Thursday, July 9, 2015

Another approach to Pakistan's constitutional dilemma

A variety of arguments have been made in the pending challenges to the 21st Amendment to the Constitution of Pakistan, chief among them that the amendment violates the basic structure of the Constitution. There is support for such an argument, notably in Indian jurisprudence. But there is another approach that arguably involves less of a constitutional leap. This is that the 21st Amendment has only a two-year life span. A "sell by" date -- particularly one of so short a duration -- is inconsistent with the very notion of a fundamental law. Statutes have sunset provisions; constitutional amendments don't. In other words, what Parliament passed was a mere garden-variety statute masquerading as a constitutional amendment.

Ah, but the provision of the original United States Constitution that forbade congressional action against the slave trade also had an expiration date (1808). That provision, however, is distinguishable from Pakistan's 21st Amendment on three grounds. First, it was part of the original grand bargain by which the sovereign states agreed to subject themselves to the new Constitution; second, rather than granting the new government a power for a defined period, it withheld one; and third, it had a 20-year term -- a far cry from the mere two-year duration of a single Congress.

Admittedly, if this masquerade-amendment argument were embraced by the court, it would leave the door open to Parliament simply to enact the same measure all over again, but this time without an expiration date. There being no evidence that the politics of military courts with jurisdiction over civilians have materially changed, that could well happen even if Parliament next time around were to conduct a serious debate rather than permit itself to be stampeded into precipitous action. The court would have merely kicked the basic structure can down the road, and would need to confront it once again, this time without an easy out.

Still, might the more limited, less invasive rationale proposed here be a graceful and broadly acceptable way out of Pakistan's current constitutional dilemma? Comments invited. (Real names only, please.)

No comments:

Post a Comment

Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).