Supremacy of parliament

In the interim judgement of the 18th Amendment case given by the Supreme Court (SC) on Thursday, the apex court referred Article 175-A to parliament for reconsideration. The said Article pertains to the appointment of judges to the SC, High Courts and the Federal Shariat Court. The SC has postponed further hearing of this case till the third week of January 2011. The judgement has been welcomed by all sections of the state and society. As per the SC ruling, “This is for the first time ever in our national, judicial and constitutional history that such a serious challenge has been thrown by a cross section of society, including some premier bar associations of the country, to a legislation which was no ordinary piece of legislation but a constitutional amendment.” It further states that both parliament and the judiciary “are vital and indispensable for all of us and they do not vie rather complement each other so that the people could live in peace and prosper in a society which is just and where the rule of law reigns supreme”. Prime Minister Yousaf Raza Gilani termed the decision “positive” and added that the judiciary had proved that it respected the executive. That parliament is supreme cannot be doubted and it was indeed unfortunate that certain segments wanted to pit the judiciary against the executive. Thus, by referring Article 175-A back to parliament, the judiciary dashed the hopes of all those who were looking for a ‘showdown’.

The 18th Amendment was passed unanimously by parliament this year. The proposed judicial commission became a bone of contention between the executive and the judiciary despite the fact that the Chief Justice (CJ) of Pakistan is to head the commission while the parliamentary committee has equal representation of both treasury and the opposition. For the first time in Pakistan’s history, the method of appointing judges would be with the approval of parliament in a transparent manner and there would be across the board consultation to avoid any controversy. This is a welcome change from our past practices when the executive and the judiciary used to appoint judges behind closed doors. Rather than appreciating the elected representatives’ decision to make this process transparent, the SC decided to hear petitions against the 18th Amendment despite the fact that Article 239(5) of our constitution states: “No amendment of the Constitution shall be called in question in any court on any ground whatsoever.” It is a well-established principle in jurisprudence to interfere with constitutional amendments only in extremis and by way of exception. Very rarely have constitutional amendments been struck down by courts around the world and that too when the basic structure of a constitution is sought to be changed. In Pakistan’s case, the basic structure of our constitution is still an unsettled matter.

Now that Article 175-A has been sent back to parliament for reconsideration, if our elected representatives decide not to change it at all, it is hoped that the judiciary would not strike it down in deference to the will of the people expressed through their elected representatives. The matter should have been left to parliament from day one but that did not transpire. Now that the ball is in parliament’s court, our revered lordships should let this be the end of it. The January 2011 hearing seems a bit laboured in this case. The decision to leave the matter hanging for another three months is like a Damocles sword hanging over the head of parliament and the executive. The sovereignty of parliament should not be challenged and in order to avoid a clash of institutions, we hope that in January 2011, the SC would honour whatever decision has been taken by parliament.

(my editorial in Daily Times)

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