Apr 14, 2008
Justice Wajihuddin: Constitution, Not Parliament is Supreme
Pakistan’s politicians frequently speak of their desire to restore the supremacy of the country’s parliament. The lawyers’ movement has been accused by some politicians, including from the PPP, of subverting this principle.
But the parliament itself has constraints. On today’s Kamran Khan show, retired Justice Wajihuddin Ahmed made an excellent point: the constitution, not parliament is supreme.
And so while some have criticized the lawyers’ movement for things such as threats of long marches, they should know that one, the lawyers’ movement is well within its right as part of civil society to engage in peaceful protest, and two, there should be nothing controversial about restoring Pakistan’s constitution and the guardians of that document, the Supreme Court.
The judiciary in Pakistan should be independent. It cannot simply exchange one master for another. If it does, Pakistan will find itself back at square one in another five years (or less).
In a western style democracy, executive, legislature and judiciary are considered as co-equal branches of government, each with its separate powers. The problems usually start when any one of the three branches tries to usurp the powers of the other two. This is not easy balancing act but necessary for democracy to survive. Unelected judges can not and should not arrogate the powers of the elective representative unto themselves. Each branch must respect the other branches and not step on its toes. Democracy is a process, not an end-point that you arrive it. Democracy evolves with the time and the effort of all concerned to serve the needs of each society with its distinct values and priorities.
Riaz, you make some excellent points.
I would like to highlight this one in particular:
“Unelected judges can not and should not arrogate the powers of the elective representative unto themselves.”
I do not deny the judicial activism of the Chaudhry court. But, in my opinion, that came within the context of an impotent parliament. PILDAT (www.pildat.org) published a report soon after the previous National Assembly completed its term, demonstrating just how inactive it was. If the Steel Mills sale or missing persons cases won’t be discussed in parliament, then where can it be discussed? That vacuum compelled a conscience-driven Chief Justice to act on a suo moto basis.
It’s a new ball game. Parliament has teeth. Justice Iftikhar has indicated he won’t step on its toes. Perhaps the suo moto powers should go. But in respect to the judiciary’s main powers, once you castrate the courts and its right to judicial review, you say goodbye to the constitution and hello to mob rule.
Excellent posting Sir as always. Inshallah Pakistan will be witnessing complete adherence to rule of law very soon. And things will go back to all but normal.
Thank you, Khakan Khan. I don’t think Pakistan’s has ever had the rule of law. So if this is realized, it would be for the first time in Pakistan’s history. Political reform in Pakistan right now, I think, is not about reverting to an ideal, as such an ideal was never realized. But it’s about flawed leaders learning from their mistakes and making a u-turn as a country of 160 million heads toward the edge of a cliff.
I share your hope that the rule of law comes to Pakistan — that it returns not only at a broader systemic level, but also for the common man. There is no adliyaa without adaalat.
Thanks Sir, you are doing a fine, fine job by keeping such a wonderful blog active. I realize your point very well. That has always been why we have lagged behind, Pakistan and its people promise so much and promised so much and we the youth are committed to do the rightful and deliver the goods Inshallah. I am glad the situation on our western borders has calmed because of which we were getting all the bad news from Pakistan on a daily basis. Now we will Inshallah have a judiciary which will dispense justice to all citizens of Pakistan, with out any fear or favour.