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______________________________________________________________________________
Preserving
the Constitution
BY
BABAR SATTAR (IDN)
*
While
being formally inducted into the National Assembly, each member swears to
"preserve, protect and defend the Constitution of the Islamic
Republic of Pakistan". Obedience to the constitution is an inviolable
obligation of every citizen of Pakistan under Article 5 of our fundamental
law. But all the constitutionally mandated representatives of parliament,
the executive and the judiciary are endowed with a higher obligation. They
are obligated not just to obey the constitution but also to preserve and
defend this hallowed contract between the citizens and the state -- a
responsibility that they swear to uphold while assuming their duties and
functions.
The
National Assembly-elect is meeting amid a distressing phase in our
national history during which the constitution was seriously bungled. Thus
when members take an oath to "preserve, protect and defend the
constitution" this time around, they will not merely be chanting in a
ritualistic ceremony, but reciting the foremost challenge that confronts
our parliament and our nation. As a repository of the nation’s
sovereignty and being the legislative branch of the government, it falls
upon the parliament to preserve our constitution in its legally valid
form. Let us first get out of the way what is not important about the
oath: the physical form and content of the constitution being published
for the members to place their hands on during the oath-taking ceremony.
The
idea that by swearing oath over a version of the constitution that
includes the post-November 3 amendments, such amendments will magically
become an integral part of the fundamental law is, to put it mildly,
preposterous. What if "Alice in Wonderland" was mistakenly
printed and appended within the bind of the constitution distributed in
the parliament? Would the members then be duty-bound to preserve and
protect the fable as part of our constitution? Placing the hand over a
book during the oath taking ceremony is symbolic. What matters is the
content of the oath. And the oath under Article 65 of the constitution
requires members to preserve, protect and defend the Constitution of
Pakistan. And there is only one Constitution of Pakistan, the content of
which is objectively verifiable as the constitution itself provides a
mechanism to do so.
In
striking a balance between continuity and change, the constitution must at
all times be reflective of and backed by overwhelming national consensus
on how the state must be run. Thus Article 239 of the constitution
requires a two-third parliamentary majority to establish that a
pre-existing consensus has been extinguished and a new consensus has
evolved. This is the only legal and valid mechanism to amend the
constitution. At the risk of sounding pedantic, it must be restated
clearly that there is no legitimate authority in the state, except that
which is derived from the constitution. It is the constitution that makes
parliament the sovereign representative of the citizens and vests in it
the power to even amend the constitution. The same constitution endows the
judicature with the right and responsibility to interpret the
constitution. This is Constitutional Law 101_
With
this backdrop let us turn to our present predicament. We have a retired
general as a president who slapped an unconstitutional emergency (plus) on
the country, subverted the constitution and dismissed constitutionally
appointed judges (in violation of the mechanism prescribed by the
constitution to fire judges under Article 209). The source of his
authority was the barrel of his gun. And to give the general his due, he
made a candid confession on TV that what he did was unconstitutional. He
then reappointed those judges who were willing to play along. These
judges, who swore upon the general’s edicts (the Proclamation of
Emergency and the Provisional Constitutional Order) that subverted the
constitution, then stated that he was justified in holding the
constitution in "abeyance" (which they emphasized was different
from "abrogation"!).
Having
derived their judicial authority from the Oath of Office (Judges) Office,
2007, passed by the general, they, in turn, purported to validate his
self-assumed executive and legislative powers and also provisionally
blessed him with the authority to rewrite the constitution at will in the
Tika Iqbal Khan case, if it "fails to provide a solution for the
attainment of the declared objectives of the Chief of Army
Staff/President…" So the general in exercise of his legislative
authority to amend the constitution, granted by a court that derived its
judicial authority from the general, amended the constitution through two
constitutional amendment orders to give all his unconstitutional actions
constitutional protection. Really!
And
now Sharifuddin Pirzada and AG Malik Qayyum insist that the constitution
has been validly amended. Why? Because the general has himself added a new
clause 270AAA to the constitution that says that nothing done by the
general between November 3 and December 14 (when the second Constitutional
Amendment Order was passed) shall be considered unconstitutional or
challenged in any court. They unashamedly proclaim that the retired
general has single-handedly yet successfully changed the constitution.
Even if he did so by means of coercion while admitting that his actions
were illegal, the judges he appointed said that his illegitimate actions
were valid and legal and so that is that. And here is the punchline: the
time of constitutional deviation is now over and if legitimately elected
parliamentarians wish to "preserve" the constitution in its pre-Novmber
3 form, the onus has now shifted onto them and they will need to conjure
up a two-thirds majority pursuant to Article 239. For that is the only
valid way to amend the constitution!
The
problems with the fiction being propagated by the general’s legal
panderers are many. First, it does not conform to the explicit text of the
constitution. In emphasizing that the incoming parliament needs a
two-thirds majority to undo the general’s (un)constitutional amendments,
they acknowledge that there is only one legitimate way to amend the
constitution i.e. by a two-thirds parliamentary majority. Second, the
judiciary has no authority to validate extra-constitutional actions. The
logic used by the Supreme Court in cases where it chose to become an
apologist for a dictator is oxymoronic, to say the least. For example, in
justifying the first coup of the general, the Supreme Court held in the
Zafar Ali Shah case that he "validly assumed power by means of an
extra-constitutional step…"
What
gives a handful of lawyers wearing black robes the authority to impress
upon a nation that their government could not be run in accordance with
their constitution and hence a usurper subverted the constitution and
usurped constitutional authority 'validly’? At a time when the
constitution stands suspended, what divine powers does a judge have, who
is himself appointed by such a usurper, to determine the validity of the
usurper’s actions?
But
most importantly, the constitutional and political history of Pakistan
informs us that if there is anyone that can validate and affirm a breach
of the constitution, it is the constitution itself. General Ziaul Haq
suspended the constitution in 1977 and the court 'validated’ his martial
law in the Nusrat Bhutto case. Even though he tried to introduce Article
270A into the constitution through his Revival of Constitution Order, 1985
passed on March 2, 1985, the clause only became part of the constitution
on November 11, 1985 after the parliament approved the 8th Constitutional
Amendment by two-thirds majority.
Likewise,
General Musharaf’s first martial law of October 12, 1999 was
'validated’ by the court in the Zafar Ali Shah case (while granting him
the power to amend the constitution). But Article 270AA that validated and
protected the PCO of 1999 and LFO of 2002 only became part of the
constitution after the 17th Constitutional Amendment was passed by the
parliament in accordance with Article 239. What then makes the PCO of 2007
and the pearls of wisdom shed by the Dogar Court in the Tika Iqbal case so
special that together they can 'validly’ amend the constitution in
contravention of its explicit provisions?
The
power to amend the constitution belongs to the people of Pakistan and they
exercise it through their chosen representatives. Never before has the
Constitution of 1973 been permanently amended except by parliament with a
two-thirds majority. Even an ordinary agreement can be annulled by a party
that is coerced into such agreement. And here we are being consumed by
debates on whether the fundamental law of our land can be altered on
gunpoint. The new National Assembly must live up to the trust reposed in
it by this nation and preserve the Constitution of Pakistan. There are no
legal hiccups here. All that is needed is a parliamentary gesture to
preserve the constitution in its pre-November 3 form. If it doesn’t
shirk this constitutional duty, the deposed judges will automatically
stand restored and the mischief of extra-constitutional legality will be
put to rest once and for all.
The
article first appeared in The News. The writer’s email is: sattar@post.harvard.edu
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