Can the courts save a Constitutional Democracy?

Chief Justice of India NV Ramana’s address at the PD Desai Memorial Lecture has rekindled the existential question faced by courts in constitutional democracies: “Can the Courts save a constitutional democracy”?

Justice Ramana’s views are now seen as a necessary illuminating light at the end of a long tunnel of India’s constitutional comatose. His views on the traditional role of the courts as protectors of constitutional freedoms was welcomed when he stated,

“It has always been well recognized that the mere right to change the ruler, once every few years, by itself need not be guarantee against tyranny.”

Also tugging at the heart strings of our constitutional experience in the recent troubled years is the question - how safe are our constitutional freedoms and do they have the permanence which we believed in? The CJI’s address charts out that the sine qua non to protect our freedoms is the independence of the judiciary. It is a necessary signal to end the prevailing constitutional whataboutery.

“For the judiciary to apply checks on governmental power and action, it has to have complete freedom. The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the floor would become illusory."

This truism elaborated by the CJI is evidenced in the constitutional experiences of four countries— Germany (1933-45), Pakistan (1958), United Kingdom (2019), Sri Lanka (2018) as examples of how the highest constitutional courts can destroy or save a democracy.

Germany: Mystery of the vanishing liberal Constitution

The first illustration, which comes up time and time again for discussion in modern democracies, is the role played by the judiciary in Nazi Germany. It has always baffled legal historians as to how crimes against humanity of unimaginable scale and magnitude could be committed when there was a supposedly independent judiciary in place. How did the regime manage to transform the liberal German Weimar Constitution into an instrument of oppression, discrimination and finally the Holocaust leading to the murder of 12 million dissidents, communists, socialists, gypsies and homosexuals including 6 million Jews?

The legal and historical research portrays Nazi judges as compliant servants of the regime who “engaged in an unholy masquerade of brutish tyranny disguised as justice” and converted the German judicial system into an “engine of despotism, conquest, pillage, and slaughter”.

In January 1933, the Nazis came to power in Germany. This was followed by a wave of violence, and in February, an unexplained fire took place in the Reichstag, the German Parliamentary building. The Nazi government accused the communists of having set fire to the Parliament. Five persons were brought to trial. Under the Weimar Constitution, high treason was to be tried by the Supreme Court of Germany. The Supreme Court of Germany, true to its western legal traditions, conducted a fair trial and acquitted four of the accused and convicted one person.

The acquittal led to the emasculation of the jurisdiction of the Supreme Court in 1933 and transferred it to the newly established People’s Court. Then came the enactment of the dreaded Nuremberg Laws (1935) which stripped the Jews of citizenship, disfranchised them, and deprived them of basic human rights. Nuremberg Laws were the key signal to the police machinery and the judicial system. It set into motion the prelude to what was to follow.

Karl Lowenstein, in his authoritative and vastly influential piece in the Harvard Law Journal (1948) titled ‘Reconstruction of the Administration of Justice in American Occupied Germany’, passed a judgment on an entire generation of German judges, but was careful enough to note the role played by sitting judges who resisted the Nazi regime from within:

“But not a single case is reported in which a judge who resigned was sent to a concentration camp, or even lost his pension. If he wished, he could leave the service and “sit the regime out” on his pension. Though such cases occurred not too frequently, they were known and widely commented on by the judiciary. Moreover—and this too was fully known—there were some judges, particularly among the older generation, who, neither resigning nor yielding, resisted pressure to the end.”

Extensive historical research studies conducted by historians Hans Mommsen and Hubert Schorn, and scholars like Judge Bernd Ruthers and Justice Heiko Maas have illustrated examples of opposition to transgressions of human liberties mounted from within the judiciary. German Judges Lothar Kressig and Karl Steinmetz, the Appeal Court (Oberlandesgericht) Judge Alfred Weiller, Judge Willi Seidel and many others showed how judges, by using their judicial training and skills, could protect the liberties of the Jews. Judge Konrad Morgan, who deposed before the Nuremberg Tribunal, prosecuted several leading SS officials in charge of the various concentration camps and even issued a warrant of arrest against Adolf Eichmann. Judge Lothar Kreyssig set out why he was not resigning:

“It would let the contradictions sink into oblivion and leave the field open to those who had been led astray.”

The most celebrated of the resistance of the judges was the case of Martin Niemöller. He led a high profile resistance to the Nazification of the German Protestant churches. For the Gestapo, it was a necessary conviction and the judges were handpicked for the task. The judges, however, refused to sentence him to prison, and instead fined him 2000 Reich Marks, which led a Swiss newspaper to comment “there were still judges in Berlin.”

Martin Niemöller, despite the court verdict, was never freed by the Nazi regime and was transported to various concentration camps. After the war, he became a rallying figure for freedom and against fascism. He died by coincidence in the Orwellian year of 1984. He is the author of the much quoted, and eternally poignant poem which is engraved at the New England Holocaust Memorial in Boston, Massachusetts. It reads, now with ever more urgency:

First they came for the Communists, and I didn’t speak up, because I wasn’t a Communist.

Then they came for the Jews, and I didn’t speak up, because I wasn’t a Jew.

Then they came for the Catholics, and I didn’t speak up, because I was a Protestant.

Then they came for me, and by that time there was no one left to speak up for me.

The Weimar Constitution was in place during the entire period (1933 to 1945) of the Nazi regime. Article 48 of the Constitution enabled the President to suspend civil rights on the predictable grounds of law and order, public safety or threat to the security of the Reichstag. Germany under the Weimar Constitution had a thinly laid out fundamental rights clause and even vaguely alluded to liberties in the nature of habeas corpus. The Enabling Act of 1933 robbed the Constitution of its feeble protections. However, the constitutional safeguards for striking down laws contrary to the Constitution were conspicuous by their absence. This was unlike Constitutions of the United States, India, modern Japan and many postcolonial Constitutions. With its inherent limitations, combined with the timidity of their judges, the Supreme Court of Germany could not pose an institutional challenge to the destruction of the democratic Weimar Constitution or the impending Holocaust.

Pakistan: A Constitution broken, many times over

President Iskander Mirza of Pakistan in 1958 had lost his popularity and was not ready to face elections. At his instigation, General Ayub Khan staged a coup and enacted the Martial Law [The Law (Continuance in Force) Order 1958]. It stripped the court of its powers of judicial review.

The legitimacy of the Martial Law Administration came under judicial scrutiny in a strange and indirect way, 600 kilometres away from the capital in Karachi, in Baluchistan. One accused named Dosso was convicted for murder by a Council Of Elders in the province of Baluchistan, a power which it derived from an archaic 1901 law. The High Court struck down the conviction, holding that no such power existed after the coming into force of the Constitution of 1956. It was taken in appeal to the Supreme Court of Pakistan. The Dosso case would, by deciding upon the power of the Tribal Council, inevitably decide the supremacy of the Constitution of 1956, and consequently, the legitimacy of the Martial Law itself.

At this nascent stage of Pakistan’s history, Chief Justice Muhammad Munir and his brother judges wrote a stunning judgment, signing the death warrant for the Constitution of Pakistan and its democracy. In Dosso, the judges invoked the jurist Hans Kelsen, who propounded that the legal system derived its validity from the ‘Grundnorm’ or ‘new legal order’. A successful coup d’état, Kelsen rationalized, created a new ‘Grundnorm’. The judges concluded that a successful revolution took place under Iskander Mirza, and therefore, the Martial Order of 1958 was legitimate law. The infamy of the Dosso judgment did not deter its rampant and widespread use as a precedent. Every despot across the globe cited this constitutional dictum to great success before pliant judiciaries.

It took 15 years for the Pakistan Supreme Court to reverse its ignominy in ‘Dosso’. General Yahya Khan had staged a coup in 1969. The indefatigable Asma Jilani was detained under the new Martial Law of 1971. She challenged her detention by the new ‘usurper’. Chief Justice Hamoodur Rahman and his brother judges rejected the judgment in ‘Dosso’. They found it untenable to give legitimacy to “every person who was successful in grabbing power.” General Yahya Khan resigned a day before the judgment.

The Supreme Court of Pakistan’s glory was short lived. In 1977, General Zia-ul-Haq staged a coup and declared Martial law. The Supreme Court was petitioned by Nusrat Bhutto for the release of the former Prime Minister Zulfikar Ali Bhutto. The new Chief Justice was Sheikh Anwarul Haq, who was neither a lawyer nor a judge, but had the distinction of being the General’s personal friend. The Court now did a reverse flip. It overruled Asma Jilani vs. Government of the Punjab. The Court did not resurrect the much maligned Dosso verdict. Instead, it now propounded a new and even more dubious rationale. The Court gave judicial sanction to the Martial Law by citing “widespread disturbances” and “loss of confidence in the civilian administration”.

Emboldened by a reticent and often compromised judiciary, Pakistan has had to spend more than three decades post-Independence under military rule headed by tyrants of various hues. Thereafter, it has spent under feeble and tenuous civilian administrations forever fearful of a military takeover.

The UK Supreme Court: Preserving the gold standard of Parliamentary democracy

Prime Minister Boris Johnson of the United Kingdom (UK) wanted to walk out of the European Union without an agreement, which was called the ‘No-Deal Brexit’. The majority of the members of Parliament were opposed to it. He advised the Queen in late August 2019 to prorogue the Parliament to a date much after the exit date for the UK to leave the European Union. The object of the prorogation was to prevent Parliament from carrying out its constitutional role of scrutiny. The UK Parliament, considered a gold standard, was shut down in a display of raw power.

The decision of the Prime Minister was challenged before the Supreme Court of the United Kingdom. As with all constitutional challenges, Johnson’s lawyers arrayed a range of clichéd defences. The courts, Johnson’s lawyers argued, cannot decide political questions. The Court brushed aside the objections citing the earliest interventions in the Case of Proclamations (1611) and Entick v. Carrington (1765), where similar challenges were repelled. It had to remind that “many if not most of the constitutional cases in our legal history have been concerned with politics in that sense."

Then came the ingenuous argument that the Prime Minister’s accountability to Parliament was a sufficient safeguard, and therefore, courts should not intervene. The Court maintained that the very effect of prorogation was to prevent the operation of ministerial accountability to the Parliament. The Court concluded that the “fact that the Prime Minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts.”

This was followed by the hackneyed argument that the courts intervening will offend separation of powers. The Court held that from the 17^thcentury, English courts have protected Parliamentary sovereignty and the threats posed to it by the use of prerogative powers. The Court found that by ensuring that the government does not use the power of prorogation unlawfully, the court was in fact giving effect to the separation of powers. The Court was also categorical that the advice given to the Queen did not carry any reason to justify the prorogation of the Parliament and was declared null and void.

In September 2019, within a month of the challenge, in 19 pages of terse and precise prose, President Lady Hale and 10 judges of the UK Supreme Court unanimously delivered a verdict reversing the decision of Prime Minister Boris Johnson to prorogue the Parliament. This is one of the two most remarkable judgments of this century.

This decision assumes importance in the Constitutional history of the Court, which, with much needed expedition, asserted the rule of law to prevent the sliding of democracy.

Sri Lanka: To the rescue of the Constitution

President Maithripala Sirisena of Sri Lanka, in October 2018, did what Presidents with an exaggerated sense of power normally do. He dismissed the Prime Minister Ranil Wickremesinghe, the leader of the United National Party (UNP), which enjoyed majority in the House. He appointed the minority leader Mahinda Rajapaksa as Prime Minister.

Rajapaksa, without the numbers, on the strength of the Presidential Order, assumed office and even appointed a Cabinet. He chose not to face Parliament as the anticipated defections to cobble up a majority failed. The constitutional crisis now boiled over into political turmoil. The President now issued another proclamation. This time, he dissolved the Parliament at midnight and summoned a new Parliament to meet 2 months and 10 days later.

The Supreme Court of Sri Lanka found it incumbent "to hear the parties before the court without delay". This judgment authored by Chief Justice HNJ Perera and 6 judges concurring is one of the two most important judicial tracts on how the courts can rescue constitutional democracies. It was delivered in a span of two months, by mid-December 2018.

As it always happens in all constitutional matters, the right to seek judicial review was questioned with great vigour. The objection was brushed aside in view of the clear text of the proviso to Article 35 (1) that nothing should be "read and construed as restricting the right of any person to make an application under Article 126 against the Attorney General, in respect of anything done or omitted to be done by the President in his official capacity”. The expression “Grundnorm” assumed a new tone. The Court, piquantly, put it that the sovereignty of the people was the Grundnorm of the Constitution. The Court most eloquently held that the Fundamental rights were "part of the intangible heritage of the people of Sri Lanka" and the Court was "giving tangible and effective life and meaning to the sovereignty of the people."

Did the President enjoy absolute immunity? In an incisive critique of the argument, the Court stated that the nature of powers sought to be attributed to the President was that of an unrestricted “omnipotent power held by a monarch." The Court declared,

"Since 1972, this country has known no monarch and this court must reject any submission that carries with it a suggestion to the contrary."

The Court held that to the exclusion of the power to declare war and peace by the President, "all his other powers are subject to review by way of an application under Article 126." The President's power "is neither untrammeled nor unrestrained, and ought to be exercised within limits," it further held. The Supreme Court of Sri Lanka thus aside the President's order dissolving the Parliament.

Generally, demagogic Presidents get away with constitutionally aberrant behaviour. Sri Lanka has had more than its share of civil strife, sectarian conflicts and even a long running fratricidal separatist war which almost tore the country apart. But this was Sri Lanka's painfully constructed Constitution that the Court was saving. The curtains fell on this sordid display of constitutional perversity (quite unlike Pakistan), because of the fortitude of the Court. Whatever the future holds, December 13, 2018 will go down in the history of Sri Lanka as the day when its Supreme Court saved its Constitution, tightened the constitutional grip over delinquent authorities and subjected them to the rule of law.

Conclusion

The role played by the judiciaries in the four jurisdictions separated by time and space will forever be cautionary tales. Both in the case of Germany, where the courts yielded, and in the case of Pakistan, where its Supreme Court actively buttressed the paradigm that political power determined the constitutional substructure, ended in disaster. Whereas the Supreme Courts in the United Kingdom and Sri Lanka unanimously and decisively, mustering their constitutionally ordained independence, tempered the political power to fall in line with Parliamentary democracy, constitutional morality and accountability. They swiftly nipped in the bud attempts to upend democracy.

Karl Popper’s ‘The Open Society and its Enemies’ is one of the greatest works of the 20^th century. In its concluding chapter titled ‘Has History any Meaning?', he spells out the importance of the role of history in our actions and our resolve to preserve democracy:

“History has no meaning….But this contention does not imply that all we can do about it is to look aghast at the history of political power, or that we must look on it is as a cruel joke….We can interpret the history of power politics from the point of view of our fight for the open Society, for a rule of reason, for justice, freedom, equality, and for the control of international crime.”

The answer to the question ‘Can the courts save a constitutional democracy?’ is, therefore an emphatic ‘Yes’ . It is for each generation and those manning the Courts at those points of time who can determine the fate of a constitutional democracy for which, as the CJI emphasized, the key is ‘independence’. As Popper said, we can “in this way even justify history, in our turn. It badly needs a justification".

This article is dedicated to the memory of Father Stan Swamy, who passed away on July 5, 2021, and who in the darkest hours of his incarceration, worried about our democracy, the need for social and economic inclusion and the tragic fate of fellow under trials.

The author is a Senior Advocate of the Supreme Court of India.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.