The quest for a transformative People’s Constitution (Part 3)

As discussed above, the constitution is laden with values that were inputted by the sovereign people. These values such as, human dignity, freedom, justice, liberty, and equality. In my many moments of debating with myself I have wondered whether our time tested and cherished value of “Therisanyo” can be part of the extra constitutional value that can be harvested in the engagement with the issue of the amendment power exercised by Parliament. The HCJ ruled that if an amendment degrades these constitutional values, the Court will not shy away to declare the change as void even if all the procedural steps were followed in its enactment.



There are also extra-constitutional values which, although not explicitly written in the constitution, nevertheless complete the instrument. Examples of these extra-constitutional values are ethical and democratic norms which are universally recognized as part and parcel of democratic societies.



Procedural correctness alone will not legitimize a constitutional amendment if the substance alters the constitution drastically, so much so that the foundational values and principles of democracy are rendered naught.



In the case of Movement for Quality Government in Israel v. the Knesset, the petitioners sought the Israeli Supreme Court, sitting as the High Court of Justice (HCJ), to strike down an amendment to a basic law, removing the power of Israeli courts to use the “patently unreasonable” doctrine when judicially reviewing executive branch decisions taken at the ministerial level. The law, subject of this case, was passed on July 26, 2023, as an amendment to the Basic Law: Adjudication.



On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court can exercise authority to conduct judicial review of basic laws and to intervene in exceptional, extreme cases in which the Knesset deviated from its constituent authority.



A majority of the Court (8 of 15 justices) further held that Amendment No. 3 to Basic Law: The Judiciary represented an extreme deviation from the Knesset’s constituent authority that left no alternative to the Court but to declare the amendment void.



It was the first case in the country’s history in which all the fifteen (15) justices of the court sat on the panel. A broader majority of twelve (12) out of fifteen (15) accepted that the HCJ has, in principle, the legal authority to review constitutional amendments.



Issues



Two issues fell for determination: The first issue was whether the court has the legal authority to strike down basic laws or amendments to basic laws. The second was, if the court does possess this authority, whether the constitutional amendment should be struck down.



Constitutional values and extra – constitutional values



At the end of the day the majority of the justices agreed that an amendment of the constitution and or the basic laws is liable to be struck down if it offends basic tenets of a constitutional democracy such as separation of powers, equality and checks and balances or on the basis of some extra- constitutional values.



Extra-constitutional values



There are views wherein constitutional adjudication is not primarily a matter of construction. Some view the Constitution as a document virtually without legally significant discernible meaning. Rather, the Constitution is seen as a text whose meaning must be created by judges supposedly sensitive to changing social conditions. Judges must be mindful of the value statements such as: the well-being of the society, deeply embedded cultural values, moral evolution, human dignity, the living development of constitutional justice, welfare rights, the national will, and the principle of equality. These extra-constitutional values are given as the basis for determining constitutional meaning.



A purpose of a written constitution is to confer democratic legitimacy by formally expressing the consent of the people to the government's exercise of its authority. Thus, in a democracy or a republic (as opposed to a constitutional monarchy or oligarchy), the Constitution becomes a social contract by which the people agree to be bound by laws which are made pursuant to and in accord with the constitution's commands.



Another purpose of a written constitution is to prevent the arbitrariness and whimsical acts on the part of the body politic from overriding fundamental values and principles. Bills of rights in constitutions typically perform this function of preserving basic civil rights which can help preserve a balance between the need for order and the desire for freedom.



Around the world judiciaries have developed principles to test whether an amendment to a national constitution could be declared unconstitutional. (Singh v The State of Rajasthan; Golakenath v State of Punjab; Bharati v The State of Kerala). The supreme Court in India has held that the power of Parliament to amend the Constitution is limited, it could not by amending the Constitution convert its limited power into unlimited power. (Minevera Mills Ltd v Union of India AIR 1980 SC 1789.



Some Constitutions specifically attempt to limit the type of amendment which can be made, or specific principles are protected from amendment. An example is the French Constitutions that have generally provided that: “the republican form of government shall not be the object any amendment” (Art 89 of the 1958 Constitution) as would alter the basic structure of the Constitution.



Other Constitutions attempt to protect the whole of the principles in the constitution such as the 1814 Constitution of Norway which provided that amendments “ must never...contradict the principles embodied in this constitution, but solely relate to modifications of a particular provision which does not alter the spirit of the constitution.”



Summation



A transformative constitution must place the apex court in particular, as the chief guardian and protector of the democratic process. Superior Courts are generally considered guardians of the people’s rights, bulwark of democracy, and beacon of justice and light.



The twin principles of equality of powers and checks and balances among the three branches of the government ensure public accountability and that the best interests of the people are advanced.



The principle of checks and balances prevents authority from being concentrated in one branch. Each branch is supreme within their own sphere. It does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government.



Separation of powers is a fundamental principle in our system of government and is founded on the belief that, by establishing equilibrium among the three (3) power holders, harmony will result, and power will not be concentrated, and tyranny will be avoided. Any system that is violative of the principle of separation of powers is unconstitutional and void.



Each of the three branches of government has exclusive cognizance of and is supreme in matters falling within its constitutionally allocated sphere; each branch cannot invade the domain of others. Powers of the government are separated to avoid concentration of powers in any one branch.



Whereas separation of powers means the existence of three equal powers: legislative, executive and judicial, each carries its own functions, separation of powers, does not mean that each branch can act ultra vires without the other branches’ interference. Consequently, it can be argued that the Supreme Court’s supervision of the legislative process the court’s action can be construed as in keeping with the principle of separation of powers. It intervened to preserve balance of power and prevent abuses from the other branches of government such as the legislative branch.



Conclusion



I think is not late for us as a collective, to heed the voice of those who say we took the wrong path to amend our constitution and that we did it half-heartedly. We can still go back to the drawing board, give it another two years, involve all stakeholders, pass an enabling legislation to govern the process, conduct civic education and utilise internal and external experts in creating a constitution of our dreams. This we owe to our people who never had the benefit of a meaningful participation in creating their constitution. Once we get the process right we can learn from the best in terms of content and have a constitution that subjects the exercise of power to the law and people; including creating a pathway in the constitution that gives the people direct authority to initiate the amendment of the constitution if they wish.

We need a new constitution that can effectively hold the exercise of power - whether public or private - accountable to the law - a constitution that can effectively redistribute power and resources in an egalitarian direction. We need a transformative people driven constitution if we are committed the rule of law and not the rule by men and women.

*Hon Justice Professor Dingake – Justice of the Supreme and National Courts of Papua New Guinea and the Residual Special `Court of Sierra Leone. This is the third and final part of his public lecture presented virtually at the recent Motheo o Mosha public lecture