Who is sovereign in Pakistan?

By: Dr Hasan Askari Rizvi

Depends on who you ask…

Sovereignty is an imprecise concept because its operationalisation in the form of institutions and processes is a complex affair. It is easy to say that sovereignty belongs to the people or to God Almighty. They key issues are where would sovereignty be located in a state? How would you create institutions and processes for management of sovereignty? The location of sovereignty may vary from a state to state, depending on the nature of the political system and the constitution.

A democratic political system talks of representative governance and the people exercise sovereignty through their elected representatives. This means that sovereignty is located in the elected legislature. The elected representatives maintain close contact with the people in their constituencies who are sovereign in theoretical terms. The parliament does not become all powerful because it shares power and authority with other state institutions under the constitution and law of the country concerned. However, being the representative of the people the parliament has precedence over other state institutions.

In Pakistan, the theoretical formulation and location of sovereignty has caused controversies for two major reasons. First, at the operational level the supreme political power and authority has been used by different institutions. Second, there is a widespread tendency among the political class to view sovereignty as a textbook concept and it is often employed for advancing partisan political agendas.

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 co-opted orthodox religious clergy. The orthodox clergy and militant Islamic groups gained a lot of power and authority during the years of Zia’s military rule.

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.

This means that authority and power of the state is located in the elected parliament, making it the salient institution as compared to the bureaucracy, the military and the judiciary, although these institutions have their domains of authority under the constitution and law.

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. The superior judiciary needs to examine if it is not entering the domain of the elected executive and elected parliament by its actions like fixation of sugar price (September 2009) or lifting price ceiling for samosa (July 2012) and transfer of officials. Both the elected political leadership and the superior judiciary have to observe restraint and show deference towards each other.

The other problem is that a large number of people in Pakistan are extremely sensitive about sovereignty when it comes to interaction with India, the US and other western countries. However, when Pakistani Taliban and other militant groups violate Pakistan’s sovereignty by launching armed attacks on state institutions, functionaries and citizens, they stay quiet.

If drone attacks violate Pakistan’s sovereignty, the attack on the institutions and personnel of Pakistan state by militant groups is also a violation of Pakistan’s sovereignty.

All states are sovereign but the exercise of sovereign rights in international politics depends on internal political cohesion and economic strength of a country. Further, a country must be positively linked with the international system in order to assert its independent and sovereign status. Sovereignty is not protected by aggressive posture towards the outside world but by positive engagement with the rest of the world and peace at borders. The modern communication technologies and voluntary acceptance of international obligations have also diluted the classical notion of sovereignty.

The current confrontation in Pakistan on the exercise of the ultimate authority is a dangerous power struggle between the elected and non-elected state institutions. Both sides can pull together arguments in their favour. This debate is similar to the debate on military rule. Some people have supported military rule in the past and perhaps would like the military to return to power because they despise political leaders. This controversy about military rule did not solve Pakistan’s internal political, social and economic problems. The same is expected to be the consequence of the current confrontation between the executive and the judiciary. Internal divisions will accentuate.

The writer is an independent political and defence analyst.

Source: Who is sovereign in Pakistan?

The Chief Justice of Pakistan in a ceremony held at Karachi said that Constitution of Islamic Republic of Pakistan is Supreme than all (Parliament and Judiciary). In response to this statement convicted ex-premier of Pakistan Syed Yousaf Raza Gilani stated that the Parliament is supreme which made the constitution, not the constitution. He argued that how a creation can be supreme than its creator, mentioning constitution as the creation, and the parliament as the creator. Indirectly he said that the Parliament is the creator of the Judiciary through making a constitution and parliament should be considered and treated supreme than constitution and judiciary. Confusion has been created by the ruling party that who is supreme. According to Independence Act of 1947 the constituent assembly of Pakistan bore the responsibility of constitution making. The Constituent Assembly passed the Objectives Resolution in March 1949 as guideline for making the constitution but failed to give a constitution to the newly created state for 9 years which speaks about the inefficiency of political cadre of Pakistan. Constitution adopted by assembly in 1956 was abrogated in 1958 and then again the constitution of 1962 was abrogated in 1970. The election held in 1970 resulted in secession of East Pakistan. The then elected Assembly bore the responsibility of making a unanimous constitution for the remaining Pakistan after the fall of Dhaka. The parliament which is in function now comprises of two houses, lower house the National Assembly and the upper house the Senate. This form of parliament is envisioned in 1973 constitution under article 50 of the constitution. This parliament does not bear the responsibility to draft the constitution but only has power to amend the constitution. The parliament derives its legitimacy from the constitution as the judiciary derives its legitimacy through article 175 of the constitution. The parliament and the Judiciary both are the outcomes of the constitution and no one is supreme than the constitution although constitution bestows authority on the parliament to amend the constitution under article 238 and also binds the executive to act in assistance of Supreme Court under article 190 of the constitution. The article 2-A guarantees the independence of judiciary on one hand and it is also the driving instrument for the constitution. No amendment can be made in constitution repugnant to the article 2-A. Supremacy of constitution lies in the constitution itself.