Clash of institutions

Military could take over in Pakistan if clash between judiciary and parliament persists.

There are three types of political systems in the world: constitutional, non-constitutional and mixed. The current debate in Pakistan over the supremacy issue and the current institutional crisis is related to these concepts. Some people think that there is a constitutional system in Pakistan. Others believe that we have a mixed system and that Pakistan is a parliamentary democracy with a written constitution. Unfortunately, different segments of society, such as politicians, journalists, television anchors, people in the legal profession and civil society do not understand the true spirit of these three types of political systems.

The concept of parliamentary supremacy emerged in Great Britain through a long evolutionary process when parliament as an institution was unheard of. According to this system, parliament is the supreme institution in the country. No other institution is above parliament as it is the creator of all institutions, including the monarch or queen. Parliament can make any law through a simple majority. There is no difference between an ordinary law and an act of parliament or a formal constitutional amendment. A written constitution is not required in a true, original and genuine parliamentary form of political system, such as in the UK.

Now, we come to the concept of the supremacy of the constitution. A constitution is supreme or sovereign in a system where there is no parliament but an assembly. The concept of the supremacy of the constitution came from the United States. The constitution is supreme because it could not be amended by Congress/assembly only. The concept of government is completely different in a constitutional system such as in America, where the system is based on the concept of separation of powers with checks and balances. All three institutions of a government i.e., the legislature, the executive and the judiciary work independently within their defined parameters. In American judicial history, there have been instances when the Supreme Court declared the laws enacted by Congress and actions taken by the executive null and void.

Finally, we come to mixed systems. Generally, mixed systems are prevalent in Third World countries e.g., India and Pakistan. The Indian political system is also a replica of the British parliamentary system but India also has a written Constitution. Both in India and Pakistan, all political institutions get their powers from the written Constitution. According to both the Constitutions, the superior judiciary has the power to nullify any law passed by parliament. The Supreme Court of Pakistan has declared laws passed by parliament unconstitutional. But the right of the judiciary to declare any law unconstitutional does not make the Constitution supreme because parliament can amend the Constitution.

The Indian Supreme Court, in the mid-1970s, declared amendments to the Constitution unconstitutional on the basis that they were repugnant to the basic structure of the constitution principle. According to the Indian SC’s decision, some basic provisions of the Constitution are superior to some other provisions of the same Constitution. So, the laws and constitutional amendments should also be in accordance with those superior Articles. Similarly in Pakistan, the Eighteenth Amendment was challenged in the SC. Keeping in mind the short judgment and the rulings of the judges and the opinions of the legal community, it is assumed that there are also some superior Articles of the Constitution, which are the basic structure of the Constitution. Some people think that the SC of Pakistan can also declare an amendment to the Constitution unconstitutional on the basis of the basic structure principle. On the other hand, the American constitutional and the British parliamentary systems fail to recognise such kind of basic structure. According to the American system, the whole constitution itself is the basic structure; the American Constitution contains seven Articles, which all carry same weight and no single provision is superior to any other provision of the Constitution.

If we look at the history of Pakistan, we see that we unfortunately failed to establish both the supremacy of parliament and supremacy of the Constitution. Historically speaking, these two concepts failed to assert as a political system in the country. In addition, the debate or clash among political institutions over the supremacy issue is irrelevant and premature. The real issue is the supremacy of the civilians over the armed forces. In a strong and stable democracy, the armed forces are under the control of civilian leadership. The military could take over if the clash between these two civilian institutions persists.

Published in The Express Tribune, August 25^th, 2012.