Chaos of power struggle among state organs

Our Constitution confers clear powers and jurisdiction upon the three organs of the state and they must work in those constitutional confines in order to avoid any political, economic or administrative chaos.

Harmonious working of state organs fosters political certainty, economic stability and administrative convenience for better governance and delivery of public services by the state. However, Pakistan has been beset with crisis of conflict among state organs despite very succinct and clear regime of separation of powers among them.

Each organ of state is independent in its working under the Constitution. Parliament is totally independent in its functions and removal of its members. No direction could be issued to parliament by any court. However, legislation enacted by it is subject to review of the superior judiciary if it’s in conflict with the fundamental rights of citizens enumerated in chapter 1 of Part II of the Constitution.

Parliament, like judiciary, is empowered to remove its own members under Article 63 (2) and (3) of the Constitution which clearly says that if a question of disqualification of a member of parliament arises speaker of the National Assembly or chairman of the Senate shall, unless he decides that no such question has arisen, refer the question to the Election Commission within 30 days and if fails to do so it shall be deemed to have been referred to the Election Commission which shall decide the issue within 90 days. Such a decision shall be final as no appeal has been provided.

Parliament or the provincial assemblies are also empowered to declare a seat of a member of the House vacant if she/he remains absent for forty consecutive days of its sittings. They are also empowered to punish their own contempt.

Like parliament, the judiciary is also independent and appoints and removes its own judges but its jurisdiction to issue writs, orders or directions is subject to the Constitution under Articles 199 and 184(3) of the Constitution.

This means that its jurisdiction being subject to the Constitution it can’t remove or disqualify the members of Parliament as Article 63(2) and (3) provides that a member of parliament could only be removed on a reference of speaker or chairman of the Senate. The provision of disqualification of assembly members by the Election Tribunal is also ultra vires of the Constitution.

In India also this power of removal of parliament members rests with the President on a reference of speaker or chairman of the Council of states and his decision is final though he is bound to seek opinion of the Election Commission. Thus historically the power of removal or disqualification of members of parliament is possessed by parliament itself from the days immemorial.

Similarly, the cabinet is also totally independent in its actions as Article 248 of the Constitution unequivocally declares that no minister is answerable to any court in Pakistan for the exercise of powers and performance of functions of their respective offices.

In fact, under the Constitution, cabinets and Council of Common Interests are responsible to parliament and provincial assemblies.

Similarly, like parliament and the judiciary, cabinet members could be appointed or removed by the prime minister or chief minister.

Now, we would see that each organ has complete power over its affairs. Parliament can remove or disqualify its own members barring minor ingress by the Election Commission, the judiciary appoints and removes judges itself and political executive is also empowered to appoint or remove its own ministers with complete immunity of being not responsible to Courts for its official actions.

There is no scope under the Constitution that these three institutions should be on a collision course as their functions are separate and they can’t interfere in each other’s affairs.

Sensing such difficulty to remove the prime minister, General Ziaul Haq inserted Article 58(2) (b) in the Constitution which was repealed subsequently and 18^th amendment made the Prime Minister more powerful after presidential powers were surrendered by former President Asif Ali Zardari.

In 2009, a seven-member bench of the Supreme Court in a case reported as PLD 2009 SC 107 held that disqualifications mentioned in Article 63 are immune from the scrutiny of the superior courts. Obviously, this power under the Constitution vests in the speaker and the Election Commission.

In 2012, a three-member bench took a circuitous route to disqualify prime minister in view of the above judgment. First, Prime Minister Yusaf Raza Gilani was convicted in a contempt case in which he pleaded immunity under Article 248 and then the speaker and the Election Commission were pressed to disqualify Prime Minister and when the Speaker held against his disqualification, The Election Commission was asked to issue a notification under Article 63(3) of the Constitution.

But in 2017 in the case of former prime minister Nawaz Sharif Article 63(2) (3) was not even invoked and the material was not sent to the speaker to decide the issue of disqualification and the Supreme Court proceeded to issue a writ against him.

At present, there is raging unease and anger over interpretation of Articles 63 (2) (3) and 248 of the Constitution and alleged exercise of powers of prosecution by the judiciary.

The country needs an informed and academic discussion on these three issues on Federal and provincial level so that a solution could be evolved. President can also seek opinion of Supreme Court on this issue under Article 186 of the Constitution.

Like most Constitutions, our Constitution also adheres to the theory of separation of powers which should be a bulwark against any excess of jurisdiction by any organ of the state.

If the object of every organ of the state is to serve the masses within the four corners of the Constitution, there could be no occasion of stepping out of constitutional jurisdiction.

The best way to serve the country is follow the rule of law and Constitution. Patriotism could not be used to justify actions taken in violation of rule of law and Constitution. The Constitution given to the country by the Pakistan Peoples Party is not only sacred but the only document after 1947 which binds the people and provinces as a Federation.

Published in The Express Tribune, October 12^th, 2018.

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