Are the institutions ready to clash? – by Shafqat Mahmood

Reality check
Friday, April 23, 2010

The lines are being drawn on the 18th Amendment for the mother of all legal and political battles.

Arrayed on one side is the entire political class, reflecting a rare and historic consensus on the basic framework of running the state. Lined up against it are some well-known lawyers, prominent retired judges, a few of the bar associations and a section of the media.

While the judiciary has obviously not spoken on specifics, it has publicly asserted its right to review constitutional changes. The message this conveys is that it is not a disinterested party and some of the amendments are liable to be struck down.

If this does indeed happen, it could lead to a showdown between the politicians and the judiciary, and that will make earlier skirmishes seem like a ping pong match. The much-dreaded clash of institutions would finally be upon us and it could lead to state paralysis. This is something the nation can ill afford.

If it was only a legal controversy, some way out of it could have been found. But it is not. Lurking under the barrage of ostensibly technical interpretations scattering the media are deeply felt wounds and a desire to settle scores.

Within the anti-amendments camp, some hate Zardari and others this entire political order. They would love the judiciary to take on the political class and show who is boss. In the process, at a minimum, they hope Zardari will be ousted and, if enough chaos is created, maybe the entire political order.

The ruling party understands this, but after achieving a broad consensus among the political forces is gleefully anticipating this battle. It would rather fight on the principle of parliament’s supremacy than on the issue of implementing the NRO decision.

This is understandable, because on the latter issue it has no case. The decisions of the Supreme Court have to be implemented by the government, whatever it might think of them. There are no ifs and buts about it. The political support that the government has on this matter is also thin, perhaps because of its weak legal position.

But the situation is different with regard to the constitutional amendments. On this matter, its legal case appears to be strong. Article 239 specifically prohibits the courts from adjudicating on constitutional amendments.

This business of inherent structure of the Constitution that some people trot out — and are counting on to legally dismantle the amendments — has a very flimsy foundation. How can the basic structure of the Constitution be determined?

This assumes and, forgive me for using a complicated philosophical term, that there is an a priori structure. In other words, something existed before the Constitution came into being, and will always be deemed to exist.

If one accepts this hypothesis, it would mean that besides the living Constitution that parliament approves according to the prescribed procedure, there is another structure besides it. The question is that if this imaginary structure has not been approved by the parliament, where has it come from?

If the judiciary is the repository of this imagined structure and can rule what is in line with it or otherwise, it functions above or beyond the living Constitution. The Constitution is, of course, written, and everyone can read it and see it. No one knows what the basic structure is until the judiciary tells us what it is. This makes it a supra-constitutional body.

If for holding the amendments “justiciable” reliance is made on the Holy Quran and the Sunnah, as the chief justice has done in one of his speeches, it opens a big Pandora’s Box. Every institution, including parliament, could then theoretically be held against the essential tenets of Islam. Indeed, some of the strict interpretations made by religious scholars are against the entire parliamentary form of government. Are we ready to wade into these waters?

Let me add here that I have serious reservations about some of the amendments. The removal of the party elections clause and the unchecked power given to party leaders are abhorrent and against the spirit of democracy. The correct remedy is another amendment according to the prescribed constitutional procedure. It should not become a legal battle that pits one institution against the other.

I also fully endorse the Supreme Court judgment on the NRO and think that there are legitimate questions regarding Mr Zardari’s eligibility to hold high public office. These issues were, and are, “justiciable,” and there is no reason why the courts should not explore these further. But should they second-guess constitutional amendments?

Another strange argument being made by some is that only a constituent assembly can change the Constitution. This is ridiculous. Constitutions are living documents and can be changed according to a procedure laid down within them. In our case, it is done through a two-thirds majority in both houses of parliament. Any other conclusion by so-called eminent jurists is beyond reason.

The political calculus is also against those wanting to take on parliament through the judiciary. It is rare in our history to have a political consensus. It came about for these amendments. Nothing signified this coming together more than Nawaz Sharif’s participation in the signing ceremony at the Presidency.

If the Supreme Court chooses to strike these amendments down, it would be going against a broad national consensus. Those looking towards another lawyers’ movement in the judiciary’s support should keep in mind that its strength came through complete unity in the legal fraternity and backing of the political forces. Among them, the PML-N and Mr Nawaz Sharif personally played a critical role.

These two ingredients do not exist anymore. The lawyers are divided. In fact, some of those leading the movement for the judiciary’s restoration – and closely associated with the chief justice – are against judicial review of the constitutional amendments.

The consensus among political parties also means that any striking down of the amendments would have zero political support. In the event of a clash between institutions, the judiciary and a section of the lawyers lining up behind it would be on their own.

If in the process the judiciary gets weakened, it would be a tragedy. The nation wants an independent judiciary. It took a long struggle, not just by the legal community but the political forces and ordinary citizens, to bring it about. Nothing should jeopardise it.

Those suggesting adventurism to the judiciary are no friends of the court. They have their own agendas. A new balance has begun to emerge in our body politic between the courts and the executive. This should be nurtured and preserved.




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