18th amendment is a blessing in disguise
23 April, 2010
By Amjad Malik
18th amendment reversing most of 17th amendment provisions which legalised General Musharraf’s legal frame work order (LFO) is a blessing in disguise in this political uncertainty and turmoil where dictatorship peeps through any hole of conflict, dispute and deadlock. Both Premiers Ms. Bhutto and Nawaz Sharif after learning lessons from history and their duel signed a charter of democracy (COD) in London in May 2006 vowing to bring political reconciliation plus democracy. This amendment after 4 years have politically translated that commitment into a reality. Historian will forget Zardari’s broken pr omises and will remember 18th amendment and successful alliance Govts mustering consensus as his legacy.
I am sure and rightly so, petitions will come before the Supreme Court challenging some of its provisions. Supreme Court also will have a task to see whether any clause remains ambiguous and or un interpreted in public domain. But to me, deleting, amending and or adding to what has been gifted to the nation may not be possible. It’s a rightful job of the SC to interpret the constitution, hear petitions on appeal, settle major disputes between provinces and remove a deadlock, but what SC may not be able to do is to reverse what has been achieved by collective wisdom of the parliament a rightful job of the public representatives representing the will and wisdom of 170 million souls.
Of course there are reservations, lack of debate, removing constitutional cover in intra party elections clause 17(4) are a few thorny issues and lawyers leadership must prepare their papers, and furnish their reports by way of demand to political parties who in return are duty bound to consider either including them in next amendment and or in their manifesto before next elections. If they do not lawyers are at liberty to act as a pressure group and lobby for support. The Job of lawyers is to fight for rule of law and supremacy of parliament and constitutionalism. That is the principle on which the whole fight was based against the military ruler. Lawyers are currently fighting as to who appeared in which martial law court or who is loyal to bench and who is loyal to the king. Every lawyer wh o has a brief can appear for his clients according to his own conscience. People on matter of principle may restrain themselves not to appear before a bench and or a judge because of their own reasons and conflict of interest but that is an individual choice. I think it’s a useless debate. The debate must centre to erect a legal consensus through a concrete academic argument whether a law made by parliament is purposeful, compact and technically correct or not, and can SC undo it if it is not. Examples of India and USA are futile as we have a written constitution which barred undoing Parliamentary legislation (clause 238-239).
We must remember that we are still in transit, a road to democracy is in the early phase and unelected commodity is in dire haste to reverse what has been achieved so far. NFC is a good thing so as 18th amendment. Alliance governments in all provinces will promote political reconciliation and art of politics by sitting and working together with people of different thought, objectives, line of action and priorities. It’s a good experiment and major political disputes are only resolved but through negotiations and on the table. A few years back, the same Parliament changed the basic structure by legalising LFO and made President the most powerful after God in Pakistan through 17th amendment and the same Supreme Court legalised it by declaring it in accordance with the law and constitution. If only that’s not enough, in Zafar Ali Shah case which challen ged military coup of 12 October 1999 of General Musharraf, the dictator was given carte blanche to amend the constitution, the right which even Supreme Court did not have at that time. Competent Lawyers have not yet left mourning on the sins of the SC for their elaborations on ‘law of necessity’ and here we are with a new debate. There is no alternate to the collective wisdom of the parliament, and you get what you sow, and you elect who you vote that’s the rule of the game.
There is no question on public interest litigation and invoking SC where necessary, but lawyers must argue on point of law, and initiate debate on thorny issues which needs settlement. SC rightly so must hear the cases on its merits, and give legal onions to settle the dust and that’s all. If SC starts invoking its jurisdiction in the parliamentary domain which is the honours job of the legislators, then I am afraid the whole parliamentary frame work will be disturbed. On challenges to legislation, the scope is limited as far as the remedy is concerned. We must foster legislative making process and there are lot of new bills which need to come especially changing the Accountability laws replacing it with an independent, fair and transparent accountability process, and above all election commission. That happens only if we move on, and keep moving.
Lawyer’s struggled hard to bring these judges back and the judge have an uphill task to seek financial autonomy, separation of power from executive, create resources, security, training and accountability of judges, lawyers syllabus, and above all rid judiciary from corruption and incompetency. Only good lawyers in return become good judges. The day a civil judge starts dispensing justice and earns the technical capacity to deliver justice will be the day to be proud of and that’s is the day for which millions of people came on streets to wave for Iftikhar Mohammed Choudhary who showed the dream of free judiciary to the masses. This is and will be a sour dream if the chief’s attention is diverted from his original goal and he is drawn into ‘headlines’ and ‘news breaks’.
Let’s not dwell on the issue what SC can or cannot do, I think question is how can we muster strength for both. Parliament for legislative work and Supreme Court for speedy justice. Courts need an overhaul and no better than justice Choudhary who have already accepted the challenge and may do the requisite job. That’s not possible if the executive remains at arm’s length so he needs them to bring free judiciary from the grass root level where justice is not neither delayed nor bought but is dispensed the way it is seen to be done. He does not afford locking horns with the parliament which may reverse what has been achieved so far, and mind you if that happens that will act like music to the ears of dictator. Poverty, unemployment, load shedding and national debt is acting equally as drone attacks on the heads of poor nation, lets see how can we can come up with those challenges and pave simplicity and good governance in our ranks. If these issues are not controlled at this stage, then debate on issues like 18th amendment and SC jurisdiction will look like a midget as there will be plenty to talk about, a situation akin to Kirghizstan.