Addressing the meeting of judges belonging to special tribunals and administrative courts, Chief Justice of Pakistan Justice Mian Saqib Nisar said: “The Constitution is the supreme document of any country.”
Constitution is indeed the fundamental law of the country, which defines the authority and jurisdiction of the all three organs (legislature, executive, judiciary) of the government. Since all the pillars of the state including parliament has to act within its limits, only the Constitution is supreme. Secondly, the parliament can make laws and amend the Constitution, but it cannot alter its basic structure enunciated in the article 2(A).
In India, there were differences between the judiciary and the parliament regarding the issue of basic structure. However, article 13 of the Indian Constitution restricts parliament from making any laws that negate the fundamental rights. And both the SC and HC can strike down (judicial review) any law made by parliament if it contravenes any other provision of the constitution.
Indian Supreme Court had struck down the ‘draconian’ Section 66A, whereby the supremacy of the parliament was restricted. It means that Indian constitution has checks and balances to allow all the three organs to operate independently, and at the same time to have reasonable limits so that no one becomes so powerful that he is not answerable to anyone. In the UK, parliamentary sovereignty is a principle of the UK constitution, which makes Parliament the supreme legal authority in the UK that can create or abolish any law. Generally, the courts cannot overrule its legislation and no parliament can pass laws that future parliaments cannot change. The UK is perhaps the only country that does not have a written constitution. The constitution may not exist in a single text but large parts of it are written down, much of it in the laws passed in parliament — known as statute law.
Therefore, the UK constitution is often described as partly written and wholly uncodified, which means that the UK does not have a single, written constitution. In the US, Congress can pass laws, but it is ultimately the Supreme Court that judges whether those laws are ‘constitutional’. In Pakistan, a section of intellectuals and constitutional experts hold the view that the parliament is supreme and it has the right to frame or amend the constitution. Recently, a person specific amendment was made in the constitution allowing the disqualified prime minister as head of the party. Though all pillars of the state talk about their primacy, on a constitutional polity, which we are, it is indeed the constitution which is supreme. Neither is anyone superior over others, nor inferior to others. All are subservient to the constitution, and all are bound to follow its dictates and stipulations.
No doubt, constitutional disputes and differences occur even in entrenched democracies. However, incidence of such tiffs is indeed reduced to the minimum if all the state pillars respect the supremacy of the constitution and abide by it in letter and spirit. In Pakistan, members of the parliament blame the judiciary for legitimising the military dictatorships conveniently forgetting that they had aided and abetted the dictators. Article 6 of the constitution reads: (1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason. (2) Any person aiding or abetting or collaborating in the acts mentioned in clause (1) shall likewise be guilty of high treason.”
Major political parties are being run as top leadership’s fiefdoms, dynasties or family enterprises, and one does not see democracy in any of these parties
Major political parties are being run as top leadership’s fiefdoms, dynasties or family enterprises, and one does not see democracy in any of these parties. After deletion of sub-clause 4 of Article 17 that read: “Every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders”, the dictatorship of the party leadership had further been reinforced. In 18th amendment, Article 63-A with regard to disqualification of a member on the grounds of defection has empowered the party head as instead of parliamentary party leader, the party’s head would have the right to send disqualification reference of the elected member of the assembly. The self-styled custodians of democracy have always been authoritarian and arrogant leaders, who dictate party policies, and wish to be elected unopposed as lifetime chairman of the parties.
The Westminster model of parliamentary democracy was the first of the modern systems that evolved, as the new classes associated with the market economy emerged. This British model was at best a compromise model after seesaw battles had been fought between the ‘royalists’ of the British aristocracy and the representatives of the emerging new classes. It was a system that finally gave the commoners the right to elect the lower house members and government, while retaining the king as a figure-head of state and the house of lords as the upper house where the country’s hereditary feudal representatives sat on the basis of their titles. The system is successful in England, as the country is developed, and it caters to the needs at home and abroad. In a country like Pakistan, there is a need to improve the system of elections so that participation in elections is not the only preserve of the opulent classes, and middle classes/commoners could also get involved in the election process.
The writer can be reached at [email protected]
Published in Daily Times, February 7th 2018.