Threat to constitutional order?

Published August 18, 2014
The writer is a lawyer.
The writer is a lawyer.

In an unfortunate ruling, which went unheeded, the Lahore High Court (LHC) restrained the Pakistan Tehreek-i-Insaf (PTI) and the Pakistan Awami Tehreek (PAT) from launching their marches. One wishes the court had applied restraint instead of jumping into the political thicket. It could have employed the political question doctrine and held that matters quintessentially political are best left to the executive or the legislature to resolve. It could have considered that the petition was premature with no basis to presume that the PTI or PAT would employ illegal means to enforce their demands.

The outcome aside, the court’s reasoning is also unpersuasive. Why should a court declare prima facie unconstitutional political demands seeking the prime minister’s resignation, the parliament’s dissolution, the Election Commission of Pakistan’s (ECP) reconstitution and formation of an interim government of technocrats? Can a court predict in advance that a political party will use coercion to seek their implementation as opposed to rallying public opinion to bring moral pressure to bear on the government?

Our Constitution and laws are political documents that are the outcome of political process. Which law prohibits citizens from demanding the resignation of a public official due to lack of performance or diminished moral authority? Can the parliament not promulgate a constitutional amendment to reconstitute the ECP? Can the government and the opposition not join hands to nominate an interim government of technocrats?

The interim order ruled that “unconstitutional” marches are not to be held, “keeping in view the sanctity of the Independence Day”. Should courts rely on political arguments while rendering judicial decisions? Does the Constitution state that fundamental rights to freedom of movement, assembly, association and speech shall stand diminished on sanctimonious days such as Aug 14? And why focus exclusively on possible encroachment of rights by future marches and not on the infringement of rights by the government due to its heavy-handedness (eg blockades, arrests etc.)?


There is only so much that the apex court can do to preserve the constitutional order


In contrast to the LHC order, the interim order passed by the Supreme Court is very measured. It has directed state functionaries “to act only in accordance with the Constitution and the law” and to “be guided by the principles of Constitution and law enunciated in the case of Sindh High Court Bar Association v Federation”. The focus here seems to be to preserve the constitutional order and uphold fundamental rights of citizens during this phase of political turmoil as opposed to picking sides between political adversaries.

But there is only so much that the apex court can do to preserve the constitutional order. The new ‘revolutionary’ zeal of political actors (as old as the hills themselves) is a reminder that expediency remains the grundnorm for political order and change in Pakistan. In times like these, the claim that democracy is now firmly rooted with overwhelming support from across civil and military segments of our society seems wishful.

The fears informing the LHC’s misconceived order or the apex court’s sagacious one are not products of fantasy. Democracy and constitutional order in Pakistan remain frail and need nurturing. The PTI’s politics is disconcerting for it is not only recreating the environment of polarisation and political hostility witnessed in the ’90s leaving little room for peaceful coexistence of political rivals but is also threatening to delegitimise vital state institutions key to affecting any change in Pakistan.

There is no logical link between the PTI’s proposals for change and the mechanics for giving them effect. If the prime minister concedes the PTI’s demands, dissolves parliament and orders fresh elections in 90 days, the elections will have to be held under the existing laws and election commission with no accountability for what happened in 2013. If the priority is to ensure fair and credible elections in future, reform legislation will have to be supported by the present government and passed by the existing parliament.

Our Constitution vests in the prime minister alone the discretion to dissolve the National Assembly prematurely and he can’t be forced to exercise such power at gunpoint. The tenure of existing election commissioners is constitutionally protected and only the Supreme Judicial Council can remove them if they are found guilty of misconduct. What can the government then agree to do other than to appoint chairman Nadra, chief election commissioner and election commissioners (once the term of present incumbents expires) in consultation with opposition parties, including the PTI?

The suggestion of appointing a judicial commission to ascertain whether or not there existed a grand conspiracy to rig the 2013 elections in the PML-N’s favour is also problematic. Appointing commissions under the Pakistan Commission of Inquiry Act, 1956, is an executive function. Can such a commission, even when comprising SC judges, usurp the judicial function vested in election tribunals under Article 225 of the Constitution read with the Representation of Peoples Act, 1976?

Even if such a commission finds as part of its inquiry that a grand scheme of rigging did exist, will its findings be admissible in evidence and binding on election tribunals? Won’t there be need for a judicial forum to consider all evidence and declare that the entire 2013 general elections were rigged and thus void?

Should the SC even agree to conduct an inquiry into election rigging when it is also the authority mandated to hear appeals against election tribunal decisions? And what if the SC-led commission finds that the grand scheme of rigging is a figment of the PTI’s lush imagination? Will the PTI accept such a finding and let the matter rest or add to its previously unsubstantiated charges the allegation that the present SC is an abettor covering up for Iftikhar Chaudhry, its former chief justice?

The problem with the PTI’s politics is that it is leaving little room for a political solution implementable within the existing constitutional order. The partisan movement that the PTI leads is incapable of convincing anyone other than its own supporters that overthrowing the government of a rival party amounts to revolutionary change. What it is doing is exacerbating revulsion against the political class as a whole and reinforcing the mischievous idea that we as a people are unfit for democracy.

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: [@babar_sattar][2]

Published in Dawn, August 18th, 2014

[2]: https://twitter.com/Babar_Sattarstrong text

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