A win for constitutional values in Pakistan and Kenya

As a political scientist, I prefer to see the main message of these rulings at this level of core principles rather than in terms of the relevant constitutional articles as legal scholars do, because the ensuing discussion should not be about the letter of the law but its underlying ethics. These, after all, are disputes not of fact but of interpretation. I see these two judgments of the supreme courts of Kenya and Pakistan as their Justice H R Khanna moment, the moment when law confronts power and does not flinch.

Before I move to a brief discussion of each ruling, two important observations need to be made for they contribute to the ongoing debate about “decolonising the law” in post-colonial societies. This is particularly true in India, Kenya, and Pakistan, countries that carry the legacy burden of the British legal system. The first is that the principles of law, because they are abstract and capacious, can indeed be inhabited by a progressive politics. One has only to be imaginative, argumentative, and bold. The silliness of the British conservative tradition, therefore, need not be the dominant way to read British jurisprudence.

The second is that constitutional courts, in these raucous post-colonial societies, should not get overwhelmed by the tumultuous politics but should, instead, find and occupy that independent space for justice uncompromised by special interests. Such a space exists. Supreme courts hence need to regulate the flow of politics rather than be submerged by it.

The Kenyan case relates to the initiative of the executive, known as the Building Bridges Initiative, or BBI for short, to pass a law to make major changes to the 2010 constitution. The debates that followed centred around the amending power granted by relevant articles, the basic structure doctrine, the proper procedure to be followed for any amendment, the error of reading words into the constitution that were not there, the thinking behind the stated constitutional principle of “public initiation”, and so on. It is a fascinating debate that took place in the supreme court over several months. Confident about its autonomy, the court publicly broadcast its proceedings. We do not have the space here to rehearse these debates and so, for our purposes, all we need, as students of democracy, is to reflect on the decision of the Bench of seven judges to strike down the BBI initiative as unconstitutional. The Bench stared down the executive and declared BBI unconstitutional. Such boldness on BBI was also shown by the two lower courts, the high court and the court of appeal, re-establishing thereby the power of law to discipline errant authority. In total, 19 judges of the three courts debated its constitutionality. Through their courage, the learned justices of the Supreme Court of Kenya restored the sanctity of the constitution and the principle of limited government that is at the heart of a constitutional democracy. In post-colonial societies, the executive often tends to see the electoral verdict as giving it unlimited power. In its H R Khanna moment, the Kenyan judiciary disabused them of this illusion.

The five-member bench of the Supreme Court of Pakistan in a unanimous ruling, rejected the decision of the deputy speaker of parliament to disallow the no-confidence motion against the prime minister and also the follow-up decision of the president to dissolve the National Assembly. Both decisions were deemed unconstitutional. The chief justice, in fact, asked the president’s lawyer, who had argued that the decision was as per the law, that if this was indeed the case how come Pakistan was in a constitutional crisis.

In justification of its action, the executive in Pakistan used all the usual tricks in an executive’s arsenal, from arguing about the sovereignty of the legislature, making its decisions non-justiciable, to the independent authority of the Speaker, to even issues of national security. During the proceedings, the learned judges consulted the chair of the electoral body, the head of national security, the leader of the opposition, and again, as in Kenya, after listening to the fine debates in law, ruled that the rejection of the no-confidence resolution and the dissolution of the National Assembly were unambiguously unconstitutional. By upholding the sanctity of the constitution, the five judges rejected the “doctrine of necessity” — live with the illegal decision of the executive since it is necessary — behind which many Courts often hide. They too stared down the executive and did not blink. This is not easy. Subsequently, the reconvened National Assembly passed a no-confidence motion against the prime minister. The sanctity of the constitution was restored.

One could argue that these are unique episodes in otherwise weak judiciaries, as is the reality in many post-colonial societies. But in both Kenya and Pakistan, in the last few years, there have been other examples of such judicial independence. In 2017, the Supreme Court of Kenya nullified the election of the president because the process was seen to be compromised and beset by irregularities. In 2021, the Pakistan Supreme Court instructed the executive, through the Evacuee Property Trust Board, (EPTB) to rebuild, from its own resources, a Hindu temple that had been vandalised and to recover the expenditure from the vandals.

There are four factors to explain this boldness of the courts. The first is the quality of the law itself. When the law is clear about the necessary constraints on the executive, then arriving at such rulings is less difficult. Second, when the political elites in the country, both within the House and in other institutions, publicly question the actions of the executive, the courts are emboldened because they now have important public allies. Third, when there is a robust public discourse about the unconstitutionality of the executive decision, the court carries the burden of reversing the declining legitimacy of the constitutional order. But the most important is the fourth factor, the courage of the judges. Max Weber, the eminent German social theorist, in a seminal essay titled, ‘Politics as a Vocation’, laid out three qualities necessary for politicians with a vocation. They must have vision, passion, and a sense of responsibility. I believe judges too must have the same qualities. Vision to imagine the future that the constitution envisages for the country. Passion to see themselves as the custodians of its constitutional values. And a sense of responsibility that makes them fair regulators of arrogant politics.

In their recent judgments, these qualities were shown by the courts in Kenya and Pakistan. Sadly, they were missing in the case of Father Stan Swamy.

The writer is co-editor of Companion to Indian Democracy: Resilience, Fragility and Ambivalence, Routledge, 2022. He is the DD Kosambi Visiting Professor at Goa University. Views are personal