrifice of another doctrine: the seperation of powers.

The sacrifice would require usurping of the democratic mandate. Certain quarters may find the 21^st Amendment problematic, but that should not cause us to overlook the fact that it was enacted through the democratic process by a two-thirds majority. It is precisely through debate and the utilisation of the ballot box that we must make our opinions heard and force the legislature to extinguish it. Until then, however, the judiciary would be wise not to embellish certain aspects of the Constitution at the expense of others, and thus proclaim the 21^st Amendment invalid.

The basic structure doctrine can be seen as an encroachment upon the domain of the legislature. The Constitution gives supreme power to the legislature to make any amendment to it, yet the basic structure doctrine gives power to a judge to superimpose his views upon the Constitution. His preferences and prejudices become the basis upon which some constitutional provisions are placed on a higher pedestal than others. Using the basic structure doctrine, certain articles of the Constitution could be immortalised if a judge so wishes, robbing elected representatives of the right to disagree with the opinion of unelected individuals.

An argument could be made that our judges strike down legislation all the time; hence this situation is no different. Yet, this argument fails to look deeper into the problem. The judiciary is only empowered to strike down ‘sub-constitutional’ law, which is in violation of the Constitution. A constitutional amendment, once it is validly enacted by parliament, becomes, at that point, a part of the Constitution in every way. The Constitution’s language is plain: a constitutional amendment cannot be called into question in any court on any ground whatsoever. Had the framers of our Constitution wished for it to conform to some ‘basic structure’, they would have made that explicit.

If the Indian model is examined, vagueness of the basic structure doctrine is revealing. The Indian judiciary has never been able to define what the parameters of the basic structure doctrine are. Even in the landmark judgment that adopted the doctrine, the judges differed over which articles of the Constitution they believed to form part of this basic structure. Not least, the doctrine also create an absolute judicial veto over the will of the people. Consider if a fiercely conservative judiciary is holding the reins, and the democratic process unanimously resolves to do away with the Objectives Resolution via a constitutional amendment. Such an amendment would be declared invalid, and solely because certain individuals, beyond the ballot, refused to believe that it was a provision that could be taken out of the Constitution.

The former chief justice of the United States, Warren Burger, once said, “When we decide a constitutional issue, right or wrong, that’s it until we change it. Or, the people change it. Don’t forget ...the people could abolish the Supreme Court entirely.” When asked how, the chief justice replied, “By a constitutional amendment.” All concerned would do well to remember these words.

Published in The Express Tribune, June 22^nd,  2015.

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