Attack on Nawaz Sharif by Ezdi:

Founding principles, not basic structure

Monday, May 03, 2010
Asif Ezdi

The writer is a former member of the Pakistan Foreign Service.

The Nawaz League has done it again. In 1997 it sent its hoodlums to storm the Supreme Court because the party leader did not like some decisions taken by the-then chief justice. Now, the PML-N has warned the Court that, if it strikes down the new procedure for the appointment of the superior judiciary, the party would have to face all “political forces” in the country. The threat was issued by Ahsan Iqbal, who said that the PML-N would accept only the decision of parliament, not the Supreme Court’s judgment.

The other Ahsan, Aitzaz, a leader of the lawyers’ movement and now a restored member of the PPP Central Executive Committee, beat the PML-N’s information secretary to it. He reportedly warned that if the Supreme Court accepted the petition challenging the 18th Amendment, Zardari would convene a session of parliament within a day and parliament would annul the Court’s decision “in seconds.”

The PML-N and the government have hinted darkly that there are hidden hands–i.e., the army and the intelligence agencies–behind the constitutional petitions against the 18th Amendment. All the verbal thunderbolts hurled by the PML-N and the government are clearly meant to intimidate the Supreme Court as it starts hearing petitions challenging the validity of the new procedure for appointing judges.

The question before the Court–whether the judiciary can strike down a constitutional amendment duly passed by parliament and, if so, on what principles–raises fundamental issues. Whichever way the Supreme Court decides, there will far-reaching consequences for the country’s political and constitutional development. If the Court rejects the challenge to the 18th Amendment, it will be giving the political party, or parties, in power a blank cheque to make any change whatsoever in the country’s Constitution if only they are able to muster a two-thirds majority in both houses. If, on the contrary, the Court gives the ruling that the judiciary can invalidate a constitutional amendment, it would widen exponentially the scope of the doctrine of judicial review. This could invite a spate of applications, unless the criteria are narrowly defined and a high bar is laid for meeting them.

The example given by Abdul Hafeez Pirzada of the misuse of this power–an amendment declaring that Pakistan is to become part of India–is clearly a bad one, because it lies beyond the realm of the possible. But there are many conceivable scenarios in which a constitutional amendment is so flagrantly in violation of the most elementary norms of democracy and of justice that it should not be permitted to stand.

In India, during Indira Gandhi’s time in 1975, the Supreme Court invoked the doctrine of basic structure to rule that an amendment which excluded the jurisdiction of the courts over disputes relating to the election of the prime minister was invalid. In Pakistan, a similar situation could arise, hypothetically, if Gilani were found to have obtained the write-off of a loan of two million rupees or more taken from a bank in the name of his wife–something that would disqualify him under Article 63 from continuing as an MNA or prime minister–and parliament were then to pass a constitutional amendment saying that this disqualification does not apply to a prime minister. Another example would be an amendment extending the term of the serving National Assembly or the incumbent president from five to, say, eight or ten years. The question arises whether such amendments should be open to judicial review.

Some of the arguments given by those who oppose a judicial review of constitutional amendments can be easily dismissed. The contention that such a judicial review is not possible because it is specifically excluded by Articles 239 (5) and (6) is clearly untenable, because it is a circular argument. It uses a premise to prove a conclusion that, in turn, is used to prove the premise. These clauses, incidentally, were inserted by Zia to give protection to amendments he had made to validate his martial law.

It has been asserted that the 18th Amendment cannot be challenged because it was passed unanimously by parliament. This too is an invalid argument. The constitutionality of a piece of legislation depends on whether it is in conformity with the Constitution, not on how many votes it received. Even an amendment decreed by a dictator has the same legal force or validity as one which was passed unanimously. Significantly, the Constitutional Reform Committee, which removed Zia’s name, allowed the other amendments arbitrarily made by him to stand.

Not all the arguments of those who reject the “basic structure” doctrine can be dismissed so lightly. They have a point when they say that if there was any immutable “basic structure” of the Constitution, the constitution-makers would have specified it, and that the courts cannot assume the right to determine what the basic structure is without any backing from the text of the Constitution.

But it does not follow from a rejection of the doctrine of basic structure that there are no overriding constitutional principles with which all amendments must be in conformity. These norms do not have to be invented by the judiciary, because they are clearly spelt out in the Preamble of the Constitution. They constitute the founding principles of state and were first enunciated in the Objectives Resolution adopted by the Constituent Assembly in March 1949. They were later incorporated in the Preambles of the Constitutions of 1956, 1962 and 1973. Under Article 2A, the principles and provisions of the Objectives Resolution have been made a substantive part of the Constitution and are to “have effect accordingly.” It is therefore the responsibility of all organs of state to comply with them. In case of any dispute over their interpretation or application, the matter necessarily has to be settled by the judiciary. The courts do not have to determine the “basic structure” but only to apply the founding principles of state as enunciated in the Constitution.

Among these principles are the following: that the state would exercise its powers and authority through the chosen representatives of the people; that Pakistan would be a federation with the provinces enjoying autonomy; and that the fundamental rights would be guaranteed. Since these principles reflect unanimity of views all over the country, their application by the courts should not become a matter of party politics.

A parliamentary form of government is not one of these founding principles, but ensuring the independence of the judiciary is. The procedure for judicial appointments therefore has to fulfil this criterion. The arguments for and against Article 175A have been fully articulated by several politicians and legal experts. But Rabbani, the wisest of the 26 wise men who were members of the Reform Committee, gave a new twist to the issue when he said in a TV interview on April 25 that the proposal for nomination of judges under the new procedure has to come from the chief justice. He does not seem to have noticed that this has not been spelt out in the 18th Amendment and is therefore not a constitutional requirement. The conclusion is inescapable that even Rabbani, like some others in the committee, was not fully aware of what he was signing and recommending to parliament in the committee’s report.

Whatever the fate of Article 175A, there can be little doubt that the new Article 65A, which virtually empowers party heads to decide who the prime minister will be, is not reconcilable with the principle that the state would exercise its powers through the chosen representatives of the people. Since a party head is not such a representative, giving him the power to disqualify a defecting member of parliament cannot be said to be in keeping with the Constitution.

Email: asifezdi@yahoo.com

http://thenews.com.pk/daily_detail.asp?id=237176

Asif Ezdi’s Legal Troubles
May 3rd, 2010 (Pakistan Media Watch)

Mr. Asif Ezdi, a former ambassador to Germany, has some pretty serious legal troubles. Mostly, troubles are understanding how laws work in a constitutional democracy. Last week we wrote about how Ezdi was propagating the latest conspiracy theory in the media about Zardari expanding his powers by signing the 18th Amendment. Today, Mr. Asif is back misrepresenting the debate about judicial review.

In his column for today’s issue of The News, Mr. Asif Ezdi repeats several misleading and, at times, contradictory talking points while he engages in some partisan name-calling. He begins his column by referring to PML-N as “hoodlums” who have issued a “threat” to the judiciary. This is both uncalled for and unprofessional. Even if he does not support PML-N, Mr. Ezdi should take note that this is the second largest political party which holds 97 seats in parliament. As such, PML-N is supported by a large number of Pakistanis. Just because Mr. Ezdi does not agree with someone, it does not make them hoodlums.

He then goes on to suggest that concerns raised by members of PML-N and PPP about the possibility of some “hidden hands” trying to influence the constitution are “meant to intimidate the Supreme Court.” This is curious for two reasons: First, Mr. Asif Ezdi is no child. Actually, he was an Ambassador when Gen. Musharraf was in power. So surely he knows a thing or two about “hidden hands” and the fact that these are sadly not unheard-of in our politics. Second, doesn’t Asif Ezdi have it backwards? Doesn’t it make more sense to say that threatening to overturn the 18th Amendment is the Supreme Court trying to intimidate the government?

Ezdi did learn something since his latest column. He criticizes Abdul Hafeez Pirzada for making claims that are “beyond the realm of the possible.” But then he goes on to suggest that “there are many conceivable scenarios in which a constitutional amendment is so flagrantly in violation of the most elementary norms of democracy and of justice that it should not be permitted to stand.” Obviously this is true, but the question here is not whether there can be some bad amendment to the Constitution. That is obvious from the 17th Amendment.

The question, though, is who is the proper government authority to correct the constitution? The courts did not threaten to throw out the 17th Amendment. It is only the 18th Amendment when they have suddenly declared this power. So the question must be, is this within the rightful authority of the courts or the parliament? This is the actual debate, so let’s stick to it.

Mr. Asif Ezdi is very confused about the term “judicial review”. Judicial review is the doctrine that says that legislative and executive actions are subject to review by the courts to ensure they are compatible with the defining laws of the country. In Pakistan, this is the Constitution. Mr. Asif Ezdi argues that there is something even higher than the Constitution which he calls “basic structure.” But he cannot define what this basic structure is. Actually, nobody can because what it really means is “whatever I say.” That is not democracy, it is dictatorship.

Nevertheless, Ezdi suggests that constitutional amendments should be open to judicial review using a most poor logical sleight-of-hand.

Some of the arguments given by those who oppose a judicial review of constitutional amendments can be easily dismissed. The contention that such a judicial review is not possible because it is specifically excluded by Articles 239 (5) and (6) is clearly untenable, because it is a circular argument. It uses a premise to prove a conclusion that, in turn, is used to prove the premise. These clauses, incidentally, were inserted by Zia to give protection to amendments he had made to validate his martial law.

Ezdi does not realize it, but he has actually harmed his own argument here. First, the argument is not circular, as he claims, but actually answers his question. The court cannot declare the constitution unconstitutional. If there is something in the constitution, then it by definition is constitutional. Second, Ezdi dismisses Articles 239 (5) and (6) because they were inserted by Zia. But if the Supreme Court is responsible for throwing out parts of the constitution that are illegitimate, why have they not thrown these out before? It appears that there is some selectivity to the argument – again, “basic structure” means “whatever I say.” There is no logic to it.

Asif goes on to make more confused statements.

The constitutionality of a piece of legislation depends on whether it is in conformity with the Constitution, not on how many votes it received.

Here is one important clue as to part of Ezdi’s confusion. A constitutional amendment is not a regular piece of legislation like a bill for collecting taxes. Rather, once the constitutional amendment is approved, it becomes part of the constitution. Therefore, it cannot be out of conformity because it would have to be out of conformity with itself. That makes no sense.

Even an amendment decreed by a dictator has the same legal force or validity as one which was passed unanimously.

Here Ezdi is actually proves his entire argument wrong. By saying (correctly) that “an amendment decreed by a dictator has the same legal force or validity as one which was passed unanimously” he is saying that the only way to remove such an amendment is to amend the constitution again. This is what the parliament did in passing the 18th Amendment. Ezdi has made the case for the parliament, even when he did not mean to!

Ezdi continues with his confused explanations by making the following points:

Among these principles are the following: that the state would exercise its powers and authority through the chosen representatives of the people…A parliamentary form of government is not one of these founding principles, but ensuring the independence of the judiciary is.

It is amazing to think that Mr. Asif Ezdi’s logic actually contradicts itself so obviously. Did he not even read his own column before he submitted it for publication?

The conclusion of Ezdi’s column actually sets aside all of his previous writing and says that, whatever else, he is certain that Article 65A is not in keeping with the Constitution. On this, we agree. After all, there is no Article 65A so how can it be in conformity with the document? Actually, perhaps this is the fundamental problem with Asif Ezdi’s columns on the constitution and judicial review: He apparently has not yet read the documents he is discussing.

http://pakistanmediawatch.com/2010/05/03/asif-ezdis-legal-troubles/