Parliamentary sovereignty vs judicial independence

Hussain Mohi-ud-Din Qadri

The events of past week surrounding the issue of petroleum products
have ignited debate on the role of the apex court vis-à-vis the institutions
of parliament and by extension that of the executive. The government of
Pakistan replaced petroleum development levy (PDL) with carbon tax to
be charged from the start of this financial year from July 1, 2009
onwards. Carbon tax was a part of the Finance Bill 2009 passed by the
National Assembly in its lengthy budget session. Hearing a petition
against the imposition of the carbon tax, the Supreme Court suspended
its imposition and ordered OGRA to furnish complete data on the oil
pricing mechanism. This resulted in the reversal of pre-July prices of
petroleum products.
Fearing that the government might lose Rs. 122 billion, which were
estimated to be received from imposition of the carbon tax for bridging
fiscal deficit in the budget 2009-10, President Zardari, in a late night
move, issued an ordinance imposing PDL raising the prices of petroleum
products as on July 7 position. Attorney General, Latif Khan Khosa,
admitted in the Supreme Court that the imposition of the carbon tax was
a ‘mistake’, which was rectified through issuance of an ordinance.
Instead of defending itself in the Court, the government thought it
expedient to resort to the issuance of ordinance to do the needful. Those
who held that the Supreme Court had intervened in the domain of
legislature as it was latter that passed carbon tax in the Finance Bill 2009,
were dealt a severe blow. The government disregarded the ‘mandate and
will’ of elected parliament itself by issuing an ordinance—a familiar course
of action during the dictatorial regimes--- instead of taking the matter to
the logical conclusion.
Those who champion the mantra of sovereignty of parliament are under
the erroneous impression that the passage of a bill or any other measure
or imposition of tax renders it immune to judicial intervention. There are a
number of ‘problems’ with this line of argument. First and foremost, does
the measure enjoy support of the electorate? Wide scale protest
demonstrations and rallies following the imposition of carbon tax reveal
the extent of public resentment and disapproval of the governmental
move. When people voted the present political administration into power
on February 18, 2008, they hoped that the ushering in of a democratic
order would make their life easier, not more difficult. If the government
was so much concerned about the ‘sanctity of public mandate’ being
‘violated’, it could well have gone to the people in the form of referendum
clarifying its present economic difficulties and asking them to extend it
complete support and put up with difficult times.
Pakistan has a written Constitution which prescribes role, function and
structure of each organ of the state. All institutions are creation of the
Constitution and are independent in their respective domain. This is also
the spirit of and a necessary condition for successful functioning of
federalism. The job of the judiciary especially that of the higher judiciary
is to interpret the Constitution, protect the fundamental rights and make
sure that the laws enacted by the legislature are consistent with the
Constitution. There is no doubt about the fact that legislation is the sole
responsibility of the parliament but the apex court has the power under
the Constitution to declare any legal measure null and void if it
contravenes the Constitution. Judicial intervention on this count does not
represent the infringement on the role and functions of parliament.
It is an unfortunate reality that executive organ of the state assumed
disproportional powers and role at the cost of legislature and judiciary
following the creation of Pakistan in 1947. In the absence of sustainable
structures, the palace intrigues hatched by the civil and military
establishments gave paramount importance to the executive. Historically,
legislatures and judiciary have been playing subservient role to the
executive. Parliaments were there to rubber-stamp the actions of both
civil and military regimes and give ‘legal’ cover to otherwise out and out
unconstitutional acts of civil and military dictators. The quality of
parliamentary debates has been poor to put it mildly. The record of our
elected parliaments in doing their basic job i.e. legislation has also not
been satisfactory. The parliamentary committees, which are the backbone
of any democratic order and symbol of parliamentary sovereignty due to
their oversight role, could not register much progress in calling the
executive and its institutions to account for their excesses. Parliament’s
election of former president who was still donning the army uniform is a
glaring case in point.
In the similar manner, the verdict of Federal Court (the then apex court)
in Mauliv Tamizuddin Case under Chief Justice Munir also set the sorry
tone. Decades down the line, our superior judiciary has been playing
second fiddle to the establishment handing down such decisions which
favoured the powerful elite at the cost of principles of justice, fair play
and legal propriety. It was as a result of heroic role of lawyers, media,
civil society and defiance of Chief Justice Iftikhar Muhammad Chaudry
that the judiciary was able to redeem itself and find its right place in the
national structure of power. The infamous ‘Doctrine of Necessity’, which
defined the conduct of our judiciary in the last sixty years has been buried
for good.
Through a painful process of evolution, we are coming to a stage where
national institutions have begun to assert themselves. Though there is
still a lot to be done and all is not well in the state of Pakistan but signs
are emerging that domineering role of the executive branch is being
questioned thanks to media-fostered public awareness. There is an urgent
need to cut its over-sized and disproportionate role in accordance with the
demands of Constitution 1973. This warrants the system of checks and
balance to be put in place so that no single institution gets to dominate
the power structure at the cost of others. Therefore instead of getting
bogged down in such meaningless rhetoric as clash amongst institutions,
we need to give every state organ what is its due as defined in our
Constitution. After judiciary has won its independence, it is now for the
legislature to follow the suit.