The Question of Sovereignty

[mohsinmumtaz]

The question of sovereignty
(Dawn, encounter page, June 28, 2008)
By Hussain H. Zaidi
AN important question in the current political discourse is whether parliament in Pakistan is sovereign. It is averred that parliament being representative
of the popular will enjoys greater status than all other institutions or bodies in the state. The counter-argument is that despite representing the popular
will, parliament’s powers are limited and thus any claim of parliamentary sovereignty is fallacious.

Sovereignty is the supreme power in a political society or the state from which all lawful authority emanates. The sovereign is one who is the source of
all laws in the state and is entitled to exact obedience or compliance from others. The ultimate test of the validity of a law, decree or order is its
conformity with the will or the word of the sovereign.

By implication, the sovereign is not subordinate to any law or institution. For if the sovereign were subject to any law or institution, then that law
or institution would be supreme and thus sovereign. In an absolute monarchy, sovereignty is vested in the office of the king/queen and expressed by the
maxim, “The King can do no wrong.”

In case of a constitutional government, sovereignty is vested not in a single institution or person but in the constitution itself — the basic law of the
land. All institutions and persons derive their authority from the constitution and have to conform to the letter and spirit of the constitution, otherwise
their actions will be deemed unconstitutional and hence invalid and without lawful authority. The one possible exception to this rule is the British parliament,
which comprises the queen, the House of Lords and the House of Commons. Every legislative measure enacted by the two chambers and assented to by the queen
is a valid piece of legislation. But this is because Britain has an unwritten constitution and there are no legal limits to the powers of parliament.

Pakistan has a written constitution, which is the basic law of the land. That basic law has created various institutions and defined their powers. Like
the judiciary and the executive, the legislature or parliament is the creation of the constitution. Thus whatever powers parliament has are conferred on
it by the constitution, which also defines the limits of these powers. For instance:

• Parliament is prevented from making any law which is in conflict with any of the fundamental rights granted by the constitution to the citizens. In this
respect, Article 8 of the 1973 Constitution states: “Any law, or any custom or usage having the force of law in so far as it is inconsistent with the rights
conferred by this Chapter [Chapter 1], shall, to the extent of such inconsistency, be void.”

• Parliament, under Article 227, cannot make any law which is repugnant to the injunctions of Islam.

• It is beyond parliament’s competence to make any law which is inconsistent with the basic character of the constitution. This is only logical, because
all subordinate laws have to comply with the basic law.

• Parliament being the federal legislature cannot legislate on matters which fall within the exclusive legal competence of a province.

• Though parliament is empowered to amend any provision of the constitution, there are two limits on this power. One, the constitution can only be amended
by a two-third majority and not by a simple majority. Thus any constitutional amendment shall be invalid if it is not carried out in accordance with the
prescribed procedure. Two, while giving parliament the power to alter the constitution, Article 239 uses the word “amend”. The lexical meaning of the word
“amend” is to make minor improvements in a document through addition or deletion.

This clearly means that any amendment to the constitution has to be within its basic framework, otherwise it will not be minor. Thus parliament can introduce
minor changes to the constitution; it cannot re-write or deface the constitution by changing its essential character. For example, while parliament can
re-name the Supreme Court as the Federal Court or fix the number of judges, it cannot abolish the court itself. The former will be a change within the
basic framework of the constitution and hence an amendment; however, the latter will not qualify as an amendment to the constitution.

Thus parliament in Pakistan is not sovereign. Rather sovereignty is vested in the constitution. An act of parliament is valid only if it does not conflict
with the constitution. If a dispute arises as to the validity of an act of parliament or an executive order, it is for the superior judiciary to decide,
because this involves interpretation of the constitution, which is a function assigned to the courts by the basic law. Having said that, it does not mean
that the judiciary’s power to interpret the constitution is untrammeled. Rather it is also limited by the constitution. The courts cannot declare any action
which is manifestly unconstitutional to be constitutional and thus valid. Similarly, the courts cannot assume the power of amending the constitution. That
power is exclusively vested in the legislature under Article 239 of the constitution.

It was held by the Supreme Court in State versus Ziaur Rahman and others (PLD 1973 SC 49) that: “In the case of a Government set up under a written Constitution,
the functions of the State are distributed among the various State functionaries and their respective powers defined by the Constitution…. Limitations
would, therefore, be inherent under such a system so that one organ or sub-organ may not encroach upon the legitimate field of the other…. It cannot, therefore,
be said that a Legislature, under a written Constitution possesses the same powers of ‘omnipotence’ as the British Parliament. Its powers have necessarily
to be derived from, and to be circumscribed within the four corners of the written Constitution.”

Being the basic law of the land, the constitution is supreme and inviolable. That is why no constitution in the world provides for its own abrogation or
even suspension. Any attempt to abrogate or suspend the constitution is a repudiation of its sanctity, supremacy and inviolability and thus an unconstitutional
act of the highest order. There is no such thing as extra-constitutional. An act is either constitutional or unconstitutional.

The foregoing gives rise to two questions: Can an unconstitutional act become constitutional subsequently? And if yes, who is authorised to make an unconstitutional
act constitutional? The answer is that no person or body is authorised to put its seal on an unconstitutional act and make it constitutional.

This is logical because, all persons and institutions derive their powers from the constitution and the only test of the constitutionality of their actions
is their conformity to the constitution.