Constitutional supremacy? | Pakistan Today

Constitutional supremacy?

  • There is a difference between an act of parliament and a constitutional amendment

Amidst the ongoing institutional clashes, supremacy and sanctity are the two words that grace almost every occasion. Be it the sanctity of the vote or the sanctity of an institution, one is accusing the other of damaging the integrity of state institutions and taking refuge behind these two words.

Quite recently, the ruling party let out a whisper of constitutional amendments in order to tackle the judiciary’s continued lambast against them. One shouldn’t say lambast as the adjudicators are merely doing their job, though an occasional toe across the line may have been witnessed in the form of judicial activism. Rumors included restricting the upper age limit of the superior court judges so as to avoid certain individuals from taking control of the judicial ship.

Were they mere words or a litmus test to perceive the reaction, only the ruling party can tell for sure. These rumors coupled with a few speeches from the floor of the parliament did draw attention and visibly irked the Supreme Court. The talk of parliamentary supremacy was put to rest by the chief justice as he observed that the laws passed by the parliament were subject to judicial review in order to determine any infringement of the basic structure of the constitution.

This particular question of law is of considerable importance and is as such quite ambiguous. Every constitutional law expert holds a different view to this interpretation and there is no settled principle. Although recent legal jurisprudence, in particular the 21st amendment, challenges brought before the Supreme Court, seemingly trudges towards judicially reviewing amendments to the constitution.

In their quest to dispense justice, the doctrine of necessity should not be employed yet again. The contemptuous tirade of the ruling party is unacceptable and should be dealt with as the law envisages

There is, however, a difference between an act of parliament and a constitutional amendment. The former can be and should be brought into question before the courts if it violates the basic structure of the constitution and or is in direct contravention to the fundamental rights guaranteed by the constitution. The latter on the other hand is a crucial matter. Parliament, being the supreme law making body, reserves absolute discretion to enact laws as and when required. That being so, it also reserves the right to amend the constitution by passing it through a 2/3rd majority of the parliament. A court of law which derives its authority from the constitution itself has the full mandate to interpret laws as and when required. In spite of that, the supremacy of the parliament cannot be extinguished.

We need to bear in mind that it was, indeed, the same house of parliament which introduced the incumbent constitution. Even if we briefly visit the historic significance of parliamentary supremacy we find opinions of constitutional jurists such as AV Dicey. He was of the view that the sovereignty of the parliament was absolute and above all and that any law brought forward by the parliament cannot be overridden by any person or body.

As mentioned earlier, each expert would have a different view on the matter but if we were to obtain a crux of the historic view, it would be safe to state that a parliament is indeed supreme. The notion that the constitution is supreme and the parliament is subservient to it would be a situation where the apple falls quite far from the tree. In any case, no court of law on any piece of land on this earth reserves the right to enact laws or bring about any change to the constitution. By no stretch of exposition can this right be conferred upon the judiciary. Their job description is confined to the interpretation and in certain cases the implementation of the law.

The sanctity of the parliament would tear down into shambles if every act of parliament was brought into question before the courts and, subsequently, struck off. Again, a majority of the jurists with greater knowledge than me would strongly disagree with my opinion, nevertheless the beauty of democracy enshrines me with the right to pen down my opinion. With all due respect and care I would differ with the new founded views of our judiciary wherein they have empowered themselves to review constitutional amendments. Certain things are meant to be and supremacy of the legislature is one of them. A democratic republic elects its own leaders and empowers them to make laws for the country. The entire purpose of this power would be defeated if every parliamentary move was reviewed by the judiciary.

On the other hand, the actual part where our focus needs to be diverted is the education of the masses. Instead of undermining the supremacy of the parliament, we should concentrate on who we send to be seated on the benches of the parliament. Education and awareness, of the masses, is the actual need of the hour. If we were to elect leaders who possess high moral values and integrity, we wouldn’t have to question any amendments as the same would be in good faith and not part of a vindictive scheme as being orchestrated by the incumbents.

Focus on the individuals being elected to the parliament if some or all of them are not eligible to be seated in the halls of parliament, then so be it. Send all of them packing and there won’t be any disagreement. But passing of remarks concerning the supremacy of the parliament itself is uncalled for and amounts to serious discrediting of the parliament.

In their quest to dispense justice, the doctrine of necessity should not be employed yet again. The contemptuous tirade of the ruling party is unacceptable and should be dealt with as the law envisages, however sanctity of the parliament and the rule of law, in that context, should be preserved. Parliament is and will remain the supreme law making body and there is no questioning that.

Maybe if we were to understand that the parliament does not mean the Sharif family we would be able to comprehend its’s eminence. It is a sacred institution which in the times to come will host all sorts and should not be undervalued by other branches of the state.