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Parliamentary supremacy in Pakistan
by Saiyan0312
Introduction
Pakistan as a country has seen repeated political upheavals with each decade bringing claims of current system not working and a new system to be introduced. Often blanket terms like Democracy and Military dictatorships were used for this purpose with the people looking for a messiah to their problems, running from one end to the other. The 1973 constitution provides for a parliamentary form of government.
Question of supremacy is perhaps the most asked question in Pakistan with institutions claiming supremacy. The common concept in Pakistan is that Parliament is supreme since it makes the laws and represents the people thus it is supreme and they provide explanation that since democracy is rule of the people then automatically the elected representatives are supreme. This very simple point of view and definition devoid of complexity of state affairs is the common thinking amongst the people, the analysts and of course the parliamentarians.
In Pakistan law is not a basic subject at all. A student in school will learn subjects on Islamic studies, math, social studies, history, languages, Pakistan study, physics, chemistry, biology, computer studies which will contain the basics allowing understanding on fields, yet he will learn nothing on law. A student in school is oblivious to the complexity of laws and legal philosophy even the laws that govern Pakistan. Ironic that one learns the laws that run the universe but not the laws that run their country, province, and district. A place they will, most likely spend their lives at.
Hearing misinformation from unqualified lawyers and family friends and parents who themselves have little experience when it comes to dissecting the complexity of law.
However this is why it is imperative that the legal fraternity takes utmost care to promote legal explanation which are not victim to bias nor misinformation and for the state to promote legal understanding amongst young minds so that each citizen of Pakistan is aware of the laws that run the state as well as the rights that are given to them since in the eyes of law a person is considered aware of his rights and the laws that run the state.
Recent times
Pakistan has seen a run of uninterrupted democratic rule since 2008 which has brought with it questions of politics and affairs relating to statecraft and deeper understanding and evolution of the constitution of Pakistan. Perhaps the most common and loudest question is whether the parliament is supreme in Pakistan. The constitution has been defined and explained towards this point with important case laws coming forth. Various opinions for and against have come to stage with of course the emotional cloak. It is often said seeing is believing and for this we will open the constitution of Pakistan to understand where supremacy lie and whether the supremacy is an illusion finding base on political slogans and emotional charges.
However before we enter into the world of Laws, we must understand the following.
Constitution
A constitution are the set of rules and precedent which highlight the governing of a state.
The essence of constitution is that it defines and regulates the powers of the government by imposing limitations on the exercise of executive authority and where the legislator is not supreme, on the power of the legislature itself by prohibiting it from making certain laws.
It is the supreme law of the land, the fundamental law from which all public authorities derive their powers, all laws their validity and all subjects their rights.
The constitution of 1973
The war of 1971 and the separation of East Pakistan shook Pakistan to the core. The country lay broken and disheartened and demoralized. On 20th of December Zulfiqar Bhutto received placed martial law and become both the president and the martial law administrator. With these powers he set out to realign the state affairs. One of them was for the creation of a new constitution. The constitution of 1962 which was suspended in 1969 was seen as a dictator’s law thus was abrogated in 1972. On 14th April he convened the national assembly and on 21st April he rescinded the martial law and brought forward the plans for a new constitution. On 17th April Bhutto called for the constitutional convention which was presence of every political party of every ideology. On 20th October 1972 all parties received a draft which was signed by the national assembly on 2 February 1973. It was ratified on 19th April 1973 and came into full effect on 14th August 1973. 1
With that Pakistan got its first Constitution. Its main points are the following
1. Islamic provisions
2. Fundamental rights
3. Bi-cameral parliament meaning there is a national assembly as lower house and senate as upper house. The word Parliament takes in the meaning of both
4. Parliamentary form of Government
5. Preamble
6. Objectives resolution and 1956 constitution used as source of law
7. Country formed as a Federation of Provinces
These are the basics of the 1973 constitution.
CASE LAWS
When a case is decided, its decision is not one off. It creates a precedent that all subsequent courts must follow. The judgment in that case becomes that precedent and these precedents themselves form laws. According to article 189 of the constitution of Pakistan a “Any decision by the supreme court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding upon all other courts of Pakistan”. An example would be the co shearer law which is “Each co shearer is considered an owner of each and every inch of an un-partitioned property”. This will law will not be found in acts but is based upon case laws. The Famous case law of 1989 SCMR 130. Lawyers use precedents and case laws to base a bulk of their arguments on and we will discuss supremacy on constitutional case laws especially recent ones.
The words of law
If one reads a law then will see a complicated sentence showcasing as much detail and explanation as it can. The reason for this is that each word in law holds importance and is interpreted towards its accordance. Even the word “Shall” has interpretations and case laws so when reading laws, each word must be considered with importance.
Executive
Executive authority is the president, prime minister and the cabinet whose job is to run the state affairs.
And with the above let us return back to the topic at hand about supremacy of Parliament.
Supremacy of parliament
The parliament (composed of the senate and the national assembly which is also called the majlis e shoora) is considered as the supreme institution of the state. This concept often stems from the fact that since the parliament is the only organ of the state which is directly elected by the people and has the power to make laws and according to article 238 and 239 of the constitution, to also amend the constitution, thus the parliament is supreme. Supporters of this notion cite their supra-powers and indeed a massive majority does believe that parliament has utter supremacy.
Definition of “supreme power”
Black’s Law Dictionary defines supreme power as “Highest authority in a state, all other powers in it being inferior”.
Now this holds two elements.
1. The Authority is the highest
2. All other powers in it are inferior
This means that to have supremacy the institution or organ or authority must not only be the highest but it must also not have any equal and all others must be inferior to that high authority. This means that supremacy is one. There are no levels of supremacy nor multi supremes showing supremacy together.
Arguments for supremacy of Parliament
As the debate for supremacy reaches newer heights, the arguments and interpretations gain greater tract. The argument for supremacy is based on the following grounds.
1. Democracy
Abraham Lincoln describes democracy is the government of the people, for the people and by the people. Many argue that in a democratic setup the power is in the hands of the people and the people who elect their representatives among themselves thus hold that power and that power and responsibility makes the elected supreme. In a country like Pakistan, which has been marred in a battle between democratic and undemocratic institutions, such discussion often takes a sensitive and emotional aspect with the cry that any action against the elected representatives is an action to curtail the will of the people. This thought process gains greater ground as politicians use emotional slogans to showcase that the will of the people is so supreme that even the laws bend to it.
2. Constitutional provisions
The constitutional provision article 238 and 239 allow the parliament to amend the constitution. The articles are as such
Article 238; “Subject to this part, the constitution may be amended by the act of majlis e shoora”
Article 239.5; “No amendment of the constitution shall be called in question in any court on any ground whatsoever”
Article 239.6; “For the removal of doubt, it is hereby declared that there is no limitations whatever on the power of the majlis e shoora to amend any provisions of the constitution”
Many after reading this would say that this is it. This ends the entire argument and one could not blame them for thinking so. The articles were not part of the original constitution. They are a product of presidential order 14 of 1985 passed on 2nd march of 1985. This makes the articles controversial since at that general zia ul haq was running the country under a martial law and there was no parliamentary structure at that time. This addition was done under his order and thus is viewed by many legal experts as dictatorial law. It is indeed ironic that the very parliamentarians which abuse zia ul haq and his rule fight tooth to nail to justify and protect this amendment.
However the articles are in full force and the parliament has made various amendments in the constitution utilizing these articles.
3. Case Laws
Many legal experts have discussed these articles and there are case laws present which have declared parliamentary supremacy relating to amendments.
In the case of Ghulam Mustafa khan vs Pakistan PLD 1988 Lah. 49 it was observed:-
The words “subject to this part” appearing in article 238 clearly signify that there are no limitation whatever on the power of parliament to amend any of the provisions of the constitution if the procedure provided in article 239 in fully complied with. Since there is no other article in part XI of the constitution except the present article and article 239, the clear and inescapable conclusion that can be legitimately drawn from the words “subject to this part” is that there are no restraints on the parliament, for amending the constitution other than what is contained in article 239. This view is fully supported by clause (6) of article 239 which itself declares that there is no limitation whatever on the power of the parliament to amend any provision of the constitution. The parliament thus is vested with the power of constituent assembly to make or unmake constitution by amending it through the machinery provided in the constitution.
As well as in Muhammad khan bachal vs Pakistan PLD 1987 Kar. 296 the following was observed:-
Parliament is supreme authority to make any amendment in any part of the constitution to modify it short of its complete abrogation of fundamentals of the constitution. There is no provision in the constitution which puts restraints on its powers in this behalf.
4. Other democracies
Many cite examples of other democracies especially the United Kingdom one where parliament is considered supreme. In recent times the Prime Minister khaqan abbasi also made the same statement. This is a common argument as Pakistan’s democratic road has been a rocky one and the argument presented often takes the shape that in perfect democracies the legislative body is supreme.
5. Constitution itself says the parliament is supreme
This is a very common argument and is often mentioned by the laymen. The claim and argument is very simple however the constitution has nowhere mentioned this supremacy so explicitly.
All arguments for supremacy of parliament circle around the above and a person listening would say that these are sound arguments with solid bases both on philosophical as well as legal grounds. So then why the controversy? That is because of the counter arguments.
Arguments against supremacy of parliament.
There are many legal minds especially amongst the judiciary who have argued that the parliament is not supreme. They have presented their view points and counter arguments. To understand their argument we must first see the preamble of the constitution of 1973 as well as the objectives resolution.
Preamble
A preamble contains the principles used as guidelines by its framers.
Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
And whereas it is the will of the people of Pakistan to establish an order:-
Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;
Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
Therein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;
Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
Wherein the independence of the judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity:
Now, therefore, we, the people of Pakistan,
Cognisant of our responsibility before Almighty Allah and men;
Cognisant of the sacrifices made by the people in the cause of Pakistan;
Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice;
Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;
Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;
Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.
The objectives resolution.
The objectives resolution was adopted by the constituent assembly on 12th march 1949 and became part of the constitution of 1973 through presidential order no 14 of 2nd march 1985 as section 2A stating “The principles and provisions set out in the objectives resolution reproduced in the Annex are hereby made substantive part of the constitution an shall have effect accordingly”.
The resolution states the following
1. Sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the state of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust.[2]
2. This Constituent Assembly representing the people of Pakistan resolves to frame a constitution for the sovereign independent state of Pakistan.
3. The state shall exercise its powers and authority through the chosen representatives of the people.
4. The principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed.
5. The Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.
6. Adequate provision shall be made for the minorities to freely progress and practice their religions and develop their cultures.
7. Pakistan shall be a federation and its constituent units will be autonomous.
8. Fundamental rights shall be guaranteed. They include equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality.
9. Adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes.
10. The independence of the judiciary shall be fully secured.
11. The integrity of the territories of the federation, its independence and all its rights, including its sovereign rights on land, sea and air shall be safeguarded.
12. The people of Pakistan may prosper and attain their rightful and honored place among the nations of the world and make their full contribution towards international peace and progress and happiness of humanity.
The preamble and the objectives resolution set the guidelines which the law makers must follow. Both highlight that the Supreme Being is God alone and all supremacy lies with him and the law makers must exercise their rights within the limitations prescribed by him. This means that the law makers cannot pass any laws which are contrary to Islam or its values and we will discuss these limitations.
Limitations on parliament.
The constitution has placed several limitations on the parliament when passing laws or making amendments. The following limitations are highlighted in the constitution and its interpretation.
1. Restriction to pass laws contrary to Islam
The constitution has made it that the parliament cannot pass laws which are against the injunctions or spirits of Islam. This is perhaps best explained in Article 227; “all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the holy Quran and sunnah, in this part referred to as the injunctions of Islam, and no law shall be enacted which is repugnant to such injunction”.
With the above we can understand that the parliament has been placed under a limitation which states that it cannot pass unislamic laws. Such law will be considered repugnant.
The word repugnant is the limitation and this word was explained in the case law PLD 2010 FSC 1 which states that “meaning and scope of the terms “repugnant” is not limited only to the actual state of being contrary i.e contrariety, conflict, antagonistic, opposite or being disparate of the letter of the NASS/Injunctions of islam alone but would also cover the case when an impugned provision of law, law itself or a custom is, disagreeable, repulsive, offensive, distasteful, inconsistent, incompatible, irreconcilable or even averse to the spirit of NASS i.e injunctions of Islam”
Infact on 22 December 2010 the federal shariah court passed a judgment against the women protection act 2006 against the sections 11,25,28,29 of the act and observed that the sections are impugned and the state was given some time to change them to be Islamic.
There is another very important and famous case law.
PLD 1990 SC 99 Qazalbash waqf vs chief land commissioner.
Case history
Zulfiqar ali Bhutto was prime minister with his party leading in the assembly. From 1973-77 he remained in power. Bhutto has promised great land reforms and he felt that since he has major support in the assembly as well as support among the populace under the famous slogan of “roti,kapra,makan” he would be able to pass land reforms which would not only make him popular amongst the peasant class but also weaken the landlords of Pakistan. However he overestimated his support as well as his reach. Bhutto passed the Land reform act of 1977 in his last days of parliament.
Qazalbaksh
Qazalbakh was one of the many awqaf which held thousands of acres of land given as waqf. With the passing of the land reforms, qazalbaksh lost thousands of acres without compensation.
Case
With the rise of Zia, the Islamic provisions and the formation of federal shariah courts in 1979 and with the shariat petition began the argument whether land reforms were Islamic and the position of the land reform act 1977. The process began before this judgment in the judgment of the case Haji naimatullah vs NWFP government of Pakistan, PLD1979 Pesh 104 which stated “We will, therefore, declare that clause (d) of sub-para. (3) of paragraph 25 of the M.L.R. 115 is repugnant to the Injunctions of Islam and recommend that the aforesaid clause shall be deleted with immediate effect.”
The judgment
The case went to the appellate court of shariah which which listens to appeals of federal shariah court. The bench comprised of five judges which passed their judgments as such.
1. Maulana Muhammad taqi usmani pointed out that no one could be deprived of property in Islam except in limited circumstances and the Land reform bill was based on those circumstances.
2. Pir karam shah al-azhari agreed with taqi usmani and pointed out these socialist reforms have no place in Islam. Both voted for removal of Land reforms.
3. Nasim Hassan Shah ji observed “n a society like Pakistan, which has been raised on feudalistic capitalistic principles for centuries, to reduce the gulf between the rich and the poor … it would be essential for the State to intervene ... Accordingly, even large scale State intervention to restrain individual greed cannot be declared to be against the injunctions of the Holy Quran. [Therefore, the] Islamic State is not prohibited from adopting such legal measures as contained in the Martial Law Regulations 115 of 1972 and Act II of 1977 in order to bring about ‘Adl (social equilibrium in the society).”Therefore, even though he agreed, “FSC and SAB … has the jurisdiction … to examine [these laws,] on the merits of the case…”, on merits he held that “the impugned laws are not repugnant to the Injunctions of Islam…”
4. Shaifur Rehman J agreed with nasim Hassan shah ji.
5. Afzal Zullah J voted for the acceptance of appeal and against Land reforms.
With the above Land reforms became illegal in Pakistan and the parliament to this day cannot pass extensive land reforms since land reforms have been declared unislamic by the federal shariah court and the parliament cannot pass any law repugnant of Islam.
With the above we see that Islam places great limitations on the parliament and this contradicts the notion that parliament is supreme and can pass any laws it sees fit.
2. Restrictions on Fundamental rights
Parliament is has been restricted by the constitution that it cannot pass any laws which violate or go against the fundamental rights of a person nor can the parliament amend the fundamental rights which are stated in the constitution of Pakistan. Article 8 states; “Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this chapter, shall, to the extent of such inconsistency, be void”.
The above very clearly highlights the limitation of the legislative that it cannot pass any laws which are inconsistent with the fundamental rights.
In the case law Muhammad Nawaz sharif vs President of Pakistan PLD 1993 SC 473 stated “Fundamental rights guaranteed in any constitution are not capable of precise or permanent definition. These rights are to be construed in consonance with the changed conditions of society and must be viewed and interpreted with the vision to the future”.
Now PLD 2007 SC 642 observed
“Fundamental rights guaranteed by the constitution are not meant merely to be pious enunciations of certain principles supposed to be the basis of the constitution. The characteristic of a fundamental right is its paramount to ordinary state-made laws. They are immune from the pale of legislative enactments and executive actions. They constitute express constitutional provisions limiting legislative power and controlling the temporary will of majority by a permanent and paramount law settled by the deliberate wisdom of the nation. The sanctity of fundamental rights is protected by article 8(2) of the constitution which prohibits the state which includes the legislature not to make any law by which any fundamental rights may be curtailed or taken away and if any law is made to the effect then to the extent of such contravention, it shall be void, it is not liable to be abridged by any legislative or executive order expect to the extent provided in article 233 of the constitution. Fundamental rights cannot be waived. No right which is based on public policy can be waived. Citizens of Pakistan cannot themselves waive out of the various fundamental rights which the constitution grants them. The fundamental rights are not to be read as if they include the words “subject to a contract to the contrary”.
In the case Mehmood khan achakzai vs Federation of Pakistan PLD 1997 SC 426 it was observed
“Words “any law” as used in present article will apply to all laws made by the parliament, be it general law or a law to amend the constitution”.
In the case Government of Balochistan vs Azizullah memon PLD 1993 SC 341 it was observed
“For the purpose of applying fundamental rights granted under the constitution, where the word “state” is sued, it shall include all agencies and functionaries specified in Article 7 of the constitution”. Article 7: “In this part, unless the context otherwise requires, “the state” means the federal government, majlis e shoora, a provincial government, a provincial assembly, and such local or other authorities in Pakistan as are by law empowered to impose taxes or cess”.
In the case Muhammad usman vs the state PLD 1965 Lah 229 it was observed
“If the other parts are not separable in the sense that they cannot be worked without the offending part, or if the offending part embodies a vital part or the object and principle of the legislation, the whole law would be void”.
With the above it becomes apparent that the parliament cannot pass laws contradictory to the fundamental laws as well as make laws which amend the fundamental rights and the cases above have highlighted this restriction. The parliament has been placed with second legal restriction within the constitution.
3. Judicial Review and constitutional amendment restriction
A recent citation has described judicial review. In the case of PLD 2009 SC 879 consisting of a bench of 17 judges it was observed
“That the judicial review is the basic feature of the constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was a cardinal principle of the constitution that no one could claim to be the sole judge of the power given under the constitution and that its actions were within the confines of the powers given by the constitution.
The judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the government. It is the duty of the judiciary to determine the legality of executive action and the validity of the legislation passed by the legislature.
It is a fundamental principle of our jurisprudence that courts must always endeavor to exercise their jurisdiction so that the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the courts and judges. It is to this end that the power of judicial review was being exercised by the judiciary before 3rd November 2007. Indeed the power of judicial review was, and would continue be, exercised with strict adherence governing such power, remaining within the sphere allotted to the judiciary by the constitution.
Through the exercise of suo moto powers and alleged consequential erosion of trichotomy of powers enshrined in the constitution was made a ground for imposing the unconstitutional and illegal proclamation of emergency, which was upheld in tikka Iqbal Muhammad khan’s case, not a single case taken up suo moto was referred, to, or discussed in the detailed reasons of the said decision-except a bald reference in para 2(ii) of the short order – to point to any undue interference in the functioning of the other branches of the government”.
In fact in case law PLD 2015 SC 401 it was held that constitutional amendments are not limited and are subject to judicial review. The case observed
“Article 239(5) if the constitution stated that “no Amendment of the constitution shall be called in question in any court on any ground whatsoever”. Term “any court” used in the said article did not include the Supreme Court by name when the jurisdiction of the Supreme Court was to be ousted, but when the constitution did not mentioned the Supreme Court, its jurisdiction was not ousted. Article 239(5) of the constitution, thus, did not oust the jurisdiction of the Supreme Court to call in question an amendment made to the constitution by the parliament. Even if an attempt was made to curtail the jurisdiction of the Supreme Court (to question the vires of an amendment), it would not be sustainable as the original constitution of Pakistan, 1973, and it was subsequently inserted by a military dictator (vide presidents order no 20 of 1985-constitution second amendment order, 1985) to sustain himself in the usurped office of the president”.
It is with this we understand that the constitution does not have sovereign powers of amendment and amendments can be placed before the Supreme court for review if they are legal and in line with the constitution.
The above three are constitutional limits which are placed on the legislative assembly.
Constitutional system for governance
The supremacy of parliament is not mentioned anywhere explicitly within the constitution. Infact the opposite was founded in another famous case. State vs zia ur rehman PLD 1973 SC 49 it was observed by chief justice hamood ur rehman
“In the case of a government set up under a written constitution, the functions of the state are distributed amongst the various state functionaries and their respective powers defined by the constitution. The normal scheme under such a system, is to have a trichotomy of powers between the executive, the legislature and the judiciary but each of these organs may itself be fashioned in a variety of different shapes and forms. Thus, the legislature may be unicameral or bicameral; the legislative subjects may be divided between the federating units and the federation in a federal system or even the legislative power may be divided between the executive and the legislature. The executive may take the types and grades of courts with the highest at the apex either as an ultimate court of appeal or a court of cessation. There may also be other administrative tribunals outside the judicial pyramid”.
With the above it becomes apparent that the constitution has no concept of supremacy but of God and of itself. It is apparent that the constitution meant for the creation of three equal institution which become a check and balance on each other i.e Judiciary, parliament and executive.
Democratic concept and other democracies
For promoting the ratification of the US Constitution, James Madison (fourth president of USA) in collaboration with Alexander Hamilton and Jon Jay, wrote the ‘The Federalist Papers’. In one of the paper, Madison wrote “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself”
The US placed upon its government the concept of judicial review where the Supreme Court could strike down laws passed by the congress and signed by the president. Its most recent example would be The travel ban by trump on 6 muslim majority countries which have been struck down by state Supreme Courts and hearings by the federal US court will be heard in April highlighting the powers of the court. In fact in December of 2017 a unanimous Supreme Court on Monday stuck down a law that makes birthright citizenship harder for children of unwed fathers to obtain than children of unwed mothers.
Thus the world’s greatest democracy has placed checks on the powers of its elected officials.
Infact even in UK In 2005, Lord Steyn in Jackson Vs Attorney General UKHL adumbrated “the classic account given by Dicey of the doctrine of supremacy of parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”
Infact if we look into the world’s largest Democracy which came into being with us. India. The Supreme Court has the power of judicial review on the decisions of the parliament. The Kesavananda Bharathi judgement or His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (case citation: (1973) 4 SCC 225) is a landmark decision of the Supreme Court of India that outlined the Basic Structure doctrine of the Constitution.[2] Justice Hans Raj Khanna asserted through this doctrine that the constitution possesses a basic structure of constitutional principles and values. The Court partially cemented the prior precedent Golaknath v. State of Punjab AIR 1967 SC 1643, which held that constitutional amendments pursuant to Article 368 were subject to fundamental rights review, by asserting that only those amendments which tend to affect the 'Basic structure of the Constitution' are subject to judicial review. At the same time,the Court also upheld the constitutionality of first provision of Article 31(c), which implied that any constitutional amendment seeking to implement the Directive Principles, which does not affect the 'Basic Structure', shall not be subjected to judicial review.
Infact just a few years ago the Indian Supreme Court struck down an amendment by the legislative assembly of section 66A of their information Technology Act as unconstitutional under the title that it was a restriction on the freedom of Speech.
Conclusion
With the above the following can be concluded that on legal and philosophical grounds
1. That the constitution nowhere states that the parliament is supreme. Infact Article 142 actually has a list of legislations that the parliament can pass. I.e Article 142(b); Majlis e shoora and a provincial assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence”. Article 142(c) “subject to paragraph (b), a provincial assembly shall, and majlis e shoora shall not, have power to make laws with respect to any matter enumerated in the federal legislative list”. The arguments and cases and interpretations highlight that Pakistan is a trichotomy of powers and none is supreme nor sovereign.
2. That other democracies and famous democracies have placed restrictions on their elected legislative and this is exactly why they are such democracies as they don’t allow any institution to have complete power over all.
3. French economist and prominent member of French liberal school, Fredric Bastiat rightly said “When plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it. This highlights that absolute power is a corruption even in philosophical point of view
Pakistan’s education system has many flaws and the lack of legal sense is perhaps its greatest. Heresy and often misinformed views are spoken based on emotions without clear understanding even of the system that runs the country. This is why it is the duty of every citizen to take it upon himself to study the law that govern the country and its philosophy. It is the job of those that seek power to misguide yet one must read, investigate and learn so that we can educate ourselves as well as educate others and make informed decisions.
Source
1. · Siddiqui, Tariq Moin (21 July 2013). "Constitution of Pakistan". GEO Documentary (GEO News area studies). GEO Television Network. GEO Television Network. Retrieved 2 June 2014.
2. constitution of the Islamic Republic of Pakistan 1973, A comprehensive and exhaustive commentary
@Joe Shearer @Oscar @M. Sarmad @HRK @Gufi
by Saiyan0312
Introduction
Pakistan as a country has seen repeated political upheavals with each decade bringing claims of current system not working and a new system to be introduced. Often blanket terms like Democracy and Military dictatorships were used for this purpose with the people looking for a messiah to their problems, running from one end to the other. The 1973 constitution provides for a parliamentary form of government.
Question of supremacy is perhaps the most asked question in Pakistan with institutions claiming supremacy. The common concept in Pakistan is that Parliament is supreme since it makes the laws and represents the people thus it is supreme and they provide explanation that since democracy is rule of the people then automatically the elected representatives are supreme. This very simple point of view and definition devoid of complexity of state affairs is the common thinking amongst the people, the analysts and of course the parliamentarians.
In Pakistan law is not a basic subject at all. A student in school will learn subjects on Islamic studies, math, social studies, history, languages, Pakistan study, physics, chemistry, biology, computer studies which will contain the basics allowing understanding on fields, yet he will learn nothing on law. A student in school is oblivious to the complexity of laws and legal philosophy even the laws that govern Pakistan. Ironic that one learns the laws that run the universe but not the laws that run their country, province, and district. A place they will, most likely spend their lives at.
Hearing misinformation from unqualified lawyers and family friends and parents who themselves have little experience when it comes to dissecting the complexity of law.
However this is why it is imperative that the legal fraternity takes utmost care to promote legal explanation which are not victim to bias nor misinformation and for the state to promote legal understanding amongst young minds so that each citizen of Pakistan is aware of the laws that run the state as well as the rights that are given to them since in the eyes of law a person is considered aware of his rights and the laws that run the state.
Recent times
Pakistan has seen a run of uninterrupted democratic rule since 2008 which has brought with it questions of politics and affairs relating to statecraft and deeper understanding and evolution of the constitution of Pakistan. Perhaps the most common and loudest question is whether the parliament is supreme in Pakistan. The constitution has been defined and explained towards this point with important case laws coming forth. Various opinions for and against have come to stage with of course the emotional cloak. It is often said seeing is believing and for this we will open the constitution of Pakistan to understand where supremacy lie and whether the supremacy is an illusion finding base on political slogans and emotional charges.
However before we enter into the world of Laws, we must understand the following.
Constitution
A constitution are the set of rules and precedent which highlight the governing of a state.
The essence of constitution is that it defines and regulates the powers of the government by imposing limitations on the exercise of executive authority and where the legislator is not supreme, on the power of the legislature itself by prohibiting it from making certain laws.
It is the supreme law of the land, the fundamental law from which all public authorities derive their powers, all laws their validity and all subjects their rights.
The constitution of 1973
The war of 1971 and the separation of East Pakistan shook Pakistan to the core. The country lay broken and disheartened and demoralized. On 20th of December Zulfiqar Bhutto received placed martial law and become both the president and the martial law administrator. With these powers he set out to realign the state affairs. One of them was for the creation of a new constitution. The constitution of 1962 which was suspended in 1969 was seen as a dictator’s law thus was abrogated in 1972. On 14th April he convened the national assembly and on 21st April he rescinded the martial law and brought forward the plans for a new constitution. On 17th April Bhutto called for the constitutional convention which was presence of every political party of every ideology. On 20th October 1972 all parties received a draft which was signed by the national assembly on 2 February 1973. It was ratified on 19th April 1973 and came into full effect on 14th August 1973. 1
With that Pakistan got its first Constitution. Its main points are the following
1. Islamic provisions
2. Fundamental rights
3. Bi-cameral parliament meaning there is a national assembly as lower house and senate as upper house. The word Parliament takes in the meaning of both
4. Parliamentary form of Government
5. Preamble
6. Objectives resolution and 1956 constitution used as source of law
7. Country formed as a Federation of Provinces
These are the basics of the 1973 constitution.
CASE LAWS
When a case is decided, its decision is not one off. It creates a precedent that all subsequent courts must follow. The judgment in that case becomes that precedent and these precedents themselves form laws. According to article 189 of the constitution of Pakistan a “Any decision by the supreme court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding upon all other courts of Pakistan”. An example would be the co shearer law which is “Each co shearer is considered an owner of each and every inch of an un-partitioned property”. This will law will not be found in acts but is based upon case laws. The Famous case law of 1989 SCMR 130. Lawyers use precedents and case laws to base a bulk of their arguments on and we will discuss supremacy on constitutional case laws especially recent ones.
The words of law
If one reads a law then will see a complicated sentence showcasing as much detail and explanation as it can. The reason for this is that each word in law holds importance and is interpreted towards its accordance. Even the word “Shall” has interpretations and case laws so when reading laws, each word must be considered with importance.
Executive
Executive authority is the president, prime minister and the cabinet whose job is to run the state affairs.
And with the above let us return back to the topic at hand about supremacy of Parliament.
Supremacy of parliament
The parliament (composed of the senate and the national assembly which is also called the majlis e shoora) is considered as the supreme institution of the state. This concept often stems from the fact that since the parliament is the only organ of the state which is directly elected by the people and has the power to make laws and according to article 238 and 239 of the constitution, to also amend the constitution, thus the parliament is supreme. Supporters of this notion cite their supra-powers and indeed a massive majority does believe that parliament has utter supremacy.
Definition of “supreme power”
Black’s Law Dictionary defines supreme power as “Highest authority in a state, all other powers in it being inferior”.
Now this holds two elements.
1. The Authority is the highest
2. All other powers in it are inferior
This means that to have supremacy the institution or organ or authority must not only be the highest but it must also not have any equal and all others must be inferior to that high authority. This means that supremacy is one. There are no levels of supremacy nor multi supremes showing supremacy together.
Arguments for supremacy of Parliament
As the debate for supremacy reaches newer heights, the arguments and interpretations gain greater tract. The argument for supremacy is based on the following grounds.
1. Democracy
Abraham Lincoln describes democracy is the government of the people, for the people and by the people. Many argue that in a democratic setup the power is in the hands of the people and the people who elect their representatives among themselves thus hold that power and that power and responsibility makes the elected supreme. In a country like Pakistan, which has been marred in a battle between democratic and undemocratic institutions, such discussion often takes a sensitive and emotional aspect with the cry that any action against the elected representatives is an action to curtail the will of the people. This thought process gains greater ground as politicians use emotional slogans to showcase that the will of the people is so supreme that even the laws bend to it.
2. Constitutional provisions
The constitutional provision article 238 and 239 allow the parliament to amend the constitution. The articles are as such
Article 238; “Subject to this part, the constitution may be amended by the act of majlis e shoora”
Article 239.5; “No amendment of the constitution shall be called in question in any court on any ground whatsoever”
Article 239.6; “For the removal of doubt, it is hereby declared that there is no limitations whatever on the power of the majlis e shoora to amend any provisions of the constitution”
Many after reading this would say that this is it. This ends the entire argument and one could not blame them for thinking so. The articles were not part of the original constitution. They are a product of presidential order 14 of 1985 passed on 2nd march of 1985. This makes the articles controversial since at that general zia ul haq was running the country under a martial law and there was no parliamentary structure at that time. This addition was done under his order and thus is viewed by many legal experts as dictatorial law. It is indeed ironic that the very parliamentarians which abuse zia ul haq and his rule fight tooth to nail to justify and protect this amendment.
However the articles are in full force and the parliament has made various amendments in the constitution utilizing these articles.
3. Case Laws
Many legal experts have discussed these articles and there are case laws present which have declared parliamentary supremacy relating to amendments.
In the case of Ghulam Mustafa khan vs Pakistan PLD 1988 Lah. 49 it was observed:-
The words “subject to this part” appearing in article 238 clearly signify that there are no limitation whatever on the power of parliament to amend any of the provisions of the constitution if the procedure provided in article 239 in fully complied with. Since there is no other article in part XI of the constitution except the present article and article 239, the clear and inescapable conclusion that can be legitimately drawn from the words “subject to this part” is that there are no restraints on the parliament, for amending the constitution other than what is contained in article 239. This view is fully supported by clause (6) of article 239 which itself declares that there is no limitation whatever on the power of the parliament to amend any provision of the constitution. The parliament thus is vested with the power of constituent assembly to make or unmake constitution by amending it through the machinery provided in the constitution.
As well as in Muhammad khan bachal vs Pakistan PLD 1987 Kar. 296 the following was observed:-
Parliament is supreme authority to make any amendment in any part of the constitution to modify it short of its complete abrogation of fundamentals of the constitution. There is no provision in the constitution which puts restraints on its powers in this behalf.
4. Other democracies
Many cite examples of other democracies especially the United Kingdom one where parliament is considered supreme. In recent times the Prime Minister khaqan abbasi also made the same statement. This is a common argument as Pakistan’s democratic road has been a rocky one and the argument presented often takes the shape that in perfect democracies the legislative body is supreme.
5. Constitution itself says the parliament is supreme
This is a very common argument and is often mentioned by the laymen. The claim and argument is very simple however the constitution has nowhere mentioned this supremacy so explicitly.
All arguments for supremacy of parliament circle around the above and a person listening would say that these are sound arguments with solid bases both on philosophical as well as legal grounds. So then why the controversy? That is because of the counter arguments.
Arguments against supremacy of parliament.
There are many legal minds especially amongst the judiciary who have argued that the parliament is not supreme. They have presented their view points and counter arguments. To understand their argument we must first see the preamble of the constitution of 1973 as well as the objectives resolution.
Preamble
A preamble contains the principles used as guidelines by its framers.
Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
And whereas it is the will of the people of Pakistan to establish an order:-
Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;
Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
Therein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;
Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
Wherein the independence of the judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity:
Now, therefore, we, the people of Pakistan,
Cognisant of our responsibility before Almighty Allah and men;
Cognisant of the sacrifices made by the people in the cause of Pakistan;
Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice;
Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;
Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;
Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.
The objectives resolution.
The objectives resolution was adopted by the constituent assembly on 12th march 1949 and became part of the constitution of 1973 through presidential order no 14 of 2nd march 1985 as section 2A stating “The principles and provisions set out in the objectives resolution reproduced in the Annex are hereby made substantive part of the constitution an shall have effect accordingly”.
The resolution states the following
1. Sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the state of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust.[2]
2. This Constituent Assembly representing the people of Pakistan resolves to frame a constitution for the sovereign independent state of Pakistan.
3. The state shall exercise its powers and authority through the chosen representatives of the people.
4. The principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed.
5. The Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.
6. Adequate provision shall be made for the minorities to freely progress and practice their religions and develop their cultures.
7. Pakistan shall be a federation and its constituent units will be autonomous.
8. Fundamental rights shall be guaranteed. They include equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality.
9. Adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes.
10. The independence of the judiciary shall be fully secured.
11. The integrity of the territories of the federation, its independence and all its rights, including its sovereign rights on land, sea and air shall be safeguarded.
12. The people of Pakistan may prosper and attain their rightful and honored place among the nations of the world and make their full contribution towards international peace and progress and happiness of humanity.
The preamble and the objectives resolution set the guidelines which the law makers must follow. Both highlight that the Supreme Being is God alone and all supremacy lies with him and the law makers must exercise their rights within the limitations prescribed by him. This means that the law makers cannot pass any laws which are contrary to Islam or its values and we will discuss these limitations.
Limitations on parliament.
The constitution has placed several limitations on the parliament when passing laws or making amendments. The following limitations are highlighted in the constitution and its interpretation.
1. Restriction to pass laws contrary to Islam
The constitution has made it that the parliament cannot pass laws which are against the injunctions or spirits of Islam. This is perhaps best explained in Article 227; “all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the holy Quran and sunnah, in this part referred to as the injunctions of Islam, and no law shall be enacted which is repugnant to such injunction”.
With the above we can understand that the parliament has been placed under a limitation which states that it cannot pass unislamic laws. Such law will be considered repugnant.
The word repugnant is the limitation and this word was explained in the case law PLD 2010 FSC 1 which states that “meaning and scope of the terms “repugnant” is not limited only to the actual state of being contrary i.e contrariety, conflict, antagonistic, opposite or being disparate of the letter of the NASS/Injunctions of islam alone but would also cover the case when an impugned provision of law, law itself or a custom is, disagreeable, repulsive, offensive, distasteful, inconsistent, incompatible, irreconcilable or even averse to the spirit of NASS i.e injunctions of Islam”
Infact on 22 December 2010 the federal shariah court passed a judgment against the women protection act 2006 against the sections 11,25,28,29 of the act and observed that the sections are impugned and the state was given some time to change them to be Islamic.
There is another very important and famous case law.
PLD 1990 SC 99 Qazalbash waqf vs chief land commissioner.
Case history
Zulfiqar ali Bhutto was prime minister with his party leading in the assembly. From 1973-77 he remained in power. Bhutto has promised great land reforms and he felt that since he has major support in the assembly as well as support among the populace under the famous slogan of “roti,kapra,makan” he would be able to pass land reforms which would not only make him popular amongst the peasant class but also weaken the landlords of Pakistan. However he overestimated his support as well as his reach. Bhutto passed the Land reform act of 1977 in his last days of parliament.
Qazalbaksh
Qazalbakh was one of the many awqaf which held thousands of acres of land given as waqf. With the passing of the land reforms, qazalbaksh lost thousands of acres without compensation.
Case
With the rise of Zia, the Islamic provisions and the formation of federal shariah courts in 1979 and with the shariat petition began the argument whether land reforms were Islamic and the position of the land reform act 1977. The process began before this judgment in the judgment of the case Haji naimatullah vs NWFP government of Pakistan, PLD1979 Pesh 104 which stated “We will, therefore, declare that clause (d) of sub-para. (3) of paragraph 25 of the M.L.R. 115 is repugnant to the Injunctions of Islam and recommend that the aforesaid clause shall be deleted with immediate effect.”
The judgment
The case went to the appellate court of shariah which which listens to appeals of federal shariah court. The bench comprised of five judges which passed their judgments as such.
1. Maulana Muhammad taqi usmani pointed out that no one could be deprived of property in Islam except in limited circumstances and the Land reform bill was based on those circumstances.
2. Pir karam shah al-azhari agreed with taqi usmani and pointed out these socialist reforms have no place in Islam. Both voted for removal of Land reforms.
3. Nasim Hassan Shah ji observed “n a society like Pakistan, which has been raised on feudalistic capitalistic principles for centuries, to reduce the gulf between the rich and the poor … it would be essential for the State to intervene ... Accordingly, even large scale State intervention to restrain individual greed cannot be declared to be against the injunctions of the Holy Quran. [Therefore, the] Islamic State is not prohibited from adopting such legal measures as contained in the Martial Law Regulations 115 of 1972 and Act II of 1977 in order to bring about ‘Adl (social equilibrium in the society).”Therefore, even though he agreed, “FSC and SAB … has the jurisdiction … to examine [these laws,] on the merits of the case…”, on merits he held that “the impugned laws are not repugnant to the Injunctions of Islam…”
4. Shaifur Rehman J agreed with nasim Hassan shah ji.
5. Afzal Zullah J voted for the acceptance of appeal and against Land reforms.
With the above Land reforms became illegal in Pakistan and the parliament to this day cannot pass extensive land reforms since land reforms have been declared unislamic by the federal shariah court and the parliament cannot pass any law repugnant of Islam.
With the above we see that Islam places great limitations on the parliament and this contradicts the notion that parliament is supreme and can pass any laws it sees fit.
2. Restrictions on Fundamental rights
Parliament is has been restricted by the constitution that it cannot pass any laws which violate or go against the fundamental rights of a person nor can the parliament amend the fundamental rights which are stated in the constitution of Pakistan. Article 8 states; “Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this chapter, shall, to the extent of such inconsistency, be void”.
The above very clearly highlights the limitation of the legislative that it cannot pass any laws which are inconsistent with the fundamental rights.
In the case law Muhammad Nawaz sharif vs President of Pakistan PLD 1993 SC 473 stated “Fundamental rights guaranteed in any constitution are not capable of precise or permanent definition. These rights are to be construed in consonance with the changed conditions of society and must be viewed and interpreted with the vision to the future”.
Now PLD 2007 SC 642 observed
“Fundamental rights guaranteed by the constitution are not meant merely to be pious enunciations of certain principles supposed to be the basis of the constitution. The characteristic of a fundamental right is its paramount to ordinary state-made laws. They are immune from the pale of legislative enactments and executive actions. They constitute express constitutional provisions limiting legislative power and controlling the temporary will of majority by a permanent and paramount law settled by the deliberate wisdom of the nation. The sanctity of fundamental rights is protected by article 8(2) of the constitution which prohibits the state which includes the legislature not to make any law by which any fundamental rights may be curtailed or taken away and if any law is made to the effect then to the extent of such contravention, it shall be void, it is not liable to be abridged by any legislative or executive order expect to the extent provided in article 233 of the constitution. Fundamental rights cannot be waived. No right which is based on public policy can be waived. Citizens of Pakistan cannot themselves waive out of the various fundamental rights which the constitution grants them. The fundamental rights are not to be read as if they include the words “subject to a contract to the contrary”.
In the case Mehmood khan achakzai vs Federation of Pakistan PLD 1997 SC 426 it was observed
“Words “any law” as used in present article will apply to all laws made by the parliament, be it general law or a law to amend the constitution”.
In the case Government of Balochistan vs Azizullah memon PLD 1993 SC 341 it was observed
“For the purpose of applying fundamental rights granted under the constitution, where the word “state” is sued, it shall include all agencies and functionaries specified in Article 7 of the constitution”. Article 7: “In this part, unless the context otherwise requires, “the state” means the federal government, majlis e shoora, a provincial government, a provincial assembly, and such local or other authorities in Pakistan as are by law empowered to impose taxes or cess”.
In the case Muhammad usman vs the state PLD 1965 Lah 229 it was observed
“If the other parts are not separable in the sense that they cannot be worked without the offending part, or if the offending part embodies a vital part or the object and principle of the legislation, the whole law would be void”.
With the above it becomes apparent that the parliament cannot pass laws contradictory to the fundamental laws as well as make laws which amend the fundamental rights and the cases above have highlighted this restriction. The parliament has been placed with second legal restriction within the constitution.
3. Judicial Review and constitutional amendment restriction
A recent citation has described judicial review. In the case of PLD 2009 SC 879 consisting of a bench of 17 judges it was observed
“That the judicial review is the basic feature of the constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was a cardinal principle of the constitution that no one could claim to be the sole judge of the power given under the constitution and that its actions were within the confines of the powers given by the constitution.
The judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the government. It is the duty of the judiciary to determine the legality of executive action and the validity of the legislation passed by the legislature.
It is a fundamental principle of our jurisprudence that courts must always endeavor to exercise their jurisdiction so that the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the courts and judges. It is to this end that the power of judicial review was being exercised by the judiciary before 3rd November 2007. Indeed the power of judicial review was, and would continue be, exercised with strict adherence governing such power, remaining within the sphere allotted to the judiciary by the constitution.
Through the exercise of suo moto powers and alleged consequential erosion of trichotomy of powers enshrined in the constitution was made a ground for imposing the unconstitutional and illegal proclamation of emergency, which was upheld in tikka Iqbal Muhammad khan’s case, not a single case taken up suo moto was referred, to, or discussed in the detailed reasons of the said decision-except a bald reference in para 2(ii) of the short order – to point to any undue interference in the functioning of the other branches of the government”.
In fact in case law PLD 2015 SC 401 it was held that constitutional amendments are not limited and are subject to judicial review. The case observed
“Article 239(5) if the constitution stated that “no Amendment of the constitution shall be called in question in any court on any ground whatsoever”. Term “any court” used in the said article did not include the Supreme Court by name when the jurisdiction of the Supreme Court was to be ousted, but when the constitution did not mentioned the Supreme Court, its jurisdiction was not ousted. Article 239(5) of the constitution, thus, did not oust the jurisdiction of the Supreme Court to call in question an amendment made to the constitution by the parliament. Even if an attempt was made to curtail the jurisdiction of the Supreme Court (to question the vires of an amendment), it would not be sustainable as the original constitution of Pakistan, 1973, and it was subsequently inserted by a military dictator (vide presidents order no 20 of 1985-constitution second amendment order, 1985) to sustain himself in the usurped office of the president”.
It is with this we understand that the constitution does not have sovereign powers of amendment and amendments can be placed before the Supreme court for review if they are legal and in line with the constitution.
The above three are constitutional limits which are placed on the legislative assembly.
Constitutional system for governance
The supremacy of parliament is not mentioned anywhere explicitly within the constitution. Infact the opposite was founded in another famous case. State vs zia ur rehman PLD 1973 SC 49 it was observed by chief justice hamood ur rehman
“In the case of a government set up under a written constitution, the functions of the state are distributed amongst the various state functionaries and their respective powers defined by the constitution. The normal scheme under such a system, is to have a trichotomy of powers between the executive, the legislature and the judiciary but each of these organs may itself be fashioned in a variety of different shapes and forms. Thus, the legislature may be unicameral or bicameral; the legislative subjects may be divided between the federating units and the federation in a federal system or even the legislative power may be divided between the executive and the legislature. The executive may take the types and grades of courts with the highest at the apex either as an ultimate court of appeal or a court of cessation. There may also be other administrative tribunals outside the judicial pyramid”.
With the above it becomes apparent that the constitution has no concept of supremacy but of God and of itself. It is apparent that the constitution meant for the creation of three equal institution which become a check and balance on each other i.e Judiciary, parliament and executive.
Democratic concept and other democracies
For promoting the ratification of the US Constitution, James Madison (fourth president of USA) in collaboration with Alexander Hamilton and Jon Jay, wrote the ‘The Federalist Papers’. In one of the paper, Madison wrote “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself”
The US placed upon its government the concept of judicial review where the Supreme Court could strike down laws passed by the congress and signed by the president. Its most recent example would be The travel ban by trump on 6 muslim majority countries which have been struck down by state Supreme Courts and hearings by the federal US court will be heard in April highlighting the powers of the court. In fact in December of 2017 a unanimous Supreme Court on Monday stuck down a law that makes birthright citizenship harder for children of unwed fathers to obtain than children of unwed mothers.
Thus the world’s greatest democracy has placed checks on the powers of its elected officials.
Infact even in UK In 2005, Lord Steyn in Jackson Vs Attorney General UKHL adumbrated “the classic account given by Dicey of the doctrine of supremacy of parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”
Infact if we look into the world’s largest Democracy which came into being with us. India. The Supreme Court has the power of judicial review on the decisions of the parliament. The Kesavananda Bharathi judgement or His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (case citation: (1973) 4 SCC 225) is a landmark decision of the Supreme Court of India that outlined the Basic Structure doctrine of the Constitution.[2] Justice Hans Raj Khanna asserted through this doctrine that the constitution possesses a basic structure of constitutional principles and values. The Court partially cemented the prior precedent Golaknath v. State of Punjab AIR 1967 SC 1643, which held that constitutional amendments pursuant to Article 368 were subject to fundamental rights review, by asserting that only those amendments which tend to affect the 'Basic structure of the Constitution' are subject to judicial review. At the same time,the Court also upheld the constitutionality of first provision of Article 31(c), which implied that any constitutional amendment seeking to implement the Directive Principles, which does not affect the 'Basic Structure', shall not be subjected to judicial review.
Infact just a few years ago the Indian Supreme Court struck down an amendment by the legislative assembly of section 66A of their information Technology Act as unconstitutional under the title that it was a restriction on the freedom of Speech.
Conclusion
With the above the following can be concluded that on legal and philosophical grounds
1. That the constitution nowhere states that the parliament is supreme. Infact Article 142 actually has a list of legislations that the parliament can pass. I.e Article 142(b); Majlis e shoora and a provincial assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence”. Article 142(c) “subject to paragraph (b), a provincial assembly shall, and majlis e shoora shall not, have power to make laws with respect to any matter enumerated in the federal legislative list”. The arguments and cases and interpretations highlight that Pakistan is a trichotomy of powers and none is supreme nor sovereign.
2. That other democracies and famous democracies have placed restrictions on their elected legislative and this is exactly why they are such democracies as they don’t allow any institution to have complete power over all.
3. French economist and prominent member of French liberal school, Fredric Bastiat rightly said “When plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it. This highlights that absolute power is a corruption even in philosophical point of view
Pakistan’s education system has many flaws and the lack of legal sense is perhaps its greatest. Heresy and often misinformed views are spoken based on emotions without clear understanding even of the system that runs the country. This is why it is the duty of every citizen to take it upon himself to study the law that govern the country and its philosophy. It is the job of those that seek power to misguide yet one must read, investigate and learn so that we can educate ourselves as well as educate others and make informed decisions.
Source
1. · Siddiqui, Tariq Moin (21 July 2013). "Constitution of Pakistan". GEO Documentary (GEO News area studies). GEO Television Network. GEO Television Network. Retrieved 2 June 2014.
2. constitution of the Islamic Republic of Pakistan 1973, A comprehensive and exhaustive commentary
@Joe Shearer @Oscar @M. Sarmad @HRK @Gufi
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