Is parliament absolutely sovereign?… Dr Syed Akhtar Ali Shah
In a war of words between different organs of the state and political circles, in the wake of the suo motu exercise of powers by the Chief Justice of Pakistan and judgments, those sitting on the benches and their supporters have been stressing on the sovereignty of the parliament. But, is our parliament really sovereign?
Seen in a purely juristic term, sovereignty has been described in the preamble to the Constitution of Pakistan, 1973 and Articled 2A (Objectives Resolution). According to the preamble, 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. It spells out 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; and further stresses that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed.
This also guarantees 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; the other cardinal principle is the independence of the judiciary which shall be fully secured. Thus the aforesaid provisions place an embargo on the absolute theory of the powers of parliament, to make any law or make any amendment to the Constitution as they wished.
Under, the aforementioned provisions, parliament being the product of the Constitution has to function with parameters set in the Constitution. Therefore, the Parliament under the basic structure theory cannot tinker with basic aims and objectives, which are a parliamentary democracy, fundamental rights and independence of the judiciary.
Similarly, the document also provides a mechanism to realise the real intent and purpose of the makers in various enabling articles of the Constitution. Therefore, all such articles have to be read in juxtaposition.
Now coming back to the concept of parliament sovereignty, the word has essentially been borrowed from the English Legal System. In this context the celebrated writer, AV Dicey has defined parliamentary sovereignty as the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament. This doctrine has undoubtedly remained the core feature of the English political system.
Even in the UK, pertinent questions have been raised over this concept. For instance, if a Bill is compatible with the principle of parliamentary sovereignty, will it immunise the ways in which it undermines the rule of law? Can legislation be both lawful and unconstitutional?
In response to the above questions, Professor Mark Elliott retorted that the strength of our constitution depends, to a large extent, on the willingness of key constitutional actors (the executive, Parliament, the Monarch) to refrain from exercising powers that are legally available to them in order to ensure that constitutional principles are upheld. The working of the English Political System is successful due to the observance of the constitutional convention that institutionalised the democratic principles. For instance, the Queen does not exercise her legal power to veto legislation by withholding royal assent. Restraint is always of paramount consideration, rather it has become the norm in order to observe democratic and constitutional standards.
Although in the UK, parliament enjoys immense authority, having unlimited power in domestic law because it is the sovereign, smooth functioning of democracy within the framework of the Constitution and acceptable to all is that parliamentarians have been prepared to exercise a degree of self-restraint. The demonstration of self-restraint is the real strength behind the smooth functioning of the political system of the UK.
In contrast to the UK political system, Pakistan has a written constitution, with a clear demarcation of powers. Parliament does not have the absolute authority to do whatever it wants to do. In this context, it has been held in Fauji Foundation v Shamimur Rehman (PLD 1983 SC 457) that in Pakistan, Constitution is supreme and Majlis-e-Shoora (Parliament) and provincial legislatures do not only have to legislate within the limits of their respective sphere assigned to them in the Constitution under Article 141 and 142 but there are fields which legislature on no account should transgress viz fundamental rights guaranteed. Similarly, the legislature cannot make a law contrary to the principles and provisions set out in the Objectives Resolution after it has been made part of the Constitution under its Article 2A. All the state organs and institutions owe to the Constitution which is supreme.
The same judgment also held that a law passed by a legislature must conform to the requirements of the Constitution.
Having holistic view of the entire Constitution read with preamble, it can be safely said that as a cardinal principle, the independence of judiciary has to be secured; therefore any law encroaching upon the independence of judiciary will be considered a bad law. Similarly, a law in conflict with fundamental rights will stand null and void.
Seen in the above perspective, all acts directly or indirectly not in consonance with the basic feature of the Constitution or tinkering with the basic structure of the Consecution will be construed as void and of no legal effect.
The aforementioned discussion brings to the fore that restraint based on conventions of the constitution navigates the ship of the state to safe shores of politics.
Governments of the parties keep on changing but laws and conventions of the Constitution remain forever and should not be tinkered with or tailor-made to suit a person or party. Let it be realised that the Constitution is supreme and there is nothing like the absolute sovereignty of the Pakistani parliament.
Courtesy The Express Tribune