By YL Hamdani esq.
The famous American constitutional case Marbury V. Madison was arguably the first time the judiciary in the history of the world declared anything “unconstitutional”. The door was thrown open that day which subverted the time honored principle of parliamentary sovereignty (established through English parliament’s positive assertion of sovereignty in 1688). Today we in Pakistan are face to face to most unsavory aspects of the judicial tyranny that may emerge through an abuse of this principle.
The question of a federal or a supreme court interpretting an issue of fundamental law in the subcontinent first came up when Nehru recommended that the provision in the Cabinet Mission Plan pertaining to provinces’ right to opt out would be determined by the Federal Court instead of by what framers of the plan had in mind. Significantly – for Pakistan- Muslim League refused to agree.
Pakistan’s second constituent assembly chose to induct this principle in Pakistan’s constitution by giving judiciary the right to interpret the constitution in 1956. This was a fundamental departure from the English parliamentary system presumably to enforce the fundamental rights chapter of the constitution. The Supreme Court has since 1956 jealously guarded its right. To an extent this power is reasonable. It helps guard against several tyrannies, till ofcourse the Supreme Court itself becomes oppressive.
In Pakistan’s case two other matters further complicate things. The first matter is that of the basic structure theory. Abdul Hafeez Peerzada, the principal author of the constitution of 1973, has been insisting in the recent past that the basic structure of the Pakistani constitution ie parliamentary democracy, federalism, independence of judiciary, fundamental rights and Islamic provisions is inviolable and requires the election of the constituent assembly. He also claims that a parliament under a constitution such as Pakistan is therefore not supreme but has to work within the paramters of the basic structure. To further bolster his argument, he claims that the parliament cannot legalize murder of a child by his mother. How ironic ofcourse to hear Mr. Peerzada argue the same line Sir Zafrulla had taken in 1974 against the second amendment. Then Mr. Peerzada, Bhutto’s law minister and framer of the Islamic and democratic constitution of 1973, had argued that Pakistan’s national assembly was perfectly sovereign to undertake the task of deciding who is Muslim and who is not.
It may also be mentioned that the basic structure theory is utilized by only one country in the world and that is India. In Pakistan the judiciary uses it to negotiate with its position within the federation. In this our judiciary aided by another clever device ie article 2 A of the Pakistani constitution. In 1984 General Zia through a presidential order (which was later ratified as the 8th Amendment) inserted the Objectives Resolution in the constitution, making it the substantive part thereof and therefore binding.
The Objectives Resolution has been around since 1949. It puts a contradictory set of objectives to be achieved by the state. It seeks to create democracy but vests ultimately sovereignty in Allah. It promises equality of citizenship but then seeks to also create some special privileges for Muslims to live according to Quran and Sunnah. It speaks of the right of the minorities to practise their religion “freely” (though this word was dropped from the copy annexed to 2 A).
Regardless of this early concession to the Islamist sections of society, Pakistan’s interplay with religion can roughly be divided into two distinct phases 1947-1973 and 1973 to present. The state in Pakistan from 1947 was a relatively secular institution, sometimes completely secular and at other times secular with a flavor of Islam here and there. The constitution of 1973 changed all of this. It not only introduced a state religion and limited the Prime Minister’s office to Muslims, but created a positive obligation on the parliament to Islamize the country. What changed in 1985 was that the obligation was converted from mere parliamentary obligation to a tool in the hands of judiciary. The ill-advised attempt by Nawaz Sharif in 1999 to become the Ameer ul Momineen was partly the attempt to wrest it from judiciary’s hands.
Now consider in this light if you will the Communist Party’s challenge to Presidential immunity under Article 248 of the constitution. Immunity arises from the principle of English Law. The petition itself raises the matter of “corruption” being a civil matter and therefore not covered by the immunity granted under 248. Thanks to 2 A, the fear is that the court might actually bring the issue of corruption into civil law by arguing that Islam does not recognize the distinction between civil and criminal law. After all analogously, a murder may well be treated as having tortuous liability instead of a criminal one under Qisas and Diyat. The other fear ofcourse is that it will just overrule 248 by invoking the Islamic provisions of the constitution. Thus perhaops for the first time in history, religion will supercede a written constitution.
Either way, in face of an aggressive judiciary, brace yourself for our judges’ final assault on Pakistan’s democracy.
(An edited version was first published in the Friday Times)