11182017Headline:

System is evolving by Abdul Quayyum Khan Kundi

Many interesting constitutional events are happening in the country which will have far reaching consequences for the political evolution of our country. First is the Supreme Court hearing on petitions related to 18th and 21st amendments in the constitution. Second is the verdict of Election Tribunal to nullify the election of NA-125 and order a re-election. Third is the deliberation of the Judicial Commission (JC) whether there was any systematic rigging in last general elections to benefit a particular political party.

In the constitutional petition to challenge 18th and 21st amendments the honorable judges are exploring a question whether parliament has the mandate to change the basic structure of the constitution. For instance whether a parliament elected in a routine election can repeal the objectives resolution which is part of Pakistani constitution or whether an election has to be declared as an election for a constituent assembly to have those powers. We should look at this question from the perspective of structure of democracy where legislature, judiciary and executive as three pillars of the system have powers clearly demarcated. In this arrangement since constitution has already been drafted and enforced there is no need for a constituent assembly to make amends to it regardless of the scope and extent of these amendments. Judiciary in the democratic system has the right to interpret laws and has to ensure that no rights of the people granted by the constitution are curtailed by the amendments. For instance, if an amendment curtails any of the rights granted prior to the introduction of an amendment than a citizen can challenge it and Supreme Court has the authority to demand from the parliament to redraft it. Another situation where Supreme Court has an authority to intervene is when citizen’s come to the court that the agency granted to the parliamentarians was not extensive enough to change the fundamental structure of the constitution. In this instance citizens can demonstrate that in First Past the Post (FPP) election system only 15% votes granted the agency to the parliamentarians. This is a very small percentage of the total electorate. In this case Supreme Court can impose condition of a referendum to be conducted to validate the amendment introduced to the constitution. But Supreme Court in any case cannot prevent the parliament to draft amendments and introduce them to the constitution.

In order to prevent a clash between Supreme Court and parliament some countries have introduced constitutional courts. These courts look at the draft of the amendments and provide their judicial input whether there is any clash with prior or any other articles of the constitution. People also have a recourse to these courts to seek repeal of an amendment. Personally I am opposed to this approach because it undermines the mandate of people which are the sovereign even from the perspective of Islamic political thought.

The second interesting judicial decision was the verdict given by the Election tribunal in a petition filed to seek nullification of election for NA-125 against the incumbent Khawaja Saad Rafique. Election tribunal order re-election for the constituency because of irregularities committed by election staff. The decision adopted significance because Saad Rafique is not just member of the assembly but also a close confident of PM Nawaz Sharif and Minister for railways in the cabinet. Another significance of the decision was its timing because the Judicial Commission, formed to investigate systematic rigging in 2013 general elections, will be starting its hearing of witnesses from May 6th. It is still uncertain whether Saad Rafique will lose the re-election but PTI can surely claim victory in the battle although they still have to win the war. The real significance of the verdict is that a precedence has been set that election officials have to be careful in discharging their duties rather than succumb to any external pressure or mismanagement of their duties. If an election official is punished because of these irregularities then we can be sure that next time these officials will be more careful. It is time for civic organizations to get active and demand punishment of these officials as activism of a political party is for their narrow interest while larger interest becomes secondary.

The third interesting event is the on-going proceedings of the Judicial Commission (JC). The news and comments from the proceedings suggest that members of JC are looking at the larger picture. It seems none of the political parties have any substantial evidence that there was systematic rigging in last elections. The verdict of Election Tribunal in NA-125 can actually go against PTI because JC can take the view that system of Election Tribunal is working effectively and discharging their mandate honorably. The best outcome I can foresee from the proceedings of JC is a holistic review of the election process and recommendations of amendments that has to be incorporated by the parliamentary committee on electoral reforms. Political environment in the country also suggests that people are not in the mood to get back into an election cycle that just completed two years ago. They would prefer PML N to deliver on their promises in the center and PTI in KP province. If they fail to deliver than PTI will be thrown out in KP as has been the tradition of that province and PML N will be thrown out from center as it happened to PPP in last elections. This is the proper functioning of a democratic system and it should be allowed to grow and gain maturity.

Military establishment which has traditionally been a recourse for upset politicians to seek short cuts is in no mood to take direct control of politics. They seem to be happy and contented in pulling strings from behind especially when it comes to internal or external security or foreign policy. In recent Yemen Crisis, Chief of Army Staff (COAS) conveniently told media that parliament has to decide whether we should join Saudi Coalition or not. It was the right approach but that required meeting of the COAS with Saudi King also. So the PM obliged the COAS and they went together to the kingdom to ally their concerns.

Future of Pakistani politics is bright if the system is allowed to evolve from within without interference from any artificial intervention from outside. Slowly but gradually various organs of the state are acquiring a position of constitutional balance of power. The only weak link in this equation is the institutionalization of political parties which is hampering the elevation of capable to the top. Inshallah that will change soon too as there is growing awareness among political activists that their parties have to evolve.

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