How should we think about our constitution? This is a question that all citizens must think, and converse about on a regular basis.

Part of this debate will be about whether the constitution should be seen as a "living breathing" document or, alternatively, one that should simply be interpreted as per the reasonable meaning of its text. Another reason to think and talk about the constitution is that, in the long run, our conversations will have an impact -- on our legislators as well as judiciary.

In a landmark recent judgement, which I have written about in the recent past, a majority of justices of the Honourable Supreme Court of Pakistan accepted the argument that there are limits on the powers of the Parliament to amend this document. Should we celebrate this or be despondent? The answer is: it depends -- on how you read the constitution.

So let’s begin with discussing ways of reading it.

One view is that the constitution should be seen as a "living breathing" document and one that acquires an evolved meaning over time. Proponents of this view see the constitution as an instrument that must respond to the changing times. This discourse also views written constitutions of nation-states as a document "for all times to come". There is much to recommend this view -- based as it is on a desire to ensure that the constitution of a country remains relevant to people’s lives. It should be, the argument goes, an instrument of empowerment rather than one that signals closed doors for the citizenry. This view also favours an expansionist reading of the rights enumerated in the constitution -- so much so that this approach also recognises as "constitutional" those rights that are not enumerated. Hence often leading to enumerated rights being read in a way that creates new rights.

Quite naturally the "living breathing" view encourages the judiciary to continuously read the constitution in an expansionist way. But, critics may argue, that while rights may be expanded by following this view we are inviting judicial activism. In essence, an expansionist reading of rights is an increase in the power of the judiciary. And there is much to this criticism: most, if not all, proponents of judicial activism champion the "living breathing" view.

At the other end of the spectrum is a view that finds it harrowing that a constitution is seen as a "living breathing" document. The argument, from this set of proponents, is that the constitution is not an evolving document. It is an enduring one.

Perhaps the most well-known proponent of this view is Justice Antonin Scalia of the Supreme Court of the United States.

This view is close to the heart of judicial conservatives across the world. The conservatives believe, or at least claim to believe, in judicial restraint. They argue that by conceding that the meaning of the constitution changes over time, we are giving too much power to the judiciary -- since it is the job of judges to interpret the constitution. The fact that the judiciary can essentially create rights not granted by the constitution gives them unparalleled power. And once an institution gets into that habit, it is extremely difficult to persuade it to relinquish that power.

Conservatives might also say, with serious force, that each time we did not follow the text of the constitution we abandoned democracy -- think validation of military coups with doctrines ranging from "necessity" to "revolutionary legality".

But how do conservatives then plan on ensuring the constitution remains relevant to people’s lives? The answer, as per the conservatives, is that the constitution should be seen as a political and not just a legal document. If you want a new right in the constitution then persuade your legislators to incorporate it. Amending the constitution is the conservatives’ answer to ensuring that a constitution responds to changing needs.

Now when it comes to written constitutions, there are various formulas. In the United States it is particularly difficult to amend the constitution since the prescribed procedure requires approval from the state as well as the federal legislatures. In Pakistan, a 2/3^rd majority in each House of Parliament is sufficient to get the job done.

But this is not the end of the story.

And this is where the two views of reading the constitution, alluded to above, become particularly relevant.

Those believing in judicial activism and the "living breathing" argument will go a step further -- and courts have done this in multiple countries, now including our own -- to include in the general power of judicial review the power to review the substance of an amendment to the constitution. Hence, if you are a judicial conservative or someone who believes in judicial restraint, the answer that the "solution is to amend the constitution" will also run into limitations. Even an amendment is no guarantee of achieving the desired effect.

Those believing in the "living breathing" theory in Pakistan must engage with the critics here. Consider this, the argument that the constitution is a "living breathing" document did not appear out of thin air. It has been borrowed from other countries, including the United States, where the constitution has always been difficult to amend. So, the argument went, it makes sense to engage in broad interpretations of the constitution. The "salient features" or the "basic structure" doctrine, that limits Parliament’s powers to substantively amend the constitution, derives its force from the view that since the constitution can be too easily amended, judiciary must maintain a check on the legislators. The two do not square easily.

Who will decide what life can be breathed into our constitution? That is a serious intellectual challenge for those citizens who are proponents of judicial activism. Their own position is not entirely consistent. How is a democracy stronger if a representative institution (no matter how imperfect) that wrote the constitution has to seek the approval of a branch that is not directly accountable to the people?

For believers of judicial restraint, and those who call themselves judicial conservatives, the current times pose a serious challenge also. The proponents of this view, justifiably, take great pride in their belief that the final answer on things as important as constitutional amendments vests with the people’s representatives.

But pride and high-sounding political rhetoric does not win intellectual tugs-of-war. The notion of courts continuously expanding rights, and concomitantly limiting Parliament’s power, is bound to have serious appeal in a country like ours -- politicians sitting in legislatures are viewed with serious distrust. This distrust, of course, has some valid reasons but much of this flows from the tragedy that is the civil-military imbalance with its effective propaganda.

Hence the judicial conservatives are faced with the immensely hard-task of changing the discourse in this country -- this can only be done by engaging with citizens at every level, from schools to the political and professional arena. Pakistan requires an intellectual movement that poses a serious counter-weight to the "living breathing" view and its inconsistencies.

Of course the believers of judicial restraint will not have all the answers, nor will they always be right, but democracy will be weaker if one view of reading the constitution remains unchallenged.

Our Honourable Supreme Court has spoken on the issue but it is time for the citizens to continue this debate. This piece is one small contribution to that effort. And we can all contribute to the debate by buying a copy of the constitution, reading it and talking about it.