Originalism v Living Constitution Debate

Originalism v Living Constitution Debate

The controversial role of the judiciary (especially after the recent Supreme Court decision on the 18th and 21st Amendment) and whether it can legitimately be treated as a body that makes law may be resolved through the mechanism used, or more appropriately a mechanism that needs to be used for statutory interpretation by the Appellant Courts of Pakistan.

The separation of powers doctrine means that all law making authority vests in the Legislature, i.e. Parliament and the courts are tasked with interpreting the law to determine legal questions that arise when cases are filed by individuals/companies/institutions.

If the recent Obergefell v Hodges judgment by the US Supreme Court has taught us anything (apart from the fact that it doesn’t take much to make Pakistanis change their Facebook Display Pictures), then it is that the Apex Court in the US has at least 5 different stances on statutory interpretation (the Majority decision authored by Justice Kennedy and the 4 dissenting Opinions authored by Scalia, Roberts, Thomas and Alito). This is clearly indicative of the fact that there is no clear stance on whether the limits of constitutional textiary are rigid and longstanding, or whether there is room to interpret a constitution and its amendments more fluidly as they may be viewed as acts restricted to the context in which they were authored.

This debate has raged on in the US for quite some time now, however, it must be kept in mind that the American Constitution was drafted in 1787 and has been subject to 27 constitutional amendments, the latest amendment that affected the rights of the general population was enacted in 1971. This means that the text of the constitution itself as well as that of the changes made to it, is quite old and has been subject to great critique and criticism for some time now. This makes for a far greater likelihood of it being outdated/in need of wider discretionary powers in order to be interpreted properly, as to avoid an absurd decision. As illustrated in the Obergefell v Hodges judgment, the 14th Amendment could not possibly have been intended to provide equal protection and recognition to gay marriages back when it was first introduced in 1868. This makes for a much more compelling case for proponents of the living constitution theory, especially the school of thought that favours the Pragmatist view.

By contrast the Pakistani Constitution was drafted in 1973 and has been subject to 21 amendments in its 42 year history (an average of one constitutional amendment every two years! This makes the text or meaning of our municipal constitution anything but outdated or something that needs to be reviewed or revisited. So if one were to make the argument, that the Supreme Court should interpret the constitution more strictly as it is relatively new and therefore more relevant and clear in its intent and meaning and, in case changes were required they should be made via the Parliament passing a bill instead of relying on judicial activism or judicial creativity, then there is a greater likelihood of the Originalist interpretation finding support locally. Such approach seems to reduce the need for a broader interpretation to exist in the eyes of the Supreme Court when deciding cases.

In order to determine the right approach for statutory interpretation within our legal structure, it is essential to consider whether or not the framers of the 1973 Constitution in fact intended for it to be interpreted strictly or confined to its original text alone. This intention is vital for proponents of the “Original Intent” theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. Was that intent present in the case of our current Constitution? This seems highly unlikely as this Constitution, unlike earlier attempts, was not meant for new laws or piecemeal alterations, but for the sole and express purpose of revising the 1956 articles. This shows that the current constitution was not meant to cement the position of the previous constitution and promote a more concentrated and coherent version of the 1956 text, but rather revise it in a way that it would be more apt in the position Pakistan found itself in in 1973.  Also, the convention was not limited to the religion, exigencies of government and the preservation of the State; rather it was intended to maintain delicacy in commerce, finances, issue of loans to federation, and the idea of separation of powers. It added new layers to the subject matter that the constitution was designed to govern. Surely a first attempt at including new ideals into a statute cannot make it the final word on how matters pertaining to these ideals are to be adjudicated. A new set of rules requires judicial honing through case law and precedent in order to take true shape and that requires leeway.

On the flip side however, it is worth remembering that the Pakistani constitution is relatively new and is subject to frequent change and updating. This means that the parliamentary will can and is explicitly exercised by the legislature when and as it sees fit. This would lead one to believe that if there was something the Majlis-e-Shoora wanted to say, they would do so expressly, the judiciary would not require a large amount of creativity to decipher the intent of the law makers. This is in line with what the  majority of the Originalists subscribe to the “Original Meaning” theory which is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. The current 1973 Constitution was drafted in response to a context that saw Bangladesh achieve the status of an independent nation and a major purpose of the redrafting was to introduce key amendments to the legal standing of Islam and to include rules relating to key fiscal matters. The current constitution was clearly a well thought out, specifically engineered piece of legislation that had a specific objective and a clear stance on key issues. This was not some random coming together of abstract constitutional ideas. All this would lead one to believe that the ordinary meaning of what the text should mean at the time of adoption is perhaps quite an appropriate approach to take with regards to this particular piece of legislation. Perhaps an originalist idea of “original meaning” might be the proper way the law makers have intended for the Constitution to be interpreted. If this is true, it would mean that judicial activism on behalf of the Supreme Court or any other court when interpreting a constitutional provision would be rather ill-placed. This is particularly important in relation to the recent Supreme Court ruling on the 18th and 21st amendment and how it rightfully upheld the will of the Parliament.

The originalism v living Constitution debate will go on for quite some time in the US and we probably won’t be able to begin this debate in Pakistan any time soon either, but one thing is abundantly clear. That if there ever were to be a stand made on either side here at some point, there might be sufficient reasons on either side to merit a particular constitution interpretation.

Until the day our judiciary feel the need to pick a side on this particular issue, which side of the fence do you stand on?




The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which she might be associated.

Mehr Bano Langrial

Author: Mehr Bano Langrial

The writer is a law graduate from the University of London and an Associate at a Lahore based law firm.