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March 20, 2018

Who to blame: parliament or judiciary? — Part-I


March 20, 2018

A lot of debate is focusing on Supreme Court. Whereby it should be held responsible for validating the imposition of martial laws or not is under discussion. There is no denying the fact that such assertions are factually correct. This starts with Justice Munir’s upholding of dissolution of assembly and subsequent validation of martial law in 1958, then in 1969 and 1977. In 1999, though the martial law was not declared, it was in practice. In short, it will not be unfair to conclude that judiciary failed to protect Constitution, its primary duty.

That said, what parliament did to rectify the mistakes committed by the judiciary is a question rarely asked. In a country run through parliamentary system, one needs to figure out 1) the role of speaker and members of national assembly in protecting its sanctity; 2) mode and manners the amendments were made by PML-N in constitution; and lastly 3) interests of prime minister in the parliamentary business.

To begin with, other than Moulvi Tamiz ud Din, none of the speakers proved worth of their salt so for in performing the role the custodian of House is supposed to perform. In 1969, martial law was imposed instead of handing over power to the Speaker, Mr Abdul Jabbar Khan. He did not react. In 1977, Zia-ul-Haq dissolved the parliament. The then speaker Sahibzada Farooq Ali was also unmoved. In 1985, when speaker Syed Fakhar Zaman tried to show the muscles, the assembly threw him out through no-confidence motion.

In 1993, PM Nawaz Sharif and the President resigned as per arrangement popularly known as Gen Waheed Kakur formula. Neither the custodian nor any member of House resisted this extra-constitutional step. If the popular plea is accepted that how could speakers or parliament resist barrel of guns, judiciary can also have this argument in its defense. The role of chairmen Senate, incepted in 1973, has been no different.

In a parliamentary system, speakers have play historic role in the evolution of democratic norms. Briefly stated it is relevant to point out that in UK, that until the seventeenth century, the speaker used to be an agent of the King.

We may note that seven speakers were beheaded between 1394 and 1535 for annoying the Kings. It will be quite befitting to mention the reply of then speaker, Lenthall, to King who came to arrest members “I cannot give any other answer than this to what Your Majesty is pleased to demand of me”

Speaker (1728-61) Arthur Onslow was responsible for distancing his office from the government and established many of the practices associated with this office today. By the mid-nineteenth century, it was the norm that the Speaker should rise above party line. But, in Pakistan, speakers act like an MNA of ruling party with the sole exception of Malik Meraj Khalid.

Could one appreciate why the President Fazal Elahi continued to function after the military coup in 1977? President Rafique Tarar didn’t resign either after military takeover of 1999.

The role of parliament in protecting its sanctity is even worse than the conduct of speakers. When Constituent Assembly tried to strip off his powers, Governor General sent it packing and constituted 2nd constitution assembly, which retained almost all the members from the first assembly. Even persons of high caliber like Fazal-E-Haq and Huseyn Shaheed Suhrawardy chose to become its members. Second assembly ratified the governor-general's ‘own version of constitution’ in 1956. In 1962, General Ayub formed a new national assembly and introduced presidential form of government, which was principal departure from the vision of founding fathers. None of politicians moved the SC against the change in the system.

In 1971, Zulfikar Ali Bhutto opted to become chief martial law administrator as well as the president. Nevertheless, his parliament gave the first Constitution of Pakistan. This constitution inter-alia termed its violation as case of “high-treason”. But he, too, tried assimilating more powers for himself through fifth and sixth amendments, instead of strengthening the institutions. Ian Talbot wrote that Bhutto missed the opportunity of restructuring the civil–military relations in the aftermath of the war between East and West Pakistan.

Author is an analyst and tweets @Chafqat

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