Implied powers and Constitutional limitations

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Implied powers and Constitutional limitations

Tuesday, 24 December 2019 | Nadeem Paracha

Constitutional amendments made in bad faith prove tough to reverse when they become tools in the hands of political lobbies

All Constitutions authored by nation-states from the 18th century onwards have their roots in what is often referred, by political scientists, as the “enlightened Constitution model.” It is largely based on the ideas of several 17th and 18th century European philosophers, especially Thomas Hobbes, John Locke and Jean-Jacques Rousseau.

Even though various forms of codified Constitutions have existed before the 18th century, it is the “enlightened model” that continues to shape Constitutions to this day. Therefore, a Constitution of any country is understood to be inherently pluralistic, setting guidelines for Governments to legislate laws that would ensure socio-political and economic stability and repulse discord and turmoil in society.

The “enlightened model” supports robust debate and an equally vigorous process of tabling a Bill before it is passed as law or an amendment. The idea is to achieve as wide a consensus as possible among all branches of the legislature, the executive and the polity. Yet, one has often seen how fast sometimes majorities in a Parliament have passed Bills and made amendments without much debate or input from stakeholders.

Recently, a controversial Act in the Indian Parliament was passed in just one day. The Citizenship (Amendment) Act (CAA) was introduced by the BJP Government on December 9 and passed the very next day. Denounced by the Opposition and human rights groups as being “anti-Muslim” and against the “secular spirit of the Indian Constitution”, the passage of this Act has triggered widespread riots in India.

This is a stark example of an amendment staining a document that was originally constructed on the pluralistic pillars of the enlightened Constitutional model. An amendment made in bad faith that creates discord in the polity can be problematic. Certain Constitutional amendments, which trigger discord in society, become rather tough to reverse, especially when they become political tools in the hands of strong lobbies.

Take, for instance, the Second Amendment in the US Constitution. Ratified in 1791, it gives US citizens the right to bear arms. The amendment became controversial in the latter half of the 20th century when there was an alarming increase in cases of youth indiscriminately gunning down fellow students in schools.

Despite massive rallies calling to repel the amendment, American Governments have found it tough to do so because the amendment is supported by the powerful and financially strong “gun lobby” and by segments of the polity in the more conservative Southern States. Both groups have an impact on the electoral careers and fortunes of a number of members of the US Congress and Governors.

The Second Amendment in the Constitution of Pakistan is another interesting case in point. Unlike the 1986 Article 295-C that introduced the death penalty in the country’s blasphemy laws, the second amendment in the country’s Constitution was not enacted in a hurry or without debate. A robust debate did take place. Mahboob Hussain’s book, The Parliament of Pakistan, provides a detailed account of how this amendment, which ousted a community from the fold of Islam, managed to become part of a Constitution built on the enlightened model.

In May 1974, a clash took place between a group of Ahmadiyya youth and members of the student-wing of the Jamaat-i-Islami (JI) in the city of Rabwah. A week later, the Leader of the Opposition in the Punjab Assembly demanded that the Ahmadiyya be declared a minority. Soon, the Opposition in the National Assembly moved a motion to discuss the incident in Parliament. The law Minister refused the motion stating that the issue was provincial.

Until June 4, 1974 the Government used various tactics to keep the debate on the issue away from the Parliament. The then Prime Minister, Zulfikar Ali Bhutto, maintained that the “90-year-old question” (of whether the Ahmadiyya were Muslim or not) was a theological one and, thus, could not be discussed in Parliament. According to Hussain, the Prime Minister asked religious parties that if this issue was so important, why had they not discussed it when the Constitution was being framed (with their input) in 1973. The speaker of the National Assembly stated that no debate can take place on the matter because the Constitution had already defined the minorities. On June 14, the Opposition called for a general strike. The strike turned violent in Punjab, killing dozens.

After threatening to use the military against the rioters, the Prime Minister finally appeared on TV and promised that he would allow the issue to be discussed in Parliament. In his book, Hussain writes that the fact that the military was already engaged in fighting an insurgency in Balochistan, and the manner in which certain Ahmadiyya leaders based out of Pakistan began suggesting (via foreign media) that the Bhutto regime was incompetent, forced the Prime Minister to allow a debate. A special parliamentary committee was formed to investigate the Opposition’s demands. Theological experts from all Muslim sects in Pakistan, including those from the Ahmadiyya community, were invited for in-camera sessions with the committee.

Bhutto’s party, the Pakistan Peoples Party (PPP), had been overwhelmingly supported by the Ahmadiyya during the 1970 election. In 1972, Bhutto had even appointed new chiefs of Air Force and Navy, both of whom were Ahmadiyya. According to Hussain, Bhutto continued efforts to neutralise the situation but since Punjab was the PPP’s electoral bastion, violence in the province threatened his regime at the centre.

Rafi Raza, one of the authors of the 1973 Constitution, wrote in his 1997 book, ZA Bhutto and Pakistan, that many members of PPP’s Punjab Assembly agreed to support the Opposition on the issue after portions of the special committee’s report were “leaked.” Raza wrote that certain “controversial statements” made by the Ahmadiyya figureheads during their meeting with the committee turned the tide in the Opposition’s favour. He didn’t mention exactly what these statements were.

After four months of debates and commotion, the Bill to declare the Ahmadiyya a minority was allowed to be tabled. On September 7, 1974, it was passed. All parties — religious and secular — in the Assemblies and the senate voted in its favour. Editorials of almost all newspapers commended the Parliament for resolving the issue “peacefully.”

Yet, even though the Government and the Opposition declared that a 90-year-old issue had been resolved through democratic consensus, the fact is, this “resolution” ended up opening a Pandora’s Box that the State and polity of Pakistan are still trying to shut. This was a box from which sprang out not only religious and sectarian monstrosities but also the question: Exactly how adjustable should a Constitution based on the “enlightened model” be? Is this adjustability actually a vulnerability?

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