OVER A COFFEE : Judiciary vs the prime minister — Dr Haider Shah
Do we automatically conclude that the legislature is powerless in terms of separation of powers? No, it can use its constitutional amendment power to assert its authority when it wants to do so
Once, Zulfiqar Ali Bhutto was the prime minister of the country, and now until the last moment, we are kept unaware who will be the latest handpicked candidate for the highest post. Perhaps, in all fairness, it was not just Humpty Dumpty that had a great fall.
Such is the scale of dearth of talent in the ruling party that after outsourcing important ministries to non-political paratroopers, it is using General Pervez Musharraf’s spokesperson as its chief apologist in the popular media. No conscience is pricked to see the ‘sovereignty of parliament’ phrase used as a weapon of offence by someone who until a year ago defended all the acts of an army chief, including the imposition of emergency.
Sovereignty of parliament is a legal fiction attributed to the unique British political system. Britain does not have a written constitution as the political system has evolved with the help of some acts of parliament and by the force of convention. Since there is no written constitution, there is no limit on the law making powers of parliament. In that sense, parliament is supreme because it can pass any law it may deem fit. However, many experts of jurisprudence now contest even that situation. The EU directives and European Court of Human Rights have put a restraint upon the supremacy of the British parliament, as all laws need to be in conformity with the European Convention on Human Rights. In countries like the US, India, and Pakistan, which have a written constitution, it is the constitution that puts a restraint upon the legislative functions of parliament. For instance, parliament is not allowed to legislate on matters not appearing in the federal list; it cannot pass a law that is repugnant to fundamental rights guaranteed under the constitution and it cannot pass a law that changes the basic structure of the constitution. Just like the founding fathers of the US constitution, all framers of constitutions are cognisant of the fact that in a federation, parliament and provincial legislatures can have disputes, therefore there should be an independent body that enjoys independent power to decide such disputes. The restraining and overseeing role of the Supreme Court is best captured by the famous quote of the 11th American Chief Justice Charles Evans Hughes that “we are under a Constitution, but the Constitution is what the judges say it is.”
Do we automatically conclude that the legislature is powerless in terms of separation of powers? No, it can use its constitutional amendment power to assert its authority when it wants to do so. The preamble of our constitution that has recently been overhauled by a committee enjoying the support of all parties begins with the following line. “Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust…” The constitution therefore is founded upon the public trust principle where wielders of power exercise the power not under discretion but under the trust reposed by the people of Pakistan. The same preamble mentions ensuring the independence of the judiciary as one of the aims of the fathers of the constitution.
Our constitution has determined who can be a parliamentarian under Article 62 and who cannot remain a parliamentarian under Article 63. A list of essential qualities, seven in total, has been provided under Article 62 whose absence would render a person unsuitable to become a parliamentarian. In Article 63, the list comprises 16 disqualifying instances. So in total we have 23 factors that can be grouped as ‘questions of fact’ and ‘questions of opinion’. Some factors, e.g. good character, observing Islamic injunctions or working against the ideology of Pakistan are matters of opinion while age, citizenship, bank loan default, and court conviction are questions of fact. Article 63(2) says that any question about disqualification will go to the speaker who after ascertaining that the question has risen will refer the case to the election commission. In ‘questions of fact’, the evidence is already there so the speaker does not need any more investigations but in ‘questions of opinion’, the speaker would demand some hard evidence before the case could be forwarded to the election commission. Powers of discretion are held under trust and must always be judiciously and reasonably exercised. Even Julius Caesar could not invoke discretion of not attending the senate session in the Ides of March. In the case of Mr Yousaf Raza Gillani, faithfulness to trust appeared lacking when the speaker used her discretion.
Mr Gilani in a television interview with Al Jazeera had publicly declared that if he was convicted, he would not remain prime minster for a minute and would resign. After being convicted, Mr Gilani would have established a good convention if he had remained true to his earlier pronouncements and had resigned the same day. A political system is lubricated by conventions and traditions that may not necessarily be found in a written constitution. Mr Zardari had already dented his reputation by defying his pledges made in public. Mr Gilani has done the same, which has not helped improve the image of the party leaders. Instead of establishing a good constitutional convention, now a very ominous precedent has been established.
The prime minister is the executive head and a strong charismatic prime minister is not only good for his own party but also helps in strengthening civilian supremacy. The manner in which a civilian President handpicks prime ministers is a rerun of the era of military dictators. The slide in the stature of the prime minister under the present government is too steep to leave anyone comfortable.