Dawn Editorial, 18 Apr, 2010
Taken at face value, the comments made by Chief Justice Iftikhar Chaudhry on Friday simply restate a known legal approach: “Judiciary supervises a regime of the rule of law and not the rule of men”; the judiciary “has to prevent the arbitrary or illegal exercise of authority”; and the judiciary “may strike down any law inconsistent with the injunctions of Islam as laid down in the Holy Quran and the Sunnah and the fundamental rights as enshrined in the constitution.”
But the chief justice’s timing is rather odd: the 18th Amendment, which has recently been passed by both houses of parliament, has upset some ‘pro-judiciary’ elements in the legal fraternity because they argue that the amendment package impacts on the ‘independence’ of the superior judiciary.
Let’s revisit some constitutional basics here. Article 239 of the constitution after the 8th Amendment specifically ousts the jurisdiction of the courts when it comes to constitutional amendments and explicitly states that parliament may modify, add to or repeal any provision of the constitution. However, judiciaries the world over have been very sceptical of such ‘ouster’ clauses and have tended to strike them down or disregard them. Here in Pakistan, even prior to the present judicial era, the situation was no different: Pakistani courts have always made it clear that constitutional amendments are ‘justiciable’ and that the courts are empowered to examine the amendments for consistency with certain constitutional fundamentals. (There is an irony, though, in the fact that the courts have hitherto always used the justiciability of constitutional amendments to validate them rather than to strike them down.)
Now we come to why it is rather odd that Chief Justice Chaudhry chose the occasion of the National Judicial Conference 2010 to remark on the Supreme Court’s powers to strike down laws. While the court has reserved for itself the right to strike down laws, it is clear even to the layman that such an outcome could easily lead to an institutional crisis. What exactly has happened recently that merits referring to the court’s power in this matter? There is no clear constitutional crisis. Nothing in the 18th Amendment can be plausibly read as undermining the spirit of the constitution or its fundamentals. So why is the top judge in the country publicly talking about his court’s power to strike down laws and “prevent the arbitrary or illegal exercise of authority”? Was this a veiled reference to the tussle between the judiciary and the executive over the implementation of the NRO judgment? Cool heads will be required in the weeks and months ahead; needling of this sort will not work towards achieving that.