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There has been a steady surge in legal constitutionalism in Pakistan after the restoration of the Judiciary in 2009. By the legal constitutionalism it is meant that legal, political and fundamental rights are secured through a legal process. Whereas, under a political constitutionalism, the ultimate guarantee and protection of rights and liberties are entrusted to political institutions like parliament and cabinet/executive. These two constitutional traditions are followed across the world. There is a hybrid system too in some countries.

The Supreme Court has been in continuous focus during these years due to the exercise of suo motu jurisdiction. It is a manifestation of the legal constitutionalism. Almost every social, political and economic issue ends up in the Court. Cases relating to corruption of politicians, bureaucrats and public and proceedings in Courts have eroded people's confidence in democracy and politics and in the system as a whole. The net result is that people now look up to the Supreme Court and not towards their chosen representatives in Parliament. From dams to democracy, steel mill to cellular licences and from pollution to police reforms, almost every issue is debated and decided in the courtrooms rather than in Parliament. The handy tool of suo motu jurisdiction and the instrument of fundamental rights come into conflict with Parliament, Executive and democracy and claim custody of the Constitution.

The slogan of the Lawyers' Movement (2007-2009) was that the panacea of all illslaid with an 'independent' judiciary. It was enchanting and intoxicating for the aspiring but deprived lot of society. Its side effects were either not realized or were ignored. It was clear that empowering of the judiciary beyond its constitutionally mandated zone meant weakening of the political institutions in their constitutional spheres. Owing to the sickening failure of the incumbent regime of that time, even politicians unthoughtfully boarded the bandwagon and shot in their own feet. They hoped that by supporting the judiciary, they would be able to get rid of General Musharraf and regain power, privileges and glory, not realizing that everyone in this country carried the burning desire of populism.

The result is that despite the excessive exercise and experimentation of legal constitutionalism there has not been any visible change in the lot of the common man. There is a general perception, partly created by their deeds, that political leadership has no respect at home or abroad. There is also a deep (mis) perception that politicians cannot be entrusted with actual power. Unfortunately, these perceptions are not good for Pakistan. The Constitution does not envisage any other way of exercise of power.

Legal constitutionalism has paralyzed the working of the executive and Parliament. In last ten years, many laws were struck down and constitutional amendments were questioned in Courts. The distrust about democracy is apparent. Prime Ministers were removed. Members of Parliament were de-seated on quo warranto petitions by busy bodies. Law in England and elsewhere for centuries and even in this country has been that the people decide who sits in Parliament. Constitutionalism means the underlying constitutional principles and constitutional norm (s). Continued exercise of legal constitutionalism is thus bound to weaken democratic and political institutions and erode peoples' trust in these institutions. It is shrinking the limited political space in Pakistan.

Preamble to the Constitution and the Objectives Resolution (1949), which is now a substantive part of the Constitution, would show that the basic constitutional norm was clear to the founding fathers and constitution makers. Power belongs to people. It is provided therein that 'the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; and 'State shall exercise its powers and authority through chosen representatives of the people". This is the underlying scheme and design of the Constitution. It needs no explanation.

Granted that the Courts are entrusted with the enforcement of fundamental rights but a look at the text of the Constitution and the chapter on fundamental rights would show that the language employed therein refers to 'person' or 'citizen', requiring an actual legal injury or infringement of a right. The discretionary jurisdiction under Article 184(3) of the Constitution also conditions the exercise of jurisdiction upon a large-scale violation of a fundamental right. The exercise of a similar jurisdiction under Article 199 of the Constitution requires a properly sworn affidavit and a legal injury of an aggrieved person but when it comes to the alleged large scale violation of fundamental rights and exercise of jurisdiction under Article 184 (3), an affidavit of an Advocate on Record or a note from a judge taking up a notice would suffice even to strike down a law or a constitutional amendment. Neither the spirit nor the language of the Constitution supports this practice. The result is that after spending thousands of hours of public time on this exercise there is no effective change. Nor can there be any. No social or political change can take place without cooperation (not coercion) of two other branches of the government.

The constitutional ethos is that the state power is to be exercised by the people in the manner provided by the Constitution. Ills of democracy cannot be remedied by the judicial medication or even surgery. The vaccine of the viral maladies of corruption, dishonesty and falsehood and several other malignancies is prepared from plants of education and socio-economic uplift and political awakening. Prime-time political programs, where swarms of politicians and retired officials, move from one channel to another, berating and undermining the political constitution, are only spreading distrust about the rule of law and democracy.

In the large scheme of politics, liberal democracy is now a universal norm. In the affairs of state, means and ends both must be legitimate. Form and substance both are important. Arrogating powers belonging to other branches of government not expressly granted by the Constitution cannot further noble causes. Continuous experimentation and interference with the system reflects immaturity.

(The writer is an Advocate of the Supreme Court and a former Additional Attorney-General for Pakistan)



Copyright Business Recorder, 2019

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