Legal or political

Parliament is mother of all institutions in a parliamentary democracy, and its supremacy is recognised as a linchpin in well- established democracies, like UK, Australia, India, New Zealand and host of other countries, where the supremacy of Parliament is not only established in letter and spirit but also be seen to be established so in all forms and manifestation. Sadly, this is not the case in Pakistan ‘due to repeated unconstitutional interventions and manipulations by the undemocratic forces’.

Today, the Parliament has been reduced to the godforsaken forum by the ruling elite, while mostly relying on the promulgation of presidential ordinances to run governmental affairs whether the emergent conditions exist or not do not matter. The recent promulgation of such ordinance pertains to the holding of next month Senate elections requiring amendment in the Constitution by the Parliament. But, it has been done away with ease to the utter dismay of the legal fraternity (PBC) and the political forces all spectrums, of course, with the exception of the treasury benches. How unfortunate and dangerous, the constitutional imperatives are being sacrificed at the altar of political expediency. Its ramifications may surely be taken serious notice by the people of the federation who are the real stakeholders?

How unseemly that the PTI took two extraordinary steps, firstly, filing of the Presidential reference in the Supreme Court, praying for decision in favour of open Senate elections, and secondly, promulgation of the Presidential ordinance stipulating open Senate elections without waiting of the apex court’s decision. Its promulgation may not be suggestive of ‘method in madness’ by any measure because of its anticipation of the decision by the apex court with the overtones of probability. Such anticipation might not be taken in good strides as was evident from the reaction of the representative bodies of the lawyer fraternity those had already contemplated to challenge it, if not already done so, in the Court of law as unconstitutional and untenable.

The two extraordinary steps of the government soon after it failure to muster the requisite support of the Parliament for the amendment bill (February, 2021) might have dire insinuations. One, the promulgation of the Presidential Ordinance in favour of open Senate elections amounted to a parallel forum of making amendment in the Constitution thus undercutting the Parliament’s role without compunction. There was no ambiguity that amending the Constitution was the exclusive domain of the Parliament. Any attempt or mechanisation to fiddle with this privilege of the Parliament may be deemed as abomination against democracy. To play mockery with the primary law of the land should not only be avoided but also resisted no matter whatever quarters it may originate from. Secondly, the Presidential reference may be prima facie a crafty move for pre-emption of the proceedings before the apex court. The government move may be judged as an attempt to put pressure on the Supreme Court as host of political analysts and lawyer community’s representative organisations maintain. The government’s labeling the Presidential Reference as a ‘sunset clause’ and would die if the apex court’s decision was against the said reference was like mealy-mouthed statement devoid of commitment. The argument may not hold water because the attempt to push the apex court to adjudicate on untenable constitutional law might not have been contemplated in the first place. Undoubtedly, the Supreme Court, being the custodian, knows the indispensability of its obligations according to the imperatives and spirit of the Constitution.

The strong response of the Opposition was predictable in the face of the ruling party’s attempt to reduce the Parliament as a redundant forum. Close assemblies if legislation is to be carried out through the Presidential ordinances, warned PPP Chairman Bilawal Bhutto, adding that such an outlandish practice would surely ruin the democracy, the Constitution and the people’s right to elect their representatives to govern the country. ‘It will not be allowed’ he asserted. He pointedly highlighted the outrageous contradictions in the government’s reckless pursuit of seeking the Supreme Court’s decision on the Presidential Reference that was devoid of the pre-requisites and circumstance those were required for the promulgation of Presidential ordinance. It might be evidently an attempt to bring the apex court under pressure for favourable decision on the reference.

The government strategy was also seemingly based on downgrading the Parliament implicitly implying that the desirable legislation might not be contingent upon the support of the Parliament. Its tactics of crash- and- get might have put to test in this case as well. It was shocking if this was the belief among the members of treasury benches. The PDM had forcefully appealed to the apex court to turn the reference back to the Parliament because it involved the question of amendment of the Constitution and Parliament was the only forum for this important legislative business. The honorable judges understand this point aptly with conviction rooted in the sanctity of the Constitution. Parliament and the Supreme Court are the very important arms of government and their charter of duties has been aptly defined in the Constitution unequivocally, eloquently and clearly.

Haplessly, PTI leadership may be generally known for stirring controversies in their bid to get political mileage by hook or crook. The legitimacy of such adventure or misadventure does not matter much for the ruling elite if it serves their purpose rightly or wrongly. This propensity of ends justify means may be intrinsically rooted in the Party (DNA). The PTI, as per the perception hanging in the air, has been foisted upon the people through the allegedly fraudulent and rigged elections and various findings of the credible international organisations like EU and Pildat including Pakistan Human Rights Commission and the international media, maintain so without mincing the words.

It may be kept in mind that few days earlier; the PTI leadership was crying horse in the Parliament to bring amendment in favour of open balloting in the Senate elections but could not because Opposition was not considered worthy of taken into confidence even on such an important matter. The government should have reached the opposition to appraise it about the criticality of the amendment at this point of time. But its tentacles of bellicosity were seemingly too strong to bend.

The Opposition wanted instead holistic reforms in the electoral process instead of one item agenda. The treasury benches should have reached out the Opposition to bring home of its priority about open Senate elections instead of following the flawed strategy of tarring the Opposition with the brush of ‘horse trading’. The filing of Presidential Reference in the Supreme Court followed by the Presidential Ordinance for open Senate elections might be pre-planned endeavor as they were sure the bill would not get through without the support of the Opposition. The government’s boorish juggernaut afterwards was like no-bars-hold when it managed to promulgate Presidential Ordinance for open holding of the forthcoming elections of the Senate instead of secret balloting. It was by any measure an amendment in the Constitution through the ordinance that smacked of dictators’ berating of the Constitution considering it few pages of document that they could tear apart at will.

However, their misplaced expectations rooted in the narrative of no harm in taking chance might have been bridled by the moderate elements. The alacrity may be dangerous in perpetuity. This attempt may not be brushed aside keeping in mind the best democratic practices and conventions. It may deserve abhorrence because the question of amendment in the Constitution may not be pursued on haphazard manners through the prism of availing the opportunity without taking into account the merits and demerits of the move. They knew it very well that amendment was the sole prerogative of the Parliament and not the President’s office or any other forum. The filing of the Presidential Reference in the Supreme Court and the promulgation of the Presidential Ordinance in quick succession may cast aspersions on the intentions of the PTI leadership strengthening its impulse of exclusiveness rooted in self-righteousness. They also knew very well that the apex court was entitled to interpret the Constitution, and amendment in the Constitution was the exclusive domain of the Parliament. How could the ruling party could afford engaging in the forbidden area considering it a cakewalk?

Such flip flops on such an important constitutional issue were not acceptable and would be challenged at all forums, the PPP chairman reiterated with firm resolve while addressing a mammoth political rally held recently in Hyderabad. The Supreme Court’s decision on the Presidential Reference was likely to be controversial as the Opposition parties had been pointing out that the filing of the Presidential Reference was essentially politically motivated and therefore the apex court should rescue itself from adjudicating on. “The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if question is fundamentally political then the court will refuse to hear that case by claiming it does not have the jurisdiction”, maintains eminent Professor John.Finn. Food for thought for all who are holding coveted positions deciding the trajectory of the fate of the civil society.

muhammadshaheedi@yahoo.com