The Constitution is universally recognized as not only the most sacred document but also the ideological foundation upon which a state is raised. The very concept of a modern nation-state could not exist without a constitution. The constitution warrants a social contract between the state and its citizen and regulates their respective conduct. While the constitution subjugates citizens of a state to the laws of the land enforced through its institutions, it also fetters the all-powerful state from trampling upon the just rights of its citizens by synchronizing inter-institution functional balance and setting limits to the exercise of authority bestowed in the state institutions.
The Constitution also represents a national consensus on the willful coexistence of all divergent segments of the state, duly expressed through its elected representatives in parliament. In Pakistan’s parliamentary democracy will of the people is expressed through an elected parliament. Parliament is the absolute supreme institution of our country, as well as the creator, and author of the constitution of the Islamic Republic of Pakistan.
While the unaided authority to write, rewrite, or amend the constitution is the sole monopoly of the parliament. How could the parliament be excluded from the process of interpretation of the same document?
However, our seventy-five years history is an incessant tale of contradictions to every imperative of a functional state. Rapacious greed for power among institutions, existing and thinking within their respective institutional cocoons have failed the nation and the state, equally. This institution-centric myopic vision has undermined our supreme institution of parliament, crippled our constitution, and slew our democracy time after time since the very inception of Pakistan in 1947. Whenever our constitution was abrogated, violated, or trashed by means of unconstitutional adventures by a powerful institution, these indefensible acts were provided protection disguised in roguish interpretations of constitutional dictates. From inventing the law of necessity to the judicial murder of an elected Prime Minister to incriminating a sitting Prime Minister in plane high jacking, and concocting corruption cases to staging direct and indirect coup edetates to martial laws and hybrid regimes, our judiciary has served as an effective tool for the establishment in twisting the laws and providing constitutional cover to every unconstitutional crime through misinterpretation of the constitution.
Today’s constitutional, economic, and political, dysfunctionality of Pakistan are mere symptomatic outcomes of serious systemic causes. One of which is the judiciary’s unbridled discretion to interpret the Constitution.
Today, we must find a way and act to liberate Pakistan from its current chaotic state of all-encompassing dysfunctionality if we are to secure our shared tomorrow. Today, if we fail in prevention of continuing contrived and diabolical interpretations of the Constitution, at the hands of a few judges of high courts and the Supreme Court, tomorrow we shall not be able to escape the guilt of inviting a complete state collapse upon ourselves.
To wedge interpretational risks of our constitution we must first delineate explicit principles and lay down an unambiguous legal framework for any/all interpretations pertaining to the constitution of Pakistan. Here I take the liberty of proposing a few logical suggestions that are open to reviews by constitutional and legal experts.
Any/all interpretations by an entity other than the parliament shall only be considered as suggestive and nonbinding unless, approved by the parliament through a vote not less than two-thirds majority of the house, same as in the case of a constitutional amendment.
The Supreme Court and high courts may continue to interpret any/all constitutional questions brought to them, but all such interpretations must be presented to the parliament for approval. It shall remain parliament’s ultimate prerogative to approve, disapprove, amend, and rewrite the suggested interpretations as the supreme authority, with a two-third vote majority, and the decision of the parliament shall be binding, final, and irrevocable for any institution but the parliament itself.
If the parliament remains split on any interpretation and fails to win the support of a two-thirds majority vote of the total strength of the house in favor of or against a suggested interpretation it shall lose its right to amend or rewrite the suggestive interpretation. However, in such case/cases, the parliament may only accept or reject a suggestive interpretation through a simple majority of the total strength of the house. The status of all such approvals or rejections shall be deemed as interim and open to review, amendment or rewriting whenever the parliament is able to win the support of two-thirds of the total strength of the house in favor of the desired review, amendment or rewriting.
In case of a rejection of a suggestive interpretation by a simple majority of the parliament, the suggestive interpretation shall be sent back to the Supreme Court for review. The Supreme Court after reconsidering the initial suggestive interpretation may revise or re-present the same to the parliament for approval after second consideration. The parliament may accept the second suggestive interpretation with a simple majority in which case the suggestive interpretation shall acquire the status of an interim interpretation. However, if the parliament still wants to reject the second suggestive interpretation for again, it shall require a minimum of ten percent more votes than its previous simple majority rejection of the first suggestive interpretation. When the second suggestive interpretation is rejected and sent back to the Supreme Court the court shall review the same for a final time and may choose to revise the second suggestive interpretation or re-present the same without any revision to the parliament. However, if the parliament fails to win the support of two-thirds of the house against the final suggestive interpretation the same shall automatically take effect as the interim interpretation till it is rejected, reversed, amended, or rewritten with the support of a two-thirds majority vote of the total strength of the parliament at a later stage.
The above suggestions are being proposed in the face of repeated interpretations or misinterpretations, coerced, or connived by powerful institutions through schemed conspiracies. Pitching one political group against the other against bate of meager power share in return has been the modus operandi of unconstitutional forces in the country. Political parties as well as politicians have always remained eager to play as political, constitutional, and legal surrogates of illegal and unconstitutional forces to conceal the real face of the unholy struggle for power. Such shenanigans have rendered our nation with martial laws, controlled democracies, and hybrid regimes throughout our seventy-five years of history. The will of the people, parliament’s supremacy, and constitutional sanctity have repeatedly been overpowered, undermined, and ill-treated in the disguise of interpretations.
Seventy-five years down the road of independence we have failed to construct a politically mature polity, establish the rule of law or constitutional sovereignty, and achieve economic stability. Through these decades we have exchanged our logic of a collective existence for clever demagoguery, mob emotions, religious, sectarian & ethnic extremism. So far, we have only succeeded in yielding a fragmented, chaotic, and a near anarchic society which is at the very verge of an absolute collapse.
My humble argument presented through this article is not to provide a perfect solution to the problem highlighted here but to draw attention of the country’s intelligentsia, constitutional experts, and legal brains towards one of the primary yet ignored cause of the failure of democracy and the state alike.
Sardar Fida Hussain
The writer is the former Secretary General of Tehreek Suba Hazara.