OVER A COFFEE : Who is supreme in Pakistan? — Dr Haider Shah
The near proverbial statement of De Lolme best captures this idea that “Parliament can do everything but make a woman a man, and a man a woman”
The standoff between the present government and the Supreme Court continues despite some goodwill gestures by the latter. Both print and electronic media are teeming with constitutional debates, which often boil down to one fundamental question, i.e. who is supreme in Pakistan? As a firm believer in democracy and the rule of law, I find this question too naïve and painful because the public arena is not a wrestling bout where the supremacy belt is up for grabs.
In an earlier piece, I had dilated upon the notion of the ‘sovereignty of parliament’ (SOP) where it was contended that SOP is a purely British constitutional dogma. Some early commentators believed that the British parliament enjoyed complete sovereignty, as there was no written constitution to fetter its supremacy. The near proverbial statement of De Lolme best captures this idea that “Parliament can do everything but make a woman a man, and a man a woman.” The unchecked power of the British parliament can be seen best by referring to the Septennial Act, 1715, with which the British parliament prolonged its duration from three to seven years. What happens if parliament passes a law making itself a perpetual parliament? In order to ward off such undesirable possibilities, other countries have opted for the route of constitution-based political systems where the mother parliament after giving birth to the constitution abdicates its crown in favour of the new sovereign. Even the method of amendment of the constitution is provided by the constitution itself, and parliament cannot amend its own creation save in accordance with the dictates of the new sovereign.
The Attorney General, Irfan Qadir, recently made a shocking assertion that parliament could dissolve the courts. The learned attorney came close to what Leslie had once said a long time ago: “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal.” However, the author had qualified his statement with an additional remark, “…but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.” The author wanted to illustrate the point that even at the notional level there are two natural limitations on the complete SOP. First is external, that no parliament can afford making laws that run counter to popular opinion. Second is internal, that all lawmakers are products of their environment and hence think and act in a predictable way. If the natural limitations are extended to the realm of reality on the ground, we see that even the British parliament has traded off some of its sovereignty to readjust its role as a member of the European Union in particular and a globalised world in general.
Dicey also refers to the distinction between legal and political sovereignty. While law-making sovereignty resides completely in the British parliament, political sovereignty remains with the electors. Parliament represents this form of sovereignty as a trustee of the electors. Dicey contrasts the US, Swiss and British constitutions in terms of constitutional rigidity as a check on parliamentary sovereignty. The US constitution is quite rigid and hence any amendment is very difficult. The Swiss constitution is relatively less rigid; however, every amendment needs to be referred to the electors. There is no rigidity in the case of the British constitution where a simple act of parliament can change any constitutional practice. The Pakistani constitution comes close to the Swiss one in terms of rigidity; however, it does not make it mandatory to refer a constitutional amendment to the electors. The constitution in its opening preamble (made a substantive part of the constitution vide Article 2A) declares that sovereignty is exercised by parliament under trusteeship as it originally belongs to Almighty Allah. Personally, I do not like the divinity-laced assertions of the Objectives Resolution but as a firm believer in the rule of law, I have no other option but to treat every word of the constitution as sacrosanct. The sitting parliament did not amend these provisions of the constitution while carrying out a complete review of the constitution, therefore we have no other option but to consider every word of the constitution binding upon all of us, our personal inclinations notwithstanding. If the trusteeship duty of parliament is considered together with the amendment procedure provided under Article 239, one can argue that if a political party wants to bring out an amendment that has the potential of altering the separation of powers and checks and balances scheme of the constitution, then it must make it a part of its election manifesto. This way the electors will have a fair chance of affixing their sign of approval to the proposed amendment and hence parliament will use its legal sovereignty with a clear nod from the political sovereign as well.
In addition to the notion of parliamentary supremacy, another theme that is often used by the pro-government lobby is that it is not writing the letter to the Swiss authorities as it cannot do any unconstitutional act. Last week, we heard the prime minister reading out a prepared speech in the National Defence College in which he dismissed the Balochistan situation as the handiwork of external elements. The constitutional obligations under the fundamental rights Articles, i.e. 9 and 10, did not get his attention, while the missing persons’ case is being heard in the Supreme Court.
Reiterating my conclusion of the last piece, I once again suggest that the best option for coming out of the turbulent waters is to go back to the people who are the real source of all forms of supremacy.
The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at firstname.lastname@example.org