Noah Feldman, in his immensely readable The Fall and Rise of the Islamic State, brings out the tension that exists in Islamic countries between a written constitution and the unwritten abstract legal principles of Islam. The question whether the injunctions of Islam as interpreted by the clergy/Islamic jurists take precedence over a written constitution in Islamic States is one that has been and will continue to be debated for a considerable time. This directly brings into focus the status of the members of Parliament in an Islamic Republic such as ours who although are representatives of the people but at the same time are seen to be exercising legislative authority as a Sacred trust.
We might often talk about the sovereignty of Parliament but this does not negate the tension brought out by the text of the Constitution itself which recognizes the Sovereignty of Allah over the entire universe. And once a written constitution recognizes the Almighty as sovereign then those vested with the authority (by law or self-assumed) to interpret religious injunctions will always be fighting for supremacy with the elected members of a Parliament.
Not that it needed any particular reminders, but our Parliament might look back at the year 2010 where the notion of parliamentary sovereignty came under an increasing amount of strain. It all began well as the 18th Amendment to the Constitution was debated and passed amid much fanfare. Then one petition after another challenged the 18th Amendment and in particular the new mechanism for appointing judges of the superior courts. The basic structure doctrine was argued as a touchstone to strike down, for the first time in this countrys history, an amendment to the Constitution. That did not happen, although fingers remain crossed. The Supreme Court sent back the amendment to Parliament in a move that can, inter alia, be described as part of a dialogue between various institutions of the State and the sphere of their respective powers.
The threat of a constitutional amendment being struck down still persists though. Yes, it is unlikely but the Islamic Republic is not known to be a place of certainties. Judicial review is, by its very nature, counter-majoritarian and it is a process the results of which may not always please a Parliament. As if the basic structure doctrine would not have made the Parliament feel helpless enough, the role of the Federal Shariat Court (FSC) through a recent ruling setting aside certain provisions of the Protection of Women Act, 2006 (the Act of 2006) brings another rude reminder of the limits of the notion of Parliamentary sovereignty in this country.
The creation of the FSC in 1980 was the culmination of a process that had begun through the Shariat Benches of Superior Courts Order 1978. Once the creation of the FSC was provided constitutional cover in Chapter 3-A of the Constitution, a most powerful institution was created. Zia, of course, did not want the FSC to meddle with his business from time to time so therefore the Constitution and laws relating to the procedures of courts or tribunals were excluded from the purview of the FSC. The FSC has over the years been seen as an institution that has not quite had the disturbing influence on the jurisprudence of this country as initially feared. This does not mean that we should be ignorant of the fact that it has passed judgments of far-reaching importance on matters such as land-reforms, pre-emption etc. In Muhammad Ismail Qureshi v. Pakistan (PLD 1991 FSC 10) the FSC held that death penalty was the sole punishment that could be awarded for blasphemy. Regardless of what the representatives of people might enact on a particular subject, 8 gentlemen in a cozy little building on Constitution Avenue can decide whether or not it a law or any of its provisions are repugnant to the injunctions of Islam.
Recently a brave female legislator took steps to propose some much needed amendments to the draconian law on blasphemy. Before Parliament could accept or reject this legislation, the Lahore High Court was moved through a petition to stop Parliament from even considering any amendments to the present law. The decision on the matter is still pending and one can only hope that legal principles rather than the populist frenzy will dictate the outcome. There is no reason to believe otherwise.
However, the argument will bring back into focus the decision of the FSC in the case of M. Ismail Qureshi. Will the Courts allow Parliament to move an amendment Bill that can potentially override a judgment of the FSC? What steps, if any, will Parliament take to re-assert its authority as against the FSC? In the meanwhile, a Happy New Year and here is a scary thought: each time those 8 gentlemen make up their minds about what is repugnant to the injunctions of Islam, our representatives and our demands will receive a slap in the face. Welcome to the Islamic Republic of Pakistan.
The writer is a Barrister of Lincolns Inn and practices in Lahore. He has a special interest in anti-trust/competition law. He can be reached at [email protected]
