Chief Justice V Nawaz Sharif or Parliamentary superiority vs Judicial review, Rafi Bhatti

Chief Justice V Nawaz Sharif or Parliamentary superiority vs Judicial review, Rafi Bhatti

Ever since the Supreme Court has disqualified Mian Nawaz Shareef for holding any public office and ordered his indictment for living beyond means of, in the Panama leaks Case, he has embarked on a campaign of vilification against the superior judiciary, putting forth a totalizing and exclusivist argument portraying that the `Judicial Review’ powers had transgressed `Supremacy of the Parliament’. This article is an attempt to thrash out this juristic issue.

The concepts of `Supremacy of Parliament’ and `Judicial Review’ of executive actions and legislation of parliament represent two distinct models of   democracy prevailing in the world namely the `England Model’ and the `American Model’.          

`Parliamentary Supremacy’ is a concept derived from the England Model which means that no person or body can override or set aside the legislation of Parliament.  It may be understood that England is the only country in the whole world which does not follow a written constitution and the whole system functions by traditions and precedents called `Common Law’. In England, intra-institution relationships have been evolved, from a centuries long political struggle for power, between the monarchy’s assertion of `Devine Right of Kings’ and the parliament’s banner of `Rule of Law’, passing the milestones of `Magna Carta’ in 1215, Bill of Rights 1689, English Civil War, the execution of King Charles I and the establishment of a parliamentary republic under Cromwell.  (The phrase `Rule of Law’ was first used by Scottish theologian Samuel Rutherford  to assert the primacy of the laws of the parliament against King’s decrees and orders).

The result of this epic struggle was merger of the King’s powers with those of the Parliament. The Parliament came to be known, in the mouth of a lawyer, the King, the House of Lords, and the House of Commons: these three bodies acting together being described as the "King in Parliament".

The England model, that then emerged represented a particular entwining of powers called   `Fusion of Powers’ between the three state organs the executive, legislature and judiciary, as opposed to the modern age concepts of `Separation of Powers’ and `Balance of Powers’ universally adopted by rest of the democratic world. For example the Law Lords (judges) were part of the Parliament, as they sat in the House of Lords, the upper house of the legislature. Lord Chancellor, an executive officer appointed by the King on the advice of the Cabinet, was the ex officio Speaker of the House of Lords, a member of the Cabinet and simultaneously administered the courts, appointed judges, sat as a judge on the Judicial Committee of the House of Lords and the Judicial Committee of the Privy Council, the senior tribunal court for parts of the Commonwealth.  He even enjoyed ecclesiastical functions of making certain church appointments and sitting as one of the thirty-three Church Commissioners.

The concept of `Supremacy of Parliament’ and `Fusion of Powers’ was never accepted by the European nations like France, Germany, hence after signing Maastricht Treaty of 1992 and joining the European Union, UK had to accept and harmonize her legal framework with the European Communities Act 1972 . Consequentially Constitutional Reform Act -2005, was passed creating the Supreme Court of UK, replacing the institution of 12 Law Lords sitting in the House of Lords, hence separating the judiciary from the legislature. The Lord Chancellor’s office too was diluted, to separate the judiciary from the executive. His Legislative functions were transferred to an elected Lord Speaker and the judicial functions went to the Lord Chief Justice. The Lord Chancellor's Department was replaced with a Ministry of Justice and the Lord Chancellor currently serves in the position of Secretary of State for Justice.

In UK citizens rights too had not been formally defined and were hidden in higgledy-piggledy set of statutes, common law and judicial precedents. The EU forced UK to enact Human Rights Act 1998. formally implementing the `European Convention on Human Rights’.  The Act also formally empowered the courts with `Judicial Review’ by issuing a `Declaration of Incompatability’ where any parliamentary legislation violated a human right.  In England, historically, the judicial review of executive action and of administrative decision-making had been in vogue and courts could issue writs of Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto. But after the passage ofHuman Rights Act 1998, the scope of Judicial Review was extended.  Hence the concept of `Parliamentary Supremacy’ was “formally buried in its birthplace”. The concept was further dented when the UK courts issued numerous rulings holding that a wide range of European Union (EU) legislation was binding on the UK and the UK courts could enforce them.

In two recent judgments the UK judiciary has gone past just declaring incompatibility and nullified some parliamentary legislations. Lord Neuberger's judgment in the 2015 case Evans v Attorney General [UKSC 21, 2015 AC 1787] expanded ‘the principle of legality’ to the point of rendering the statute utterly insignificant. The same happened in Nicklinson v Ministry of Justice in 2014 (UKSC 38AC 657). The judiciary has also interfered in policy matters. In a public interest case the High Court declared that Sefton Council could not legally freeze the fees it pays to private companies to look after old people needing care.

 Recently the same court ruled that the Isle of Wight could not cut its social care budget for the disabled. In another case the Supreme Court rejected a regulation aimed at curbing the number of forced marriages. The regulation envisaged that in cases where one or both of the parties were not British citizens – only those over the age of 21 would be allowed to enter and live in UK afterwards. The Supreme Court held that the measure was a violation of the right to family life. In 2004 nine terrorism suspects held in Belmarsh Prison were released on human rights ground.

The British model of Parliamentary Supremacy, though buried now, has always invited jurists’ disapproval. A. V. Dicey, the renowned jurist,  regretfully noted in the 8th edition of his book  Introduction to the Study of the Law of the Constitution (1915) that in real terms “only the Cabinet and the ruling political party  remained to be known as the Parliament”, and that  “behind Parliament lurks the Prime Minister and his ruling party”.  Jurists have also suggested that the English law failed to “develop due process in the juristic sense”.( John V. Orth, Due Process of Law: A Brief History Lawrence, KS: University Press of Kansas, 2003).

In the American model, in contrast to the `Fusion of Powers’ of the British model, the framers of the US Constitution adopted Aristotle’s doctrine of `mixed government’, French political philosopher Baron de Montesquieu ‘s theory of `Trias politica’ and `Etat de droi’(The Spirit of the Laws -1748), and the German doctrine of `Rechtsstaat’, all aimed at checking political absolutism. These juristic doctrines, politically translated are known as the concepts of `Separation of Powers’ and `Balance of Powers’. These  are based on the idea that no branch of government should be able to exert power over any other branch without due process of law; each branch of government should have a check on the powers of the other branches of government, thus creating a regulative balance among all branches of government. In the United States Constitution, Article 1 Section I gives the legislature (Congress) only those "legislative powers herein granted" and in Section 9 lists actions that are prohibited for Congress.  Article II creates an Executive branch headed by a directly and popularly elected President. Article III gives the Supreme Court the overriding powers of `Judicial Review’ of all legislative and executive powers.

In US also the powers of judiciary were challenged by early Presidents with the same arguments being forwarded by Mian Nawaz Shareef  i.e. sanctity of vote, marginalization of elected legislators, interference in policy making, politicization of judiciary etc. Efforts were also made to indirectly controlling the judiciary by filling the Supreme Court with politically partisan judges.  In 1801 outgoing President John Adams got Judiciary Act of 1801 passed in a hurry to modify the Judiciary Act of 1789, increasing the number of federal judges. These judges appointed by Adams were sarcastically called “Midnight Judges" like our own slang “Dogar Court”. But the court of legendary Chief Justice Marshall made one of the most important decisions in American judicial history in Marbury v. Madison case in 1803, by holding that the provisions of the Judiciary Act of 1789 under which the appointments had been made violated Article III of the Constitution. This case irrevocably and irreversibly established the Supreme Court’s power of judicial review of congress’s legislation.  

During the tumultuous period of American history starting in 1930 culminating in a bloody  civil war from 1861 to 1865, the issues of slavery, rights of  negroes, jurisdictions of States and Federation powers etc. arose in which the Supreme Court credibly proved itself as a `forum of dispute settlement’ and as a ‘forum of principle’ in a federal system. “ The judiciary  gave us confidence that judges can generally be expected to do a better job as compared with other political actors, particularly parliaments” (American Constitutional History-Larry Kramer).

In the whole American history, the executive could impeach only one Supreme Court judge namely Samuel Chase in 1805, but the Senate did not approve it. That is an example as to how the system of Checks and Balances operates in the American model of democracy.

Cooper v. Aaron Case (1958) made Americans proud of their support for judicial supremacy. In this case Negro children were denied admission in all-white public schools of Little Rock, by the Arkansas Governor and State legislature. The Supreme Court gave a land-mark decision  that “no state legislator or executive can war against the Constitution without violating his solemn oath to support it” and that “the Governor and the legislators were agents of the State, and they cannot assert their good faith as an excuse for sacrificing or yielding to the violence and disorder, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color”

The upshot of this discussion is that the English concept of `Supremacy of Parliament’ with the inherent `Fusion of Powers’ associated with it has not been able to become a universal model of democracy. The concept could not cross the boundaries of England and ultimately was buried there.  The consensual system adopted by the world democracies is the American model of `Distribution of Powers’ and ` Checks and Balances’. Even former British colonies did not adopt the English model.

In Canada any law can be struck down by a court when found to be in violation of the Canadian Charter of Rights and Freedoms. In India, there is a parliament akin to Pakistan, but its sovereignty is subject to the Constitution of India. The Judiciary can strike down any constitutional changes, not to speak of ordinary legislation, if those violated the “Basic structure of the Constitution”( Kesavananda Bharati v. State of Kerala-1973). In France a standing Constitutional Court is the guardian of the Constitution. The Australian Constitution recognizes an authoritative `Judicial Review’ binding on all institutions.

In Pakistan the powers of Judicial Review reflect the will of the people and the founding fathers of the nation. Quaide Azam and Liaqat Ali Khan continued the powers of judicial review provided under Article 223-A of the Government of India Act 1935. The same provisions were repeated and rather sharpened in  Article 170 of the 1956 Constitution by the assembly. Article   98 of the 1962 Constitution too continued the same powers. The consensus Constitution of 1973 was also decorated with the same extra ordinary powers in Article 199 to provide complete justice if “no other adequate remedy is provided by law……. for the enforcement of any of the Fundamental Rights”.

It should also be an interesting point to note that the UK colonial power, while leaving the Indian subcontinent did not extend its own brand of democracy and preferred to implement a written legal frame with a strong judicial oversight, called the Government of India Act 1935. The reason has been given by Churchill himself in his historic remarks, “Power will go to the hands of rascals, rogues, freebooters; all Indian leaders will be of low caliber & men of straw. They will have sweet tongues and silly hearts.”

Even jurists such as Jeremy Waldron or Richard Bellamy, opposed to Supremacy of Judiciary have conceded that in ‘pathological’ polities lacking democratic values and legitimacy, a strong but minimal judicial review was necessary.

Unfortunately, politicians in Pakistan, particularly during the last 15 years have worked overtime, to make the country a model of `pathological’ polity.  Way back in 1954 Thomas Dugdale the British Minister of Agriculture, resigned for forced acquisition of land of just one family by his department, but the ruling politicians in Pakistan are trying to halt investigations into Ashiana Housing Scheme scam, which has affected thousands of poor families. In 2002 Estelle Morris, the Minister of Education in UK resigned when A level exams were rigged, but in Pakistan even rigging of public service commission exams in Sind and Baluchistan has been smoothly digested by the politicians in power. In 1999 the British Minister of Trade Peter Mandelson, resigned for not  disclosing  a loan taken by a Cabinet colleague, but in Pakistan writing off of  bank loans is a an accepted political privilege.  In 1976, Harold Wilson  the Prime Minister resigned amid allegations of giving honors to some wealthy businessmen.

In 2001 Henry McLeish, First Minister of Scotland, resigned for pocketing the rent of his old official constituency office. In 2005, David McLetchie, leader of the Scottish Conservative and Unionist Party  was forced to resign after claiming the taxi expenses inappropriately. But our politicians get away with impunity even after receiving gifts of palatial houses from property tycoons. In 2010, David Laws Minister of Treasury resigned for claiming around £40,000 in expenses on a second home owned by his secret partner in violation of House of Commons rules. In Pakistan public money is used for making private roads and boundary walls of private residences of Prime Ministers and Chief Ministers as a right.  In 1979, Prime Minister James Callaghan resigned amid allegations of nepotism for appointing his son in law Peter Jay a journalist with little diplomatic experience and of holding a public office (like Generals, Bureaucrats) as British Ambassador to the U.S, but no accountability is held in Pakistan for appointing Hussein Haqqani and Ali Jehangir Siddiqui having absolutely no diplomatic experience as Ambassadors to US.

Let us be honest. Pakistan is not UK.

Are men like Mian Nawaz Shareef, Farhatullah Babur and Reza Rabbani better qualified as democrats and jurists than Quaide Azam, Liaqat Ali Khan, Z.A.Bhutto and Hussein Shaheed Suharwardy who constructed the basic structure of our constitution? Should  the consensual constitution of 1973 be tinkered with on personal whims? These are points to ponder

Indian Supreme Court’s Justice Hans Raj Khanna's wrote  in the landmark decision of Kesavananda Bharati v. State of Kerala that the  Parliament “ did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution”