The 90-Day Suspension Clause
In the Republic of Meridia, Parliament has 340 of 500 seats and recently passed the Public Interest Review Amendment. The amendment lets a cabinet minister suspend any High Court judgment for 90 days when 'public order' is threatened, and creates a seven-member Judicial Appointments Commission in which four members are named by the president. The constitution states that judges hold office during good behaviour, that courts have the power of judicial review, and that fundamental rights may be restricted only by law. Two High Court benches have struck down the amendment. The government replies that Parliament, with a 68 per cent majority, is the direct voice of the people and that courts cannot overturn a constitutional amendment. Opposition parties have 160 seats and are considering a no-confidence motion. The president, who is from the same party as the government, has not yet assented. A constitutional court must decide the dispute within 60 days, and the chief justice asks for a reasoned framework rather than a political settlement.
1. Assess the amendment against separation of powers and the rule of law. Is the dispute adequately described as parliamentary sovereignty versus judicial review?
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The amendment breaches separation of powers in substance. A minister suspending High Court judgments for 90 days makes the executive a supervisory authority over the judiciary, even if the suspension is temporary. The appointments commission, with four of seven members named by the president, also threatens judicial independence because the executive can shape the bench that reviews its actions.
The dispute is not merely 'Parliament versus courts'. Under a constitution that entrenches judicial review and rights, Parliament is not sovereign in the unlimited sense; it exercises a delegated, limited law-making power. The rule of law requires that legal limits bind the government and that an independent court decide whether they have been exceeded. The 68 per cent majority gives political weight, not legal immunity.
The court should ask whether the amendment destroys the essential function of judicial review, whether less restrictive means existed, and whether the appointment process preserves institutional independence.
2. What test should the constitutional court use? Distinguish constitutional supremacy from parliamentary sovereignty.
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Parliamentary sovereignty means the legislature can make or unmake any law, and courts cannot invalidate it. Constitutional supremacy means the constitution is the higher law; legislation and amendments are valid only if consistent with it, and courts enforce that hierarchy.
The court should use a two-stage test. First, does the amendment comply with the constitution's amendment procedure and its entrenched core, such as judicial review and judicial independence? Second, if rights are restricted, is the restriction prescribed by law, directed at a legitimate aim, necessary and proportionate? A 90-day ministerial suspension is likely to fail the necessity test if a court stay or expedited appeal would suffice.
The court should not decide whether the policy is wise. It should decide whether the amendment preserves the institutional conditions that make constitutional review possible. If it removes those conditions, the amendment is invalid, whatever its majority.
3. Would a no-confidence motion be an adequate opposition response? Explain its limits and its proper use.
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A no-confidence motion is a legitimate political weapon, but it is not an adequate response on its own. It can remove the government if it commands a majority, yet it cannot invalidate the amendment, protect the two judges, or prevent a future government from repeating the measure. With 160 of 500 seats, the opposition cannot carry the motion unless government members defect.
Its proper use is to force public debate, test the government's majority, and build a record for the constitutional court and the next election. The opposition should combine it with a legal challenge, a request for interim protection of the judges, and a public campaign explaining why judicial independence matters.
If the president has not assented, the opposition should also press for constitutional scrutiny before assent. The motion is therefore a supplement to legal action, not a substitute for it.