Is the constitution supreme?

Whether the courts have gone beyond the ambit of their power in judicial activism is a moral-cum-political point

The debate is once again entering in a political domain. Who is who and what is what in terms of the main organs of the state? Is Parliament supreme or the judiciary is final authority on the interpretation of the constitution?

This debate is shaping up at a time when judicial activism is at historic peak at one end, and on the other, the same old doctrine of necessity is hanging in the middle and the Parliament is not performing well nor is the Executive. If history is any guide, on these junctures, military intervenes. At least this is history now. In order to find answers of the questions above, we shall borrow universally accepted constitutional theories and also refer to our constitutional history.

Theories suggest that ours is a written constitution, which owns the same constitutional history as India. It starts from the Government of India Act 1858 when the Queen of England took over India as its colony from East India Company. But there is another part of the history that may also be taken into account. Pakistan at present is comprised of the states which were predominantly Muslim. Till Pakistan was made, it had inferior middle class, entrepreneurs and industrialists. This fact was also manifested in the Muslim League being a much weaker party when compared with Hindu dominated Congress. The later was strong, inter alia, because its constituency was strong: strong middle-class base in Hindus. India framed its constitution within the stipulated time as was mandated under the GI Act 1947, whereas it took us 26 years to finally frame ours. We lost half of the country in this battle.

Framers of our Constitution in 1973 had kept the same thing in mind. India’s Constitution and ours have origins in the US Constitution. However, the system of government is identical to that of Britain. In Kasavananda case, the most seminal case of India, Nani Palikhiwala while arguing for the basic structure of the Indian Constitution takes the ‘doctrine of the implied theory of limitation’ from the US jurisprudence.

This implied theory of limitation makes Article 239(5) of our Constitution least important (if not void ab initio expressly), vis-à-vis the implied limitation within, which says that an amendment power drives from the Constitution and therefore, cannot be equated to the power of farming the constitution as the framing the constitution is one time power that was vested with the first assembly after Ayub’s Constitution was abrogated and the Presidential Order while declaring election to be held for the specific reason to frame the Constitution. Power of framing the constitution was also the mandate of first Assembly after 1947 independence.

Mian Nawaz Sharif being the defacto leader of the main party in the Parliament at present is arguing the fact that Article 239(5) must be taken in its letter and spirit.  It implies that our constitution does not have a basic structure, whereas it is precedent of the Court in its seminal case of 21st Amendment, in which the majority says that Constitution has a basic structure. The parliament did not defy such ruling of the court either.

On the other hand, if we believe that our constitution has a basic structure and the power of parliament is to amend the Constitution, to improve it but not to rewrite, who will be the final arbiter — for that matter final interpreter — to say so? Its answer is straightforward: the supreme court. The point is that if court abuses such power of interpretation then what?

There is no precise answer to that. However, one thing is certain. That supreme court’s judgement is binding, be that wrong or right. It is not in Pakistan alone; it is universal. What we need to understand is the power of the court. The court has a monopoly on the power of interpretation. The parliament, arguably, has a monopoly on the power of legislation. We have seen in many cases where the Parliament also abused its powers. It is not here alone; it is also universal. From the US to the UK, one can quote more than a dozen examples in this respect. Even in India, the Supreme Court was silent when Nehru was in power. Soon after Nehru, the court took ten years to finally articulate in Kashwanada case that the Constitution was supreme, and not the parliament and also that power of amendment cannot be stretched to damage the basic structure of the constitution.

It does not matter if the Parliament is supreme or if the courts are supreme.What matters is if legislation is respected

The theory of precedence means the piece of legislation and the judgement of the court while interpreting such piece of legislation in the particular situation of dispute in question. Hence the law and the case law are one thing. The precedence is authority for the same and the lower courts to follow. This rule also applies to the constitution. It is a universal practice. By this, the court also makes laws, which in the conventional phrase are called ‘case laws’.

What is the doctrine of necessity in itself? It is also in a way a power of the court to take stock of the situation and accept it as aground reality. It is an accepted fact in jurisprudence that when the power is emerging to derail the system, it is accommodated through the doctrine of necessity. If it were not the fact, why did the parliament incorporate in the constitution and other laws through the power of amendment vested with it, the court decrees and judgments?

Therefore, it is a fact that the 8th and 17th Amendments in our Constitution were nothing but doctrine of necessity.

What we need to understand is that it is not that the parliament that is supreme or the constitution is supreme. It is instead the question: Is the power of legislation supreme or the power of interpretation? The legislation is in its essence a mandate-driven power; the voters give it to those whom they elect to represent them in the parliament. Judges are not elected in the superior courts the world over. They are trained, and they are highly advanced minds of society as theory suggests. But in our society, this rule may not be that simple to define.

As long as the constitutional theory is a concern, the practical side of this fact is that the parliament can make the laws and can make the amendments to the constitution. It is, however, the court to finally say which law is ultra vires and repugnant to the constitution. Hence the power of interpretation in its essence is much bigger power to the extent that the courts also make laws and keep the parliament limited in power of legislation.

Mian Sahib could only attain his goals — of making Parliament supreme — through revolution. An unwritten constitution is a remedy to make Parliament prevail over the Court.

The question that court has gone beyond the ambit of its power in judicial activism is more a moral-cum-political point. As long as the Constitution is there or it is neither derailed, nor a new one is written, the power of interpretation is bigger power than the power to legislate.

The writer is a civil society activist. At present, he is practicing as a lawyer at Sindh High Court in Karachi

Published in Daily Times, March 8th 2018.