The session on April 3, 2022, of the National Assembly of Pakistan has raised many questions. It has become more important now than ever before to reiterate the importance of the constitution, irrespective of political affiliations.
When populism is on the rise and fascist tendencies become apparent then it becomes important to ensure that people understand what is at stake.
Since its inception in 1947, Pakistan has faced several constitutional crises, and a number of different rules of the game have been created. Some of them were created to tilt the power towards bureaucrats while others to facilitate dictators. It was only after more than half of our country was lost that our elected and non-elected elite realised the importance of the constitution. A consensus was reached in 1973 which has held till now.
There have been serious attempts to undermine the 1973 constitution — by the 8th amendment brought in by General Ziaul Haq and 17th amendment by General Pervez Musharraf. Yet it has been able to withstand the test of time. The major political parties learnt their lessons the hard way and brought in the 18th amendment, which has restored it and created a parliamentary state with administrative powers devolved to the provinces.
It is through this constitution that we are able to seek our rights. The task of reconciling the western conception of liberal freedoms, which were part of our postcolonial heritage, with the Muslim beliefs was difficult. The constitution goes on to ensure the inviolability of human dignity and free speech among other fundamental rights, and it is our right to question whether it has lived up to its promise or not. But undermining it would lead to a crisis which consolidating democracies are rarely able to withstand.
The deputy speaker through his illegitimate ruling under Article 5, which deals primarily with the obedience of the state and using his powers under National Assembly rules, tried to undermine the gist of our constitutional framework. The court would decide the finality of this decision; nevertheless it is not without doubt that it has created a serious constitutional crisis.
The PM would go on to act like a despot if the ruling of the deputy speaker is accepted. Further, an illiberal democracy would emerge with no method in place to remove the leader of the house — even if they lose a majority in the parliament.
The PM would go on to act like a despot if the ruling of the deputy speaker is accepted. Further, an illiberal democracy would emerge with no method in place to remove the leader of the house — even if they lose a majority in the parliament.
The Supreme Court must ensure the process under Article 95 is completed – to guarantee a constitutional way to vote out a prime minister — otherwise they would be removed only through the imposition of Martial Law.
It is not just about the end goal but also about means to reach the end goal. The means utilised on April 3 were outright illiberal and undemocratic, which, if allowed to persist, would alienate people from the constitution.
There are grounds on which it can be argued that Article 69 gives immunity to the proceedings of the parliament and that these cannot be questioned in the courts. It has been the view of the superior courts to not interfere in such matters, but it is equally important to remember that the parliament gets it sovereignty from the constitution and not vice versa.
It is important to emphasize that the social contract with the state once undermined is not just difficult to restore, but also gives way to the feeling of alienation and mistrust among people. The court can exercise the right of judicial review in cases of constitutional ambiguity. Under such circumstances, restoring political process is a legal as well as a moral necessity — to ensure that citizens continue to believe in the social contract with the state.
The author is a lawyer and teaches at University of London Affiliate Centres based in Islamabad.
Twitter: @HRazaPK
