Saturday, July 28, 2012

Power of Judicial Review

First published in The Friday Times.

By Yasser Latif Hamdani

During his confirmation hearings, Judge John Roberts, the Chief Justice of the United States of America, famously admitted that he was aware of the fact that millions of people had elected the US Congress and not even one person had voted for the Supreme Court. More recently, in the now famous Obamacare judgment pronounced on June 28, Roberts declared that it was not the job of the Supreme Court to "protect people from their political choices". Such is the deference for the legislative branch of the government in the country that literally invented the doctrine of judicial review.

Justice Iftikhar Chaudhry, the Chief Justice of Pakistan, recently told his audience at the Karachi registry of the Supreme Court that in Pakistan it is not the parliament but the constitution that is sovereign. Any student of political science or constitutional law will be able to see clearly the fallacy in such a statement. Parliamentary sovereignty and the constitution are distinct concepts and cannot be substituted. Therefore if the parliament is not sovereign as the Chief Justice says, it calls into question the status of the constitution as a higher law. The theory of constitution as higher law rests entirely on the sanction it receives from a pouvoir constituent. Admittedly, in contrast to the English constitution, where there are written constitutions with rigid procedure for amendment, the parliament acts in two capacities - legislative and constituent. The written constitution provides a framework and legislation has to be undertaken in that framework. However, the fact that a parliament can at will amend the constitution makes it sovereign and supreme.

A valid argument against parliamentary sovereignty would be that the constitution is not a higher law and not the fundamental law of the land. The Chief Justice has taken a self contradictory position ie arbitrarily vesting sovereignty and supremacy in a document but putting the parliament that has the power to amend the constitution beneath it.

Technically in a pure parliamentary democracy, the only limit on a parliament's power is when it tries to clip its own wings as shown in Jackson and Others v Attorney General [2006] 1 AC 262 [Jackson].

The sovereignty of the parliament may in theory be limited by the Objectives Resolution, but the determination of what constitutes the will of Allah is the exclusive preserve of the parliament

Even in the United States of America, where judicial review first came to the forefront in Marbury v Madison, 5 US 137 (1803), the Supreme Court steered clear of impinging on the role of the Congress, laying the groundwork for broader interpretation of, for example, the commerce clause. The US Supreme Court has - in recent years - struck down laws that affected the civil rights of individuals, but beyond that it has remained out of the Congress' hair. It might also be remembered that unlike our Supreme Court, the Justices of the US Supreme Court are confirmed after proper Senate hearings of a bipartisan committee. In a way hence the US Justices hold office - indirectly - through the will of the people.

This brings us to the question of the basic structure doctrine as it is laid down by the Indian courts. The Indian Supreme Court had sought to protect the fundamental rights enshrined in the constitution by laying down the doctrine in His Holiness Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala and Anr AIR 1973 SC 1461. In essence the Indian Supreme Court ruled that fundamental rights of individuals had been vested for all times to come and these could not be amended out of existence.

So what does that mean for a country like Pakistan which is at best a volatile mix of Westminster Parliamentary System and a belief in Allah's sovereignty over the entire universe? After all the inclusion of Article 2-A in the constitution arguably creates a basic structure for the constitution and that very dangerous argument. The Supreme Court has a power of judicial review to the extent of weighing whether any piece of legislation is ultra vires the constitution. The Chief Justice insists that the power of judicial review extends to Islam as well. This is incorrect in terms of the theory. The most logical interpretation of the Islamic provisions and Article 2-A of the constitution is to attach the presumption that any legislation undertaken by the parliament cannot be repugnant to Islam. No doubt this is a rebuttable presumption for which the proper forum is the Federal Shariat Court and not the Supreme Court. In the view of this writer, even the existence of a Federal Shariat Court, which was introduced by General Zia, is a fetter on parliamentary sovereignty not just in terms of Westminster theory but the Iqbalian doctrine of Ijtehad through parliament. Simply put, the sovereignty of the parliament may in theory be limited by the Objectives Resolution, but the determination of what constitutes the will of Allah is the exclusive preserve of the parliament and not an unelected institution.

Nevertheless, the Supreme Court's ability to judicially review legislation and interpret the constitution does not extend to overriding the parliament's power to amend the constitution and this is something the Supreme Court has recognized in Pakistan Lawyers Forum v Federation of Pakistan PLD 2005 SC 719 when safeguarding Musharraf's 17th Amendment. Interestingly, the present Chief Justice was one of judges on that bench. Therefore, so far the Supreme Court has not taken the Indian route.

If the constitution is the higher law in Pakistan, the parliament - which is both a legislative and a constituent body (when acts with 2/3rds sanction) - is sovereign because it has the power to amend that constitution and established case law in the field seconds it.

The Chief Justice also lashed out at those speaking of parliamentary sovereignty describing the whole idea as obsequious mimicry of colonial traditions. This again flies in the face of reality. The entire freedom struggle - especially that in which the father of this nation participated - was centered on the idea of self-rule through a responsible parliament. Colonial traditions on the other hand centered on bureaucratic rule of unelected institutions. The idea that an unelected institution, like the Supreme Court, can overrule the parliament's sovereignty is therefore more of a colonial tradition. The idea of a cabinet responsible to an elected parliament is the essence of democracy and cannot by any stretch of imagination be described as a colonial tradition.

Given these events, perhaps a Federal Constitutional Court is an idea whose time has come. It must be remembered that the first person from the subcontinent to suggest a Federal Constitutional Court was none other than Muhammad Ali Jinnah who - on October 27, 1932 - spoke of three different courts at the highest level. Jinnah, who was widely recognized as one of the most successful lawyers of India, suggested that there should be a criminal court of appeal, a court of appeal for federal laws and their implementation, and finally a federal constitutional court which would hear constitutional matters including direct petitions from aggrieved persons whose fundamental rights had been violated. By dividing up the apex court into three, the idea was to ensure efficacy of legal remedies as well as a division of power to stop the judicial branch from exerting undue influence on other branches.

Benazir Bhutto and Nawaz Sharif inked the idea of a Federal Constitutional Court when they signed the Charter of Democracy. Both leaders had come to an understanding - after facing hostile Supreme Courts - that an unelected institution would always threaten elected institutions. But things have changed after the Lawyers' Movement. Nawaz Sharif is now too invested in the status quo to support such a proposal.

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