Parliamentary sovereignty vs judicial independence

By Sahibzada Hussain Mohi-ud-Din Qadri

(This article was published in Daily The Frontier Post on Wednesday, July 29, 2009)

The events of past week surrounding the issue of petroleum products have ignited debate on the role of the apex court vis-à-vis the institutions of parliament and by extension that of the executive. The government of Pakistan replaced petroleum development levy (PDL) with carbon tax to be charged from the start of this financial year from July 1, 2009 onwards. Carbon tax was a part of the Finance Bill 2009 passed by the National Assembly in its lengthy budget session. Hearing a petition against the imposition of the carbon tax, the Supreme Court suspended its imposition and ordered OGRA to furnish complete data on the oil pricing mechanism. This resulted in the reversal of pre-July prices of petroleum products.

Fearing that the government might lose Rs. 122 billion, which were estimated to be received from imposition of the carbon tax for bridging fiscal deficit in the budget 2009-10, President Zardari, in a late night move, issued an ordinance imposing PDL raising the prices of petroleum products as on July 7 position. Attorney General, Latif Khan Khosa, admitted in the Supreme Court that the imposition of the carbon tax was a ‘mistake’, which was rectified through issuance of an ordinance.

Instead of defending itself in the Court, the government thought it expedient to resort to the issuance of ordinance to do the needful. Those who held that the Supreme Court had intervened in the domain of legislature as it was latter that passed carbon tax in the Finance Bill 2009, were dealt a severe blow. The government disregarded the ‘mandate and will’ of elected parliament itself by issuing an ordinance—a familiar course of action during the dictatorial regimes--- instead of taking the matter to the logical conclusion.

Those who champion the mantra of sovereignty of parliament are under the erroneous impression that the passage of a bill or any other measure or imposition of tax renders it immune to judicial intervention. There are a number of ‘problems’ with this line of argument. First and foremost, does the measure enjoy support of the electorate? Wide scale protest demonstrations and rallies following the imposition of carbon tax reveal the extent of public resentment and disapproval of the governmental move. When people voted the present political administration into power on February 18, 2008, they hoped that the ushering in of a democratic order would make their life easier, not more difficult. If the government was so much concerned about the ‘sanctity of public mandate’ being ‘violated’, it could well have gone to the people in the form of referendum clarifying its present economic difficulties and asking them to extend it complete support and put up with difficult times.

Pakistan has a written Constitution which prescribes role, function and structure of each organ of the state. All institutions are creation of the Constitution and are independent in their respective domain. This is also the spirit of and a necessary condition for successful functioning of federalism. The job of the judiciary especially that of the higher judiciary is to interpret the Constitution, protect the fundamental rights and make sure that the laws enacted by the legislature are consistent with the Constitution. There is no doubt about the fact that legislation is the sole responsibility of the parliament but the apex court has the power under the Constitution to declare any legal measure null and void if it contravenes the Constitution. Judicial intervention on this count does not represent the infringement on the role and functions of parliament.

It is an unfortunate reality that executive organ of the state assumed disproportional powers and role at the cost of legislature and judiciary following the creation of Pakistan in 1947. In the absence of sustainable structures, the palace intrigues hatched by the civil and military establishments gave paramount importance to the executive. Historically, legislatures and judiciary have been playing subservient role to the executive. Parliaments were there to rubber-stamp the actions of both civil and military regimes and give ‘legal’ cover to otherwise out and out unconstitutional acts of civil and military dictators. The quality of parliamentary debates has been poor to put it mildly. The record of our elected parliaments in doing their basic job i.e. legislation has also not been satisfactory. The parliamentary committees, which are the backbone of any democratic order and symbol of parliamentary sovereignty due to their oversight role, could not register much progress in calling the executive and its institutions to account for their excesses. Parliament’s election of former president who was still donning the army uniform is a glaring case in point.

In the similar manner, the verdict of Federal Court (the then apex court) in Mauliv Tamizuddin Case under Chief Justice Munir also set the sorry tone. Decades down the line, our superior judiciary has been playing second fiddle to the establishment handing down such decisions which favoured the powerful elite at the cost of principles of justice, fair play and legal propriety. It was as a result of heroic role of lawyers, media, civil society and defiance of Chief Justice Iftikhar Muhammad Chaudry that the judiciary was able to redeem itself and find its right place in the national structure of power. The infamous ‘Doctrine of Necessity’, which defined the conduct of our judiciary in the last sixty years has been buried for good.

Through a painful process of evolution, we are coming to a stage where national institutions have begun to assert themselves. Though there is still a lot to be done and all is not well in the state of Pakistan but signs are emerging that domineering role of the executive branch is being questioned thanks to media-fostered public awareness. There is an urgent need to cut its over-sized and disproportionate role in accordance with the demands of Constitution 1973. This warrants the system of checks and balance to be put in place so that no single institution gets to dominate the power structure at the cost of others. Therefore instead of getting bogged down in such meaningless rhetoric as clash amongst institutions, we need to give every state organ what is its due as defined in our Constitution. After judiciary has won its independence, it is now for the legislature to follow the suit.

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