COMMENT: The 18th Amendment case —Munir Attaullah - Wednesday, October 27, 2010

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As a nation, we are being asked to revisit that ancient philosophical dilemma whether the ends justify the means adopted. Is this a novel version of the ‘doctrine of necessity’?

A week ago, the Supreme Court (SC), after months of intensive hearings, passed an interim order in the above case that took everyone by complete surprise. The court decided to refer back to parliament for reconsideration — with its own recommendations thrown in — the constitutional amendment passed by parliament relating to the procedure for the appointment of the higher judiciary.
Meanwhile, it left open the question whether this provision (and many other changes to the constitution made by the 18th Amendment that were also under challenge by various petitioners) should now indeed be validly considered as part of the constitution. In its own words, “The court at this stage would not like to express its opinion on the merits of the issues raised...and would rather, in the first instance, defer to the Parliamentary opinion qua Article 175-A on reconsideration by it in terms of this order. We would thereafter decide on all these petitions.” The date for this ‘thereafter’ has been set for the last week of coming January.
As far as I could tell, everyone appeared to find sufficient comfort for their own point of view in some part or the other of the order to welcome the decision. For the government, and other critics of judicial activism, the court’s observation that the amendment must be deemed to have come into effect and, pending the parliamentary review, upcoming vacancies will be filled as per the procedure spelt out in the amendment, was seen as upholding parliament’s right to amend the constitution. As for that dubious argument that parliament cannot alter the ‘basic structure’ of the constitution through an amendment, there was a reassuring observation: “...the Court did not deem it proper to make it a touchstone to strike down a constitutional provision”.
Meanwhile, the petitioners, though a little disappointed, took heart from the fact that the court, by postponing its decision on merits for a few months, has not rejected outright their objections to the amendment. They can still hope for a favourable decision eventually. As for the more neutral observers, they have praised the court for wisely giving parliament another chance which, if acted upon to the satisfaction of the court, will largely take away the basis for a fundamental disagreement between two pillars of state on an important issue of principle. All in all, the short order seemed a masterly effort at a win-win solution to a thorny problem, right?
No, I don’t think so. Maybe I am alone (though I doubt it) in finding the order wholly unsatisfactory, so I had better give you the reasons that force me to draw that conclusion.
Let us start by asking what might happen should parliament, after due reconsideration, still decides the procedure it laid down in Article 175-A will remain unchanged. After all, as far as I can tell, parliament is not even duty-bound to consider the court’s recommendations (though wisdom requires the honour and dignity of the court be maintained by never ever openly voicing such a thought), let alone treat them as binding (or, will someone tell me the court’s recommendations are indeed binding?). Then what? Will that be the end of the matter? Do not bet on it. Certainly, in my reading of it (and I hope I am wrong) the judgement powerfully hints at otherwise.
Once again, it would appear that the only way of avoiding ‘the clash of institutions’ everyone talks about and dreads is to simply defer to the wishes of the SC without further ado. Everyone recommends that. But there is another side to this story that concerns me. No one questions whether it is indeed constitutionally proper for the court to be demanding from others what it repeatedly asks them to do.
In this particular instance, for example, let us remember two important considerations. Firstly, Article 175-A is a near consensual constitutional amendment, enacted by the political sovereign after lengthy deliberations and consultations. Secondly, there is that not unimportant little matter of Article 239, clauses (5) and (6). To remind readers for the umpteenth tedious time, the former states that, “No amendment of the constitution will be called in question in any court on any grounds whatsoever,” while the latter states: “For the removal of doubt it is hereby declared there is no limitation whatever on the power of parliament to amend any of the provisions of the constitution.”
Could anything be more firmly, unambiguously, and categorically stated, in the simplest and clearest of words? Before any arguments are heard in any court on the merits of any case, the first question to be decided is one of jurisdiction (that is, is the court competent and authorised to hear the case). I at least have not understood how then, given clause (5), the SC saw fit to hear the case in the first place. In my opinion, it had no jurisdiction.
Is it possible to sidestep clause (5) through a liberal and loose interpretation of some other general constitutional provision? I do not think so. For, there are two well established and sound principles of legal interpretation that would preclude such an effort. The first principle is to prefer the obvious meaning over the convoluted of anything clearly and unambiguously stated. The second principle is that a specific and clear provision has precedence over a general one in case of a perceived conflict between the two.
As for the merits of the petitions challenging Article 175-A, clause (6), and the other arguments just adduced, would also seem to lead to the conclusion that the SC should have summarily dismissed the petitions in the first place.
But it has not done so, presumably for reasons that the Hon’ble judges consider legally and otherwise good enough to override all what I have said above. Whether you buy my arguments or not, you will at least have to admit that the SC has adopted a course that is highly controversial legally. In doing so, could it be it is motivated by some honourable and higher notions of acting in the best ‘national interest’? I do not know.
What I do know is that in doing so the Hon’ble Court has controversially ended up putting on the spot many a power circle that has its own turf to protect. As a nation, we are being asked to revisit that ancient philosophical dilemma whether the ends justify the means adopted. Is this a novel version of the ‘doctrine of necessity’? And let us not pretend that all will be well in this blessed land if only we would let the SC be the final arbiter of all contentious issues. When elephants clash the only certain outcome is that the grass gets trampled.

The writer is a businessman. A selection of his columns is now available in book form. Visit

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