You have to hand it to the Chief Justice – he may have walked right up to the edge of the cliff, but he stopped before pushing the country into the abyss. Announcing a verdict on his suo moto hearing on the constitutionality of the 18th Amendment to the constitution (a bizarre bit of self-referential argument if there ever was one), the Supreme Court expressed its concerns with Article 175-A, but stopped short of upending the nation. All things considered, the court appears to have come to the correct conclusion – the authority to amend the constitution lies with the people through their elected representatives in parliament.
The apex court in its decision ordered that Article 175-A, detailing the amendments to the procedure of appointing superior court judges, be sent back to the parliament for review.
“Parliament is asked to review Article 175-A, for it has harmed judiciary’s freedom,” Chief Justice Iftikhar Chaudhry stated, adding that consultation with the chief justice was necessary for the appointment of judges.
It is significant to note that the apex court decided to send Article 175-A back to the parliament for reconsideration instead of striking it down.
Clearly the court is not happy with Article 175-A. And I won’t take the time to make any particular argument for or against this specific article. But the court smartly avoided a constitutional crisis by not superseding the written constitution.
The Prime Minister handled the announcement with a great deal of class, saying that he appreciated the judiciary’s show of respect for the parliament and that, as parliament also respects the judiciary, he would work with the National Assembly to move forward with the court’s request and review the article in question. This is how a properly functioning democracy works.
I do want to say a bit about the guiding principles that became such a hot topic over the past few months. While it is without question that there are certain guiding principles behind the constitution, these principles do not exist above the written law. Actually, the exist within it. Just as the spirit of a song exists within the melody and the lyrics, so also the guiding principles of freedom, independent judiciary, division of powers between branches etc etc etc exist within the written words and the judicial interpretation of the nation’s defining law – the constitution.
This, of course, raises the question as to whether the constitution could be amended to say things that are against these guiding principles of a liberal democracy. I think the answer is obviously yes – we have seen just such abuses perpetrated by past dictators, and we are still working to undo those abuses. Actually, this is part of the reason the 18th Amendment was passed unanimously.
But just as the abuses of a tyrant cannot break the spirit of the people, so they also cannot break the spirit of our constitution. If there any errors or abuses find their way in, we will remove them. But it is vital that we do so properly. We cannot set our hopes on the benevolence of any dictator – military, civilian, or judicial. By trusting each other and working honestly to resolve our concerns and our disagreements, we are the masters of our own fate. We are a democracy.