February 14, 2009

LAWYERS, backed by several political parties notably the Pakistan Muslim League-N and civil society, have announced to march on Islamabad on March 16 to force the government to reinstate the members of the superior judiciary deposed vide the proclamation of emergency and provisional constitutional order (PCO) on November 3, 2007.

A few months back, a march to Islamabad was staged with the same objective. Will the planned march meet the same fate as the earlier one? Is it the appropriate way to get the judges restored to their offices? While these are important questions, a question of no less significance is the constitutional status of the lawyers’ demand.

Essentially there are two views regarding reinstatement of the judges. One view is that the judges cannot be reinstated unless parliament by a two-third majority disapproves of the PCO and the subsequent amendments to the constitution. The other view, to which the lawyers’ movement subscribes, is that a constitutional amendment is not required to reinstate the judges and that an executive order backed by a parliamentary resolution (by a simple majority) is sufficient to reinstate the members of the superior judiciary.

The Bhurban declaration of March 9, 2008, jointly signed by the PPP and the PML-N, provides that the members of the superior judiciary would be restored by parliament vide a resolution. Later the PPP backtracked on its word and came up with the argument that reinstatement of the judges required nothing less than an amendment to the constitution. The PML-N on the other hand has stuck to its stance. Though most of the deposed judges are back to the bench, significantly, they have been re-appointed rather than reinstated.

The ruling party argues that the issue of the reinstatement of the judges has been hijacked by political parties in the opposition and that the deposed chief justice of Pakistan has become so partisan that he cannot be restored to his office. While the demand for the judges’ reinstatement has unmistakable political dimensions, this cannot be the reason for brushing the issue aside, because it is bound up with the principle of the sanctity of the constitution.

Being the basic law of the land, the constitution is supreme and inviolable. That is why no constitution in the world provides for its own abrogation or even suspension. Any attempt to abrogate or suspend the constitution is a repudiation of its sanctity, supremacy and inviolability and thus an unconstitutional act of the highest order. Since the original act of November 3, 2007 — suspension of the constitution — was unconstitutional, illegal and unlawful, all subsequent actions taken to give effect to that act including the proclamation of the Provisional Constitutional Order (PCO) and removal of the judges were also unconstitutional.

The foregoing gives rise to two questions: Can an unconstitutional act become constitutional subsequently? And if yes, who is authorised to make an unconstitutional act constitutional? The answer if we go by a strict interpretation of legal norms is that no person or body is authorised to put its seal on an unconstitutional act and make it constitutional. This is logical because, all persons and institutions derive their powers from the constitution and the only test of the constitutionality of their actions or orders is their conformity to the constitution. An act or law is constitutional if it is in accordance with the letter and spirit of the constitution. Making an unconstitutional act constitutional is at variance with the letter and spirit of the constitution.

It follows therefore that nobody including parliament can legitimately put its seal on an unconstitutional act. The only possible exception is the British parliament, which is sovereign. Whatever laws it passes are constitutional. However, in case parliament is not sovereign, like our parliament, and there are certain limits on its powers, the laws passed by it must stand the test of constitutionality.

For instance, under Article 8 of the constitution, parliament cannot make a law which is in conflict with any of the fundamental rights. Parliament also cannot make any law which is inconsistent with the basic character of the constitution. No doubt, parliament can amend the constitution but a constitutional amendment has to be within the basic character of the constitution. This is confirmed by the very wording of Article 239, which confers on parliament the power to “amend” the constitution. The lexical meaning of the word “amend” is to make minor improvements in a document through addition or deletion. This clearly means that any amendment to the constitution has to be within its basic framework, otherwise it will not be minor.

In the past on two occasions, parliament has been made to validate unconstitutional acts vide the Eighth Amendment and the Seventeenth Amendment. Both amendments not only validated unconstitutional acts but also defaced the constitution.

In the backdrop of the preceding discussion, let’s return to the issue of the judges’ reinstatement. The declaration of emergency, suspension of the constitution, proclamation of the PCO and removal of the members of superior judiciary were unconstitutional acts, simply because they were in conflict with the relevant constitutional provisions. To begin with, the constitution does not authorise the COAS to clamp emergency; that power is vested only in the president (and is to be exercised on the advice of the prime minister). Moreover, the proclamation of emergency cannot hold the constitution in abeyance.

Secondly, no one including parliament can suspend the constitution. In fact under Article 6, any attempt to subvert the constitution is an act of high treason. Thirdly, since constitution cannot be suspended, a provisional constitutional arrangement is also unconstitutional. Finally, superior court judges can be removed only by the president on the recommendations of the Supreme Judicial Council (SCJ) in accordance with Article 209 of the constitution.

Hence, the removal of the judges being unconstitutional, no person or body can make them constitutional. Politics aside, there was thus never the need for a constitutional amendment to reinstate the judges and an executive order should have been sufficient to make them functional again.

Let’s admit for the sake of argument that parliament can validate unconstitutional acts as it did on previous occasions. But even in this case, the November 3rd proclamation of emergency and PCO can be validated only if approved by parliament by a two-third majority in accordance with Article 239. They shall remain invalid as long as parliament does not validate them. Hence, even on the strength of this argument, reinstatement of the judges does not need parliament’s approval.

In fact, parliament’s approval (by a two-third majority) is needed if the purpose is not to reinstate them. All that is needed for their reinstatement is an executive order. Those who aver that a constitutional amendment is needed to reinstate the members of the superior judiciary are putting the cart before the horse: a constitutional amendment is needed to validate unconstitutional actions including amendments to the constitution made in an unconstitutional manner, but it cannot be inferred from this that a constitutional amendment is also needed not to validate such acts. Unconstitutional acts unless validated by parliament will remain unconstitutional.

hussainhzaidi@gmail.com