Why Are Justices Choosing To Challenge the Constitution Only Now?

The Daily Times expresses well the fundamental error of the Chief Justice and some lawyers that are suggesting a challenge to the 18th Amendment. Pakistan is a democracy, and as such parliament is the most direct representation of the people. If the Chief Justice or any other citizen had some complaint about the 18th amendment, the proper time to express this concern was while the amendment was being debated, and the proper avenue for expressing concern was through the representatives of the people in the parliament. But now that the amendment has passed the parliament and it has the President’s signature, it is part of the constitution. 

Now, this does not mean that no further changes can be made. Actually, we recently agreed with Asma Jahangir that We’re Not Done Yet. But any additional changes, must also be made through the proper process and through the proper channel that is the parliament. Despite this obvious fact, there continue to be threats from some elements in the judiciary suggesting that they will challenge the historic amendment.

One must ask, also, why it is that this historic acheivement that has repealed the aberrations forced under military dictators that the Chief Justice has chosen to challenge? For years there were anti-democratic measures in the constitution that were adopted by tyrants and dictators and the Chief Justice said nothing. For years there were aberrations that were unnatural to the constitution and rejected by the people, and the Chief Justice and the lawyers made no challenge. 

Why now? Why, once we have finally broken through the barriers of party politics and come together as a united Pakistan to strengthen the democracy, when the changes are made not by some dictator, but by the will of the people expressed in their elected representatives in parliament – why now does the Supreme Court begin to squeal?

The Daily Times is absolutely correct. There is a separation of powers in this country, and the Supreme Court is defined by the Constitution – not the other way around. If the Chief Justice or some lawyers following him make a challenge to the 18th Amendment, they will be in violation of the constitution and will actually undermine any legitimate concerns they have that should be properly addressed to parliament.

A section of the legal community has been expressing their displeasure ever since the Parliamentary Constitutional Reforms Committee agreed on a new procedure for the appointment superior courts’ judges. On the day the Senate passed the 18th Amendment, the Supreme Court Bar Association president announced that they would challenge the new procedure in the Supreme Court. A day later, the Chief Justice of Pakistan announced during the National Judicial Conference that the judiciary “may strike down any law inconsistent with the injunctions of Islam as laid down in the Holy Quran and the Sunnah and the fundamental rights as enshrined in the Constitution”. The declaration read out at the conclusion of the conference stated that all organs of the state should work within their domain.

The message is clear: the judiciary could act as a watchdog over parliament and curtail its scope. However, the reading of the constitution sets out very clear parameters of authority for each institution. There is a separation of powers in our constitutional construct, which must be respected by all institutions, the judiciary, executive and parliament. But, for all intents and purposes, parliament is supreme because it has been vested with the power to legislate and amend the constitution.

Both houses of parliament have unanimously passed the 18th Amendment, reflecting the overwhelming favour shown by the people’s representatives of all shades of opinion for this amendment encompassing 102 articles of the constitution. In pursuance of its divisive thinking, the Rawalpindi District Bar Association has challenged the establishment of the judicial commission in the Supreme Court under the 18th amendment, but the constitution is very explicit on this issue. Article 239(5) states: “No amendment of the constitution shall be called in question in any court on any ground whatsoever.” The legal community had launched and sustained the struggle for the noble cause of the supremacy of the constitution. After signing by President Asif Ali Zardari, the 18th Amendment has now become part of the constitution. Even some of the leading lights of the lawyers’ movement have lauded the new procedure for judges’ appointment laid down by parliament. Trying to stir up debate — which is nothing more than petty bickering — on this issue, will only put a question mark on the intentions and credentials of those party to it.

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