Dr. Ikramul Haq
Legislature is sovereign but the supremacy of Constitution is above everything—legislators in fact exercise delegated powers given by the people within the framework of the Constitution—Constitutionalism: The only remedy for undemocratic Pakistan?
The recent tug of war in Supreme Court related to constitution of benches by the Chief Justice of Pakistan and selection of cases of public importance (sic) has bewildered and baffled almost every citizen of Pakistan. Common people could not expect such a vivid division among the men in robes. Such a divide, many say, was least expected from judges who deviated their path from those who once endorsed late General Pervez Musharraf’s rule, going to the extent of giving him even the right to amend the Constitution of Islamic Republic of Pakistan [“the Constitution”].
Response by the Parliament (National Assembly and Senate) of passing the law— the Supreme Court (Practice and Procedure) Act, 2023—in utter haste has also further polarized the nation and even legal fraternity on the issue: what is sovereign and what is supreme in Pakistan? It is well established by now that Parliament is sovereign and Constitution is supreme. The legislature, in fact, exercises delegated powers given by people’s mandate within the framework of the Constitution. Supreme law of the land should not be allowed to be misinterpreted, distorted or mutilated by either the courts or elected representatives or anyone else.
Judiciary is custodian of the Constitution and must never condone its violation, subversion or mutilation, at any cost by any dictator, the Parliament and the executive. The same principle is equally applicable to Supreme Court—all institutions must work within the four corners of supreme law of the land.
Parliament cannot make any law that is against the fundamental rights guaranteed in the Constitution or violating any of its provisions. In case it enacts any law that is ultra vires of the Constitution, any High Court or Supreme Court can strike it down under the power given by the supreme law of the land. The Parliament can amend the Constitution by two third majority and even nullify any judgement of Supreme Court by removing the causes underlying the same as held in Fecto Belarus Tractor Ltd. v. Government of Pakistan (PLD 2005 SC 605).
The Constitution envisages trichotomy of powers between the executive, legislative and judicial organs of the State—these cannot intrude into each other’s territory. This principle with all its import and scope is discussed in great detail in Mustafa Impex, Karachi and others v The Government of Pakistan [(2016)114 TAX 241 (S.C.Pak.)].
Parliament has every right to enact laws but not by violating or offending fundamental rights of the citizens or violating any provisions of the Constitution. Way back in 1992, the Parliament passed Protection of Economic Reforms Act, 1992 that gave a free hand to tax cheats and money launderers to get their billions whitened. Instead of protecting the country from tax evaders and corrupt persons, parliamentarians of all ruling political parties have been protecting them and their assets, held in the names of their dependents or benami [name-lenders] and never bothered to withdraw/alter this law. Rather all political parties, when in power, have been enacting laws containing unprecedented, though unconstitutional, tax amnesties and money-whitening schemes to benefit the rich and mighty, even public officeholders.
Legislators have never shown interest to enact laws for universal social security and pension for all citizens and income support to millions living below poverty line. There is no will on the part of Parliament to enact laws for confiscating illegal assets stashed at home and abroad.
It is an established principle that conflict in the constitutional provisions should not be assumed and if apparently there seems to be any, it has to be interpreted in a harmonious manner so that both provisions may co-exist. One provision of the Constitution cannot be struck down being in conflict with its other provisions. Strangely, even many seasoned lawyers misinterpret and/or criticise judgements of the Supreme Court ignoring this established doctrine of harmonious interpretation.
Besides division in judiciary, the main problem within all state institutions is lack of reforms and within our political parties, absence of democratic values. Individuals, especially with money power, dominate these parties. In all established democracies, political parties in power or opposition protect the rights of common people. Our legislators help tax evaders and the corrupt to avoid proper scrutiny. For example, in the repealed election laws, there were many mandatory provisions for financial declarations on oath for a candidate, but these were deleted in the Elections Act 2017 by all the legislators including those belonging to Tehreek-i-Insaf.
The Indian Supreme Court in its landmark judgement of February 16, 2018 inLok Prahari v Union of Indiabarred any convicted person to vote or participate in polls or even continue in office either as a legislator or parliamentarian. It also ordered necessary amendments in Form 26 of Rule 4A of the Conduct of Elections Rules of 1961 requiring candidates to declare on affidavit theirs’ as well as their associates’ sources of income. The critics of judgements of Supreme Court of disqualifying the elected persons must read the order of Indian Supreme Court. It particularly says:
“This Court in Union of India v. Association for Democratic Reforms & Another, (2002) 5 SCC 294, opined that ‘voter speaks out or expresses by casting vote’ and such a speech is part of the fundamental right under Article 19(1)(a)… Subsequent to the said judgment, Parliament chose to amend the Representation of People’s Act of 1951 by introducing Section 33A. Parliament provided for the disclosure of certain limited information regarding criminal antecedents of the candidate… at an election, but not of all the information as directed by this Court of the abovementioned judgment (regarding educational qualifications, liabilities towards any public financial institutions and assets of the candidates and their dependents)…This Court [in PUCL v. UOI, (2003) 4 SCC 399] held Section 33B (of the Act of 1951) to be beyond the legislative competence of the Parliament. This Court recorded that Section 33A fails to ensure complete compliance with the directions issued by this Court in ADR case”.
The High Courts and Supreme Court have mandate under the Constitution to interpret statutes enacted by the Parliament, whereas enforcing the people’s will and countering any form of authoritarianism is always a political question that cannot be resolved in courts. Since civil and military leadership has failed in the past on this account, the entire society is facing devastating effects of perpetual undemocratic rule—military and civilian alike. The main cause of our present day judicial, security, socio-political and economic chaos is ineffectual leadership, existence of inefficient, corrupt and repressive institutions, which are anti-people, thus least concerned with the welfare of the common citizens.
In a democratic set-up, the electoral process ensures dominance of the people. In Pakistan, forces of status quo want to determine it through the barrel of gun and their lackeys in politics or cronies in state institutions. The usurpers in the past have portrayed them as saviours of the nation, whereas the reality is that under their rules, the country’s eastern arm broke away. Due to perpetual bad governance, masses have suffered on all accounts: lost lives in suicide bombings, economic hardships, deprived of basic needs and sufficient food what to talk of fundamental rights of access to free health and educational facilities. The needs of masses cannot be fulfilled unless there is a people’s rule, which is not possible without dispensation of justice—the main pillar of constitutional democracy. The dispensation of socio-economic justice is only possible under a true democratic leadership and culture of tolerance.
Unfortunately, the attitude of our so-called civilian rulers since 2008 has not been much different from military dictators. Every dictator—military or civilian—desires to perpetuate his/her rule proclaiming himself/herself as messiah, and in this process destroys the very fabric of national cohesion. This is what is exactly happening now in the present government-Supreme Court impasse.
The constitution of a country is a living and vibrant document that determines the future direction of a nation, provided there is respect for the document and for rule of law. It is high time that people in next elections, whenever these take place, elect such persons that are capable of working for the supremacy of Constitution, rule of law and public welfare.
The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS), member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE)