Judges must not rewrite the Constitution in the name of ‘Interpretation’: Parliamentarians 

Nov 1, 2022

Staff Report

LAHORE

Speaking at the Asma Jahangir Conference 2022, senior parliamentarians called on apex court judges to respect the written word of the Constitution and to not overwrite or rewrite it on the pretext of interpretation or otherwise.

In a resolution adopted in the session on ‘Separation of Powers: The Executive, the Parliament, the Judiciary, the speakers stated that parliamentarians must recognise their independent legislative responsibilities and duty to hold the government responsible, and should not be content with being participants in a mere debating club.

The session was moderated by Salahuddin Ahmed, a former president of the Sindh High Court Bar Association.

Shahid Khaqan Abbasi, former prime minister of Pakistan delivered the keynote address in the session. Other distinguished speakers included Senator Syed Ali Zafar, former law minister and leader of Pakistan Tehreek-e-Insaaf, Dr Nafisa Shah, member of the National Assembly from Pakistan Peoples Party, and Senator Raza Rabbani, former chairman of the Senate. 

The house also held that elected civilian governments are the only legitimate representatives of the people and must not surrender their duty and power to frame policy and take administrative decisions to any unelected body or institution.

Senator Ali Zafar, former law minister, said that unfortunately, Pakistan’s concept of separation of powers is confused.

“The writers of the 1973 Consitution who were impressed by US concept of separation of powers, gave more powers of judicial review to courts,” he said.

The Supreme Court was given the additional powers of Article 184 (3) under which they could take suo motu action, he added. “The apex court was also given advisory jurisdiction in case of differences or disputes between provinces and federation.” Foremost, the Supreme Court has the power of interpreting the laws and the Consitution, Senator Ali Zafar said.

“Loss of reputation in the public eye has led to institutions encroaching upon the powers of other institutions,” he pointed out.

However, he emphasised that the power of interpretation has to be used positively and it cannot be used to encroach upon the field of the legislature.

Nafisa Shah, MNA, spoke about the three phases of Pakistan’s history. The first phase concluded with the tragic bifurcation of the country while the second phase comprised frequent abrogations of the 1973 Constitution, a period of political confrontation and military rules.

“Pakistan has been in the third phase of hybrid democracy since 2008,” she said. The period has led to the rule of judicial suo motu that followed appropriation of the powers of the executive, she added. Shah said the last government had impinged the powers of the legislature by issuing ordinances. She called on politicians to hold a dialogue and come together in the interest of civilian supremacy. 

Senator Raza Rabbani said since its creation Pakistan became a garrison and security state. The establishment has played around with eight different types of government in its history, he said.

“Now, we have a controlled democracy,” Rabbani said. 

He said it is a shame that people were still discussing the moorings of the State despite the passage of 75 years. “The civil and military bureaucracy has had a monopoly over power in the country,” he said.

Pakistan was currently witnessing a transition from monopoly to the dominance of the civil and military bureaucracy, Rabbani said.

The senior parliamentarian called on a dialogue between the institutions- the executive, judiciary, and legislature over the separation of powers.

Former prime minister Shahid Khaqan Abbasi said the discussion on the separation of powers in Pakistan remains an academic exercise because real power rested elsewhere.

“The Constitution defines areas of power but there is a vast grey area, leading to an inherent conflict,” he said.

Abbasi concluded that the judiciary had to look into the issue of judicial appointments lingering for over 20 years.