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March 22, 2018

Who to blame: parliament or judiciary? part-II


March 22, 2018

In our discussion appeared in this paper, we tried to evaluate the performance of speakers and the role of parliament in protecting the constitution and rule of law. We found that their conduct was no less perfunctory than judiciary. In this part we will briefly survey the interests of prime minister in parliament proceeding and the way serious business like amendments have been made.

Parliament was restored consequent to Elections in 1985. All the acts passed by the military government were indemnified through 8th Amendment, which inter-alia empowered the president to dissolve Parliament under Article 58 (2) B.

In 1988, President Zia dissolved Parliament. Strangely, the then Chief Minister Punjab Mian Muhammad Nawaz Sharif continued to hold office though there was no prime minister. In 1988, a new parliament came into being but it failed to initiate any proceedings against the abrogator of the Constitution.

Benazir Bhutto and Nawaz Sharif’ governments and of course the parliaments were dismissed twice from 1988-1999. In 1996, Nawaz Sharif got heavy mandate but like ZAB, this two-thirds majority went into his head. He attacked the SC, compelled CJ and President to resign. He even didn’t tolerate very amiable army chief Gen J Karamat. Then he himself met the same fate as Musharraf dismissed his government in 1999.

In 2002, a new parliament came into being. It ratified all the amendments made during 1999-2002 through the 17th Amendment. None of the opposition party voted against its passage. Opposition mere absented from voting. After the completion of tenure of this parliament, Pakistan People's Party (PPP) came into power, which did nothing to impeach the military rulers.

This followed PML-N term. The proceeding was initiated against Pervez Musharraf for abrogating the Constitution. This occurred only on the directions of the Supreme Court. And then, he was allowed to flee abroad amid the proceedings.

To what extent members of the National assembly took interest in its proceedings of Parliament? For the sake of brevity, we look into period since 2013. During four years, the prime minister graced the house six times. Similarly, the participation of active lawmakers was dropped from 304 to 270 in these four years. Around 69 lawmakers did not contribute to the parliamentary agenda or debates during this period, according to annual reports of Fair and Free Election Network, an NGO that monitors the proceedings.

The Supreme Court is under criticism for assuming the legislative work. Has the court framed any law contrary to the Constitution? Critics have failed to point out. Article 184 of the Constitution empowers the apex court to entertain petitions of public importance. Is it not a fact that Nawaz Sharif invoked the same jurisdiction for quashing references pending against him?

The Constitution lays down criteria under Articles 62, 63 for the members of Parliament and provincial assemblies. The treasury and opposition couldn’t agree on amending these articles; nor did they amend Article 184. Then how could Parliament now ridicule the apex court for exercising powers granted by the Constitution. In the given situation, is it not within the purview of the Supreme Court to determine the fitness of the case?

After the disqualification of Nawaz Sharif, Parliament amended Election Act 2017 and committed proviso “if he is not qualified to be, or is disqualified from being, elected or chosen as member of the Majlis-e-Shoora (Parliament) under Article 63 of the Constitution.” This change was person-specific to retain him as party head which was struck down by the Supreme Court being in conflict with the Articles 62, 63.

That followed barrage of criticism centered on an argument that politicians are soft target of the apex court which shies away from trying the military rulers. Is the Supreme Court or Parliament vested with the power to impeach for violation of the Constitution? The law treats violation of Constitution as high treason under Article 46 which empowers half of the members of any House to initiate proceedings through serving a notice. Did Parliament of 1988 and the ones formed until now take any step? Answer is in negative.

The PML-N amended the Constitution without serious discussion when 13th, 14th and later one 21st and 22nd amendments were carried out. Shall we call it a democratic norm? Political issues must be settled by Parliament instead of referring them to court. This was aptly advised during Moulvi Tamiz-ud-Din case well before the trial went under way as the issue came under question that the case was of a political nature and Justice Munir had remarked that such political questions must be resolved in political realm. He had even tried to broker a deal between the plaintiff and the representatives of defendants but the later refused to accept it.

The role of Supreme Court and Parliament leave much to be desired. Political parties play the politics of expediency and serving the electorate has appeared to be the last priority. Parliament earns respect through sweat and toil instead of the lip service. All institutions need to stay with their legal confines lest the democratic system is stuck in pendulum sine die.

Author is an analyst and tweets @Chafqat

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