RECENT LY, there has been a flurry of legislation in Pakistan. The Constitution itself has undergone a major overhaul, after the passage of the 26th Amendment. The changes brought in are of such great benefit to the people that their contents had to be carefully guarded until their actualpassage,so thatno ordinary citizen could somehow jinx the reformation being imposed.

No one felt the need to run the proposed amendments by the people. After all, what do the people know? Should they even have opinions on such things? Why would the people think their opinion matters? There is a prefix used for civilians by those who run the show that was heard reverberating in the air above Islamabad as the 26th Amendment received assent louder even than the back-patting and chest-thumping of many politicians whose support no longer emanates from the people. It was a stark reminder, yet again, that providing services elsewhere remains more rewarding.

Before its passage, while the actual drafts remained concealed, there were the supposed democrats who would invoke the doctrine of political constitutionalism at every opportunity they got. Under this theory, the people`s elected representatives ought to have a final say as to what the Constitution states and means. It propagates the primacy of the legislature, and asserts that the judiciary`s review power over legislation should not exist. When the legislature says something, the judiciary, according to this theory, does not scrutinise the legislation on the touchstone of objective criteria. `Because the legislature said so` is both a sufficient answer and an adequate justification.

Particularly those lawyers and politicians whose parents could afford to send them to the UK for their degrees come back as sworn converts. In Pakistan`s context, though, there are things that can be said for this framework. The judiciary`s activism from justices Saqib Nisar`s and Iftikhar Chaudhry`s era is a case in point.

There have been elected prime ministers sent home unceremoniously. And then obviously, there is the stain of judicial murder of an elected prime minister that despite efforts cannot be washed away. The argument goes that the judici-ary, composed of unelected officials, is not responsive to the people, and that many within it can and in fact, do tend to go rogue.

The other theory is legal constitutionalism.

The decision in Marbury vs Madison, decided by the US supreme court in 1803, features prominently in this theory, where it has been held that the final arbiters and interpreters of the constitution are constitutional judges. There is a recognised review power, where the legislation can be struck down if found to be, among other things, in violation of fundamental rights.

Lawyers whose parents could afford to send them to the US for their law degrees are often avid proponents. The existence of a written constitution means that every institution, including the legislature, is subservient to the rules andprinciples enshrined in the constitution. Because these rules and principles are to be interpreted and applied by the judiciary, the judiciary, in turn, gets an opportunity to play an instrumental role in deciding society`s big issues, even if political. Provisions of the constitution can be read down as well, which is important in Pakistan`s context, because unlike the constitution in the US, the Constitution here can be much more easily amended.

There are thingsthatcanbe saidforlegalconstitutionalism in Pakistan. Elections generally even other than the ones held on Feb 8, 2024 are subjected to massive rigging. Arguably then, parliament all too often does not comprise people`s actual representatives. Often elected in Pakistan are self-interested capitalists for whom it is all about development funds and self-serving legislation. In such circumstances, the judiciary must be on the lookout for the people`s inter-est. Moreover, those presumed elected may have no incentive in protecting the rights of the minority and disfavoured, for which, again, the judges have to step in, invoking the fundamental rights enshrined in the Constitution.

But this debate regarding political or legal constitutionalism is a mere façade in Pakistan a distraction of sorts. The political history of Pakistan has not really been about which of the two institutions has primacy under the Constitution, or which institution gets to have the final say. When the judiciary allowed the elimination of an elected prime minister, it did so not because the judges themselves needed to assert the judiciary`s superiority, but at the behest of someone else. When the judiciary mocked and knocked down politicians, it did so, not to wave the flag of Marbury vs Madison, but because it had been asked to comply.

Similarly, when the resistance has come from the judiciary, it is parliament, the purported representatives of the people, which behind closed doors at night, envisioned ways to browbeat the judges into submission, responding arguably to someone else`s call. The purported parliamentarians seemingly worked themselves into a frenzy, remembering past horrors, the judicial murder, and the debasement of elected prime ministers, hatching schemes, ever watchful so that the prying public may not even get a whiff of the good stuff they were cooking.

In the process, many parliamentarians willingly, voluntarily, and a bit too zealously extended a hand to the same forces, at whose behest the judiciary was seen to have committed the very errors, for which it now needed to be penalised. They labelled this as `parliamentary supremacy`.

With the 26th Amendment, parliament may or may not have asserted itself as supreme. The people, however, were snubbed yet again; an insult to their intelligence was packaged as something meant to convey that all had been done for their own good. • The writer is a lawyer based in Islamabad. The views expressed are his own and do not reflect those of his firm.

awahid @umich.edu