People vs. The Dictator. Round I – results are in

Link to my post on the decision to restore the Chief Justice of Pakistan that was announced earlier today – http://ptisv.wordpress.com/2007/07/20/congratulations-to-pakistanis-from-tehreek-e-insaf/

 

On Article 62 and 63 of the Pakistan Constitution

My post from PTI’s Silicon Valley Chapter’s blog – http://ptisv.wordpress.com/2007/07/03/much-ado-about-the-article-62-63/

 

Does Judiciary have the power to declare a constitutional amendment ‘unconstitutional’?

I had the opportunity to spend a few hours with a group of well read and learned Pakistani expatriates in the bay area. What ensued was a very lively discussion on Pakistan politics, law, constitution, socio-economic situation, history and everything in between.

One of the many questions that came up for discussion today was the power or lack thereof of judiciary in Pakistan to declare a constitutional amendment “unconstitutional”. The issue remained unresolved, though the general consensus in the room was that the judiciary does not have such power. I am a bit confused on this point and would appreciate comments. Firstly, Article 239(6) of the 1973 constitution clearly states the following – “No amendment of the Constitution shall be called in question in any Court on any ground whatsoever.” This is the most unequivocal and clear statement, after this there should be absolutely no way a court can even hear a petition challenging a constitutional amendment. However, there was one such petition filed against the 17^th amendment by the Pakistan Lawyers Forum in jan, 2004. It was filed on the ground that the 17^th amendment had altered the federal parliamentary system and eroded the ideological basis of the country , the two basic features of the constitution, which even an elected parliament is not empowered to enact. Although their petition was rejected by the Supreme Court, it was heard by the court and thus raises a couple of interesting questions –

1. Where does the constitution of Pakistan state that the federal parliamentary system and ideological basis of the country are its two features that even an elected parliament can not alter? I couldn’t find the relevant text.
2. If there are such features of the constitution that are frozen in so far as the elected parliament cannot alter them, this seems to be in direct contradiction to Article 239(6) that clearly does not allow for any such provisions?

The bigger question is why is it so easy for an army chief whether Musharraf, Zia or Yaqub to amend the constitution to their liking whenever they want. All three first used the courts to justify their actions against democratically elected regimes and then made a mockery of the constitution by introducing amendments to it through their installed parliments. As we were talking about the importance of the rule of law and independence of judiciary in Pakistan, one gentleman brought up an intriguing point – All military reigns in Pakistan have not only been granted legitimacy by the judiciary but have also proceeded to amend constitution through totally legal and constitutional means to consolidate and legitimize their control over all branches of the government. It is also interesting to note that all of them have followed this tried and tested pattern of first using the courts to gain legitimacy and then quickly amending the constitution to preclude courts from interfering any further (remember courts only uphold the constitution including all its amendments).

This begs the question – what can be done to create conditions for a democracy to survive and thrive in Pakistan as rule of law alone does not seem to be sufficient.