Neighbourhood Court Watch

I just wanted to draw the attention of our readers to some fascinating constitutional developments in our neighborhood.

1. A month ago the Sri Lankan Parliament ratified the 18th Amendment to their Constitution which ended Presidential term limits, abolished the Constitutional Council giving the President direct say about appointments to the judiciary, the Human Rights Commission, the Public Service Commission, the corruption regulatory bodies and the election commission, and gave the President power to attend and address parliament. As a semi-presidential unitary government elected through a combination of direct and proportional representation, the Sri Lankan constitution is unique to South Asia.

Sri Lanka’s moves towards authoritarian government offer an interesting insight into debates over constitutional design. Harvard professor Cindy Skach has been highlighting the popularity of semi presidential forms of government in the third wave of democratization in the 1990s.This constitutional type combines a popularly elected head of state with a head of government who is responsible to a popularly elected legislature.

In her Constitutional Origins of Dictatorship and Democracy, Skach cautions against the hasty adoption of semi-presidential models due to the challenges it poses to democracy, constitutionalism and the protection of fundamental rights.

2. The Pakistani Supreme Court seems to continue to boldly go where no judiciary has gone before. As Ejaz Haider notes in the Indian Express , the Chief Justice hearing a rumor that the embattled Zardari government might attempt to remove him called a full meeting of the Supreme Court. All 17 judges issued a press communique stating that any attempt to do so would lead to the Supreme Court moving suo moto against the government under Article 6 of the Constitution i.e. charging them with high treason. Despite government denials of any such plans, the Court summoned the Attorney General and demanded a written assurance from the government.

In an unprecedented show of political unity, Prime Minister Gilani backed by the Chief Ministers of Sindh, Baluchistan and Khyber Paktunva, a senior Minister from Punjab, and the executive heads of Pakistan Administered Kashmir and Gilgit-Baltistan stated that the government respected the independence of the judiciary but the judiciary too must believe the Prime Minister when he says something. He refused to give a statement in writing arguing that the word of the Prime Minister was enough.

This is the first time that the entire political class of Pakistan has lined up against the Supreme Court (though Shahbaz Sharif, the Muslim League Chief Minister of Punjab send a deputy instead of coming himself). So far, the judiciary has always found some allies in the political class. It would be interesting to see how the Pakistani judiciary executive conflict shapes from now on.

3. On the 5th of October, the Supreme Court of Bangladesh reasserted their authority over the constitution by clarifying their decision earlier this year that had struck down the Fifth Amendment to the Constitution.

Holding that secularism was part of the basic structure of the Constitution the court ruled that “in a secular state, everybody has religious freedom, and therefore no man, woman or child can be forced to wear religious attires like burqa, cap and dhoti”. The court had taken suo moto action after coming across a newspaper report about a woman’s college issuing a directive prohibition women from coming onto campus without a burqa. The court also held that similiarly, no one can be prohibited from wearing a burqa if they chose too.

4. The Bangladesh Supreme Court’s declaration of the Fifth and Seventh Amendments voided also opened up an interesting procedural question. Did the Court’s declaration of invalidity automatically amend the constitution or does the parliament have to correct the Constitution through a further process of amendment. The law minister seems to have resolved the debate stating that the government would just reprint the Constitution without the amendments, thus in effect restoring several older provisions.

5. Bhutan’s fascinating constitutional trajectory continues. Earlier this month, the government issued a ban on Buddhist and Hindu clergy from voting in the elections to keep religion and state separated. Mahayana Buddhism is officially the state religion of Bhutan and the constitution provides for a dual system of administration with the religious branch headed by a chief abbot and an administrative branch headed by the King. The King is required to be Buddhist and all parliamentary sessions concluded by Buddhist prayers. Clergy were allowed to vote in the first elections in 2007.

Interestingly, in ‘secular’ India the Buddhist clergy have a separate right of representation. An amendment to the Representation of People’s Act in 1949 provided that one seat out of the 32 seats in the Assembly of Sikkim will be reserved for a representative of the Buddhist sangha who will be elected by a statewide constituency of Buddhist monks. To the best of my knowledge, this is one of the few examples of separate electorates in independent India. Buddhist nuns were allowed to vote as a part of this constituency for the first time in 2009

6. Meanwhile in Nepal, there has been an attempt to involve the Supreme Court in the deadlock in the interim parliament/constituent assembly. Over the last few months, the parliament has attempted eight times to elect a leader of the house and failed. The CA regulations requires a winning candidate to get 300 votes from a 599 member assembly, however it also permits MP’s to remain neutral and abstain. A group of lawyers have recently petitioned the Supreme Court of Nepal asking that the ‘neutrality provision’ be declared unconstitutional. The Court is currently hearing the matter.

7. Finally, the Supreme Court of Maldives finds itself in midst of a deepening crisis between the President Nasheed and an opposition dominated parliament. The Constitution provides for a Presidential cabinet which is endorsed by parliament and ministers who can be summoned to appear before parliamentary subcommittees.

President Naheed had shocked the Maldivian system when he defeated President Gayoom in 2008. Gayoom had governed Maldives for thirty years. The parliament (Majlis) continues to be dominated by members of Gayoom’s party. The opposition was combative and Naheed’s minister’s complained that they were following a ‘scorched earth’ policy to obstruct government. In July this year, the entire 13 member cabinet resigned protesting the behaviour of opposition MPs who they said were “hijacking” the powers of the executive and making it impossible for the cabinet Ministers to discharge their constitutional duties and deliver the government’s election manifesto. In July, Nasheed reappointed the cabinet.

However, the opposition dominated Majlis has been demanding that constitutional procedure requires them to be re-endorsed by them. Nasheed refuses to accept this process arguing that Parliamentary endorsement was intended to be ceremonial and submitting to an American style endorsement process is tantamount to permitting 13 no confidence motions against the government.

The Attorney General has moved the Supreme Court for writ to declare as null and void.

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