Constitutional pendulum should not be swinging back
M A Sayeed
The constitution, if not seen as a transient code, is of course, a living document that may be taken (at least for the purpose of this writing) getting symbolically resembled with the nature of a Roman mythological god, Janus. Janus is usually a two-faced god capable of looking to the past and future alike. Described to have 'double disposition' as symbolized in his two headed image, Janus is generally regarded as the god of beginning and transition; 'beginning' - as he causes the starting of actions and presides on all movements, and 'transitions' - as he looks after passages, where change is perceived to be bivalent.
The constitution as a living enterprise has both the beginning and transitions. As the initiator of statehood, of new historical phases and economic, social and political phenomena, it can apparently be understood to symbolize change and transitions such as the progression of past to future. Such a disposition of constitution, in its deeper sense (the sense that makes it comparable with two headed image of Janus) implies a metaphorical force immensely entailing the constitution to maintain a two-fold dimension, that is, to bridge the constitutional insights of past with the present in one hand, and combining them with the forward-looking pragmatic features of the constitution, on the other.
Beyond this metaphorical demystification, the need for balancing the 'constitutional adherence' (to the past and future elements) has also appeared to be caught with direct legal and jurisprudential concern. In this respect, we can take the example of contemporary philosopher Ronald Dworkin's view of 'law as integrity' which would suggest us taking constitutional law be a combination of both backward and forward-looking elements, in his words- 'backward-looking factual reports of conventionalism' and 'forward-looking instrumental programs of legal pragmatism.' (Law's Empire, 225).
Thus, at this stage we should get rid of our dilemmas, at least, on the point that the constitution requires balance: it cannot give too much faith to the past, nor can it rush too quickly into the pursuit of some future objective, thereby disregarding what has been conventionally built up. In contrast to such a view of reconciliation, there is however, a practical problem which arises, more particularly, when the value-laden venture of the constitution comes into sight.
There is no denying that being a value-laden enterprise, the constitution 'must continually reflect currently held social attitudes'. In essence the constitution, therefore, should not have an uncompromising desire to keep it running with the values that it has originally held and observed. How can the constitution then restrict its coherent adjustment to the 'unfolding political narratives' of the time? How can we bring reconciliation between the past and present values? Is there any 'qualitative degree' to measure the sanctity and substance of such values? How far can the constitution tolerate its integration with changing social attitudes and values?
These fundamental questions may bring our present concern close to the jurisprudence of 'original intention'. As the constitution is the resultant of a parallelogram of forces which operate at the time of its adoption (K.C Wheare: Modern Constitutions, p.67), the originalists' approach (I use the term just taking the note of our ongoing constitutional debate) would insist that the constitution be amended by keeping it in conformity with the dominant beliefs and values of the time it was framed and adopted.
Though the literature of 'original intention' has a deeper ramification in the realm of constitutional interpretation, the originalist insistence on the issues of constitutional amendment may be found to create a roadblock to keep the constitution in true line with the time. “A major problem with the idea of original intention is,” what Robert Bork explains, “that the Framers articulated their principles in light of the world they knew, a world very different in important respects from that [we live]” (In: Constitutional Law and Politics by O'Brien, 81). Thus, the tendency to go back to the original constitution in the name of 'original intention' may even be dangerous as “fairness cannot explain why people now should be governed by the detailed political convictions of officials [leaders] elected long ago, when popular morality, economic circumstances, and almost everything else was very different.” (Dworkin, 364)
Quite apart from this defect, the originalists' approach has another pitfall which practically comes into conflict with many fundamental jurisprudential connotations virtually attached to the 'legal character' of the constitution. For example, if 'legal character' of the constitution is examined by pursuing the organicist view of Roscoe Pound, then constitution cannot be found to get away but contain a natural momentum for change expressing its in-built tendency to develop.
Concerning constitutional amendment, whether originalist view and organicist approach can go hand in hand is altogether a matter of jurisprudential inquiry. At this moment, we may just rely on a general assumption that rationales of demanding constitutional amendment and, in turn, merit of such amendment resultant from that demand should be appraised on the yardstick of constructive attitude to 'constitutional progresses', an attitude of how we are united in taking our constitution as a means of integrated national progression.
Faith in the past constitutional conviction is one thing, blind faith quite another. Thus one cannot rationalize particular amendment of constitution without responding to the past imperfections, nor can he justify its merits without confirming that it embodies 'substantial progress' and places certain values beyond the past.
Yet it is not so simple a task to dismantle such general, if not pedantic, assumption from feasible difficulties arising from the disagreement about what 'constitutional progress' actually means and what is the degree of such progression. That agreement could not be reached in evaluating the 'constitutional progress' does not, however, show that the 'self-evident feature' of constitutional progression is non-existent. The crucial point, therefore, always lies not on ascertaining the rationales of reconciling the past and present constitutional postulates, but on the nature and merit of such reconciliation that requires passing through the test of constructive evaluation, especially in terms of 'constitutional progress' and transition.
Thus the constitutional pendulum should not always be swinging back. It will be dangerous if we try to ignore the constitutional postulates of the past, but it will be more dangerous and, in the long run, irreconcilable with the interest of the nation if we take the constitution just as a 'closed texture', and fail to lay present postulates over constitutional practice to show the best route to a better future.
We should carry the constitution; we should keep its sanctity uncompromised; and above all we should continue it writing, as if it were, what Dworkin likes to see, a 'chain novel'.
The writer is studying law at the University of Dhaka.