The countries that have written constitutions function on the principle of tri-chotomy of powers that clearly delineate and spell out the role of the organs of state, which are considered to be its pillars. For the orderly and smooth functioning of the state, it is imperative that these institutions operate within the limits set by the constitution and play their due and supportive role in carrying forward the objectives of the state, geared to promoting the well-being of the people. Any trespassing into each other’s domain is considered disruptive and inimical to the state’s interests. The countries where such interventions happen remain consigned to perennial instability and chaos.
Pakistan is one of those unfortunate countries where the state organs have exhibited an unmitigated propensity to meddle in the affairs of other state institutions, arrogating to themselves the role of self-styled saviours. The judiciary, which is the most sanctimonious institution of the state and has the responsibility to protect the constitution by making sure that the state institutions function in conformity with the spirit of the constitution, has itself been the major offender in regard to maintaining the sanctity of the constitution. Over time, the SC has delivered horrible verdicts in breach of the constitution itself, and in certain cases, it has tried to rewrite the constitution, notwithstanding the fact that it was the exclusive power of the parliament to make any change in the constitution. The verdict rendered on Article 63A of the Constitution is the latest example of constitutional indiscretion. These verdicts have contributed immensely to perennial political instability in the country. But the dilemma is that since the SC is the final forum of justice, its verdicts have to be accepted and implemented. Justice Jackson of the US Supreme Court said, “the apex court is not final because it is infallible, but it is infallible because it is final.” What it means is that it is a wrong notion to perceive that the apex court cannot make mistakes and is always right. However, since the verdict delivered by it is final, there is no choice other than accepting it. He was right on the money. Even the unconstitutional verdicts of the SC had to be implemented with all their negative impact on the political polity of the country.
How can any constitutional amendment made by the parliament in consonance with provisions of the constitution be termed as unconstitutional?
However, to ensure that all the state institutions operate within the ambit of their constitutional role, oversight of the parliament is absolutely pivotal. Parliament is the architect of the constitution. It is the only competent organ of the state that has the power to amend the constitution or bring changes into it to rectify the aberrations and meet the emerging challenges. That is why all the constitutions of the world, including ours, authorise the parliament to make any amendment in the constitution and also stress the fact that the amendment thus made will not be challengeable in any court of law. This clearly is meant to assert the ascendancy of the parliament over all state institutions.
Article 239 (5-6) is so categorical and clear in this regard that it forecloses the possibility of any debate on the power of the parliament to amend the constitution. In this regard, the petitions filed against the 26th constitutional amendment and the 27th are unconstitutional by all means. And so is the acceptance of those petitions against them by the judiciary. The judiciary, being custodian of the constitution, is not supposed to commit such indiscretions and foment controversies that have serious political implications.
The concept of basic structure and the doctrine of necessity are actually innovations of the judges to assert their ascendancy over all state institutions, including the parliament. In view of the foregoing realities, there is no room for judicial activism and going beyond the powers that have been assigned to the judiciary by the constitution framed by the parliament. To clear any haze in this regard, perhaps it would be pertinent to mention the views expressed by Justice Saqib Nisar and Asif Saeed Khosa while giving their verdict on petitions challenging the 18th and 21st constitutional amendments. Justice Saqib Nisar stated, “Matters of governance must be decided by the chosen representatives of the people, and should not be left at the ‘mercy of the collective wisdom of unelected judges’, who ‘are the least accountable branch in Pakistan’. The ‘basic structure’ doctrine, as adopted by the Supreme Court in India, is a vehicle for judicial aggrandisement of power at the expense of the elected representatives of the people.”
Justice Asif Saeed Khosa argued, “Even if the preamble and salient features of the Constitution expressed the will of a past generation then why should the Supreme Court hold future generations hostage to it? Surely, if at some future stage the people of this country have a change of heart or mind then the will of the people will have its way and the aspirations of yore or yesteryears may not be able to shackle it.”
Now, coming to the resignation of Supreme Court Judges Syed Mansoor Ali Shah and Justice Athar Minallah as a protest against the passage of the 27th amendment, I honestly feel that the reasons cited by them are frivolous to say the least. It is an unwarranted reaction by them. I will not mention all the detailed reasons mentioned by them, but would restrict myself only to their observation that they could not uphold their oaths to a constitution they believe no longer exists, and the amendment represented an assault on the constitution. One may like to ask them who framed the constitution under which they took the oaths as judges of the Supreme Court? The simple answer is that it was promulgated by the parliament. It was the same constitution which authorised the parliament to amend any of its Articles without any challenge from the judiciary. It is not for me to comment on their past and the skeletons in their cupboards regarding their political affiliations and indiscretions in breach of the code of conduct for judges issued by the Supreme Judicial Council. They will surely be taken care of by the political stakeholders. But I think they are terribly wrong in making these observations in their resignations.
There are also other detractors of the 27th amendment who hold the view that it subjects the judiciary to executive control and undermines the constitution, making justice more distant, fragile and vulnerable to power. That is also a preposterous notion. How can any constitutional amendment made by the parliament in consonance with provisions of the constitution be termed as unconstitutional? Further, the amendment has not been made by the executive to assert its control over the judiciary. It is the product of the collective wisdom of the parliament in which different political parties are represented. This argument by the critics of the 27th amendment probably also stems from the contention that the judiciary has the power to review any constitutional amendment. If people and judges believe in the sanctity of the Constitution, then they have no right to object to Parliament making any amendment. Any views to the contrary descend into the realm of hypocrisy.
The writer is a former diplomat and freelance columnist.