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No room for reason?

July 12, 2012


DEMOCRATIC-MINDED citizens should be grateful to the Chief Justice of Pakistan (CJP) for his outside-the-court address in Karachi wherein he has reminded them of the perils the country’s system of constitutional democracy is facing.

Reiterating a recent Supreme Court judgment the CJP declared that the doctrine of the supremacy of parliament “can now be seen to be out of place in the modern era” and now the constitution was supreme. There can be no quibble about the statement that all institutions including parliament must operate within the constitution.

Equally unquestionable is the fact that the principal state organs have their roles fairly clearly defined: the executive must act within the constitution and its actions that are ultra vires of the constitution can be struck down; the judiciary is to interpret the laws and the constitution and, except for the Zia gift of power to the religious court to lay down the lines of legislation, it can neither make laws nor change the constitution; and the legislature cannot make a law in violation of the constitution but it can amend the constitution and, under special authority, draft a new basic law.

True, the judiciary can strike down any legislation on the ground of incompatibility with the constitution but it cannot extinguish the legislature’s power to make laws. All this is common knowledge.

The disclosure that parliament is no longer supreme in Britain must have surprised many and they must have been shocked at the fall of the mother of parliaments. Ordinary people still admire the way the Commons dealt with the executive’s excesses and the effects of court judgments, especially in the area of industrial relations, over the past century or so. Who forced Edward VIII to abdicate? Who dissolved the Empire? Was it not parliament that carried out a comprehensive constitutional reform, and replaced the centuries-old judicial forum of the House of Lords with a supreme court?

From our own history one may recall the Quaid-i-Azam’s success in getting a Privy Council decision on Muslim auqaf set aside through an enactment of the colony’s legislature.

Ordinary citizens also lack the ability to see the country’s constitutional stream as “crystal and undefiled waters” because they cannot forget what has been done to the constitution over the past 38 years, more by military dictators than their civilian pupils, and also by the judiciary that allowed Zia and Musharraf to pollute the constitution according to their whims and caprice.

The reference to the “alien and antiquated 19th century Diceyan concepts” raises many questions. A.V. Dicey’s doctrine of parliament’s sovereignty began to be questioned long ago when fascists succeeded in using parliaments to suppress democracy and it was realised that a parliament’s supremacy was contingent upon the electorate’s unhindered ability to change its composition. In other words, parliament is supreme only where it represents the freely expressed will of the people, the real sovereign in a democracy. Herein lies the difference between the present parliament and the outfits created by Ayub, Zia and Musharraf.

Incidentally, how much of Dicey is being thrown out of the window? Along with the doctrine of sovereignty of parliament he had also enunciated the doctrines of rule of law and constitutional conventions. Have the principles of rule of law and constitutional conventions also become outdated in the ultra-modern state of Pakistan? Writing in 1958, Prof Wade asserted: “It is to Dicey that the politician as well as the lawyer turns whenever a threat to individual liberty is proposed.” Does this Dicey, too, deserve to be dismissed with contempt?

Maybe poor Dicey accidentally fell into a torrent of judicial rhetoric and the real targets are people still wedded to old and antiquated notions of constitutionalism. And that is quite problematic, for Pakistan’s constitution, whose supremacy is being vigorously proclaimed, is based upon concepts adopted by humankind decades before Dicey learnt to write.

The Pakistanis who today stand for democracy, constitutionalism and accountability of all institutions cannot be lambasted for “obsequious intellectual servility to colonial paradigms”. They derive inspiration from the post-colonial concepts of freedom, democracy, adult franchise and social equality and they have fought against authoritarianism and bondage to neo-colonialism many times more and for longer periods than any privileged group or individual. The poor, starving and ignorant people of Pakistan deserve some respect for their commitment to a political ideal they have never been allowed to savour.

Thus the honourable judges need to be wary of anyone who advises them to start authoring new political theories by deposing Rousseau and Locke because in the ensuing debate they could possibly be found in the wrong and no democrat would like the judiciary to become anymore controversial than it already has.

It is possible that the CJP had on his mind the two bills the government had drafted and he wanted to serve advance warning that the SC could use its powers and invoke Article 2-A and/or the somewhat young theory of the basic features of the constitution to overrule parliament. Even otherwise the SC’s romance with Article 2-A, that has been demonstrated time and again since 2008, needs to be dispassionately discussed. Any attempt to overturn the SC verdict that holds the field now and declare Article 2-A to be in total command of the constitution will destroy the constitution and may prove fatal to the state’s integrity.

Even if the overriding status of Article 2-A is conceded, for the sake of argument, it only refers to the judiciary’s independence of the executive and not its independence of the law and there is certainly no underlying concept of the judiciary’s omnipotence or infallibility. Further, the judiciary is mentioned in point eight of the nine-point Objectives Resolution as approved by Ziaul Haq and it may not be possible to ignore the point at the top of the list, that is, “the state shall exercise its powers and authority through the chosen representatives of the people”.

Unfortunately, this issue has come up at a time when the rulers’ sins, and more than that their poor reputation, have made democracy and parliament more vulnerable than ever.

Whatever discourse there is, it is rapidly losing the element of reason and an amazing race seems to have started for adopting Al Qaeda arguments against the constitution of Pakistan, including the judiciary envisaged in it. That is perhaps the final form an anti-reason people’s death wish can take.