Dr. Hasan Askari

Political leaders and political parties may not come up as the ideal and pious leaders but if democracy is to be retained, they cannot be set aside. The primacy of the elected parliament is the central feature of a democratic system. If this primacy shifts to the military or the judiciary, democracy degenerates.

The power struggle between the Supreme Court of Pakistan and the elected federal government has started a debate in Pakistan as to which institution has the ultimate power to take the final decision on important national issues. The rejection of the new contempt of court law by the Supreme Court is being viewed as the first step in the direction of removal of the present Prime Minister Raja Pervez Ashraf. This has raised the question that in a parliamentary system who has the sovereign power in Pakistan? Is the Supreme Court the sovereign authority or the elected parliament?

Historically speaking, sovereignty was located in the constituent assembly and national assembly during 1947-58 and different political parties and key officials competed with one another to strengthen their hold over power of the state.

During the periods of four military rules, the chief martial law administrator and his top brass controlled the sovereign authority of the state because their words were law and the people generally accepted their commands.  During Zia-ul-Haq’s military rule, Zia and his close military associates coopted orthodox religious clergy.

Sovereignty returned to elected parliament during civilian elected rule.  However, since 2009, the elected parliament and the executive are facing a challenge to their authority from the Supreme Court. This is in addition to the traditional pressures from the military.

The Chief Justice of the Supreme Court has publicly rejected the notion of primacy or superiority of the elected parliament, arguing that the Supreme Court has the power to make sure that all institutions of the state stay within the framework of the constitution This raises a fundamental question if the Supreme Court has unlimited power to reprimand every state institutions and functionary, restrained only by the conscience of the judges, its words become constitution and law. This implies that the judges exercise the sovereign authority of the state which negates the preamble of Pakistan’s constitution that stipulates the exercise of state authority and power by the representatives of people.

The Preambles of all regular constitutions of Pakistan (1956, 1962 and 1973) assign sovereignty all over the universe to God Almighty. The people exercise this authority as a sacred trust within the limits prescribed by Him. This exercise of power and authority is to be done through the chosen representatives.

One key issue in Pakistan is how to determine that a law or executive action does not violate the teachings and principles of Islam. Most religious leaders wanted this power to be assigned to a committee of religious scholars. However, the parliament decided to retain this power with itself. Alternatively, the law or executive action can be challenged in the High Courts or the Federal Shariat Court (established by General Zia’s military government) or the Supreme Court. The Council of Islamic Ideology is a recommendatory body only.

This means parliament is not sovereign by itself but sovereignty is located in it for the purpose of exercising power and authority under the sovereign status of state. No other state institution has this status which needs to be respected by other state institutions. The superior judiciary has the power to interpret the constitution but while doing this it needs to acknowledge the privileged position of the parliament as given by the constitution. However it needs to show restraint in exercise of its power against the parliament and elected executive. It may declare any law as unconstitutional. However if it starts building pressure on the parliament and the elected executive on a regular basis and starts removing the prime minister, it is a disturbing development.

Pakistan is the only example of a parliamentary system where a prime minister is removed by the Supreme Court by disqualifying him as the member of the National Assembly. The constitution gives the power of removal of the prime minister to the National Assembly, the lower house of the parliament. But, the Supreme Court has adopted a round-about way to remove the prime minister.

It would be an unfortunate development for parliamentary democracy in Pakistan if the Supreme Court removes the second prime minister. This may cater to the self-cultivated sense of superiority of the judges but it neither helps democracy nor solves the socio-economic problems of the ordinary citizens.

Further, when the action against the prime minister is examined in the background of other actions of the Supreme Court against the federal government, it appears that the Supreme Court is using the notion of judicial activism to expand its power at the expense of the parliament and the elected executive.

Both sides can pull together arguments in their favour.  The politically active circles will support either the Supreme Court or the elected federal government on the basis of their political agendas. In fact, the judiciary has become more controversial now because those with a global comparative outlook do not find any example of a parliamentary system being dominated by the judiciary.

The notion of rectification of political and removal of so-called political leaders through the judiciary or the military is a misleading concept. Political leaders and political parties may not come up as the ideal and pious leaders but if democracy is to be retained, they cannot be set aside. The primacy of the elected parliament is the central feature of a democratic system. If this primacy shifts to the military or the judiciary, democracy degenerates.