Using the ‘NA-is-sovereign’ excuse

All governments have justified their misuse of executive authority under the defence that parliament is sovereign.

To quote one of the great political leaders of Pakistan, Mohammad Asghar Khan: “We have learnt nothing from history.”

The reason is painful but simple — ignoring lessons of history benefit the ruling class. Watching every ruthless power struggle among politicians and military generals grabbing power for the sake of power, or twisting laws and coercing institutions by the powerful ruling groups, we are reminded of this reference of our poor memory and very weak sense of history.

The present context in which the collapse of the legal and constitutional foundation of the government is taking place is its open and brazen defiance of the orders of the Supreme Court of Pakistan. It may not require an erudite constitutional lawyer to establish what it would mean for a political order if those in power refuse compliance with judicial decisions, primarily to protect themselves and their supporting allies against independent investigations of their corruption. It amounts to pulling the judicial system down, and they don’t seem to be bothered about this at all.

The argument of the government is as follows; all institutions must function within the constitutional boundaries allotted to them; and it is the executive’s legal privilege to appoint and transfer civil servants, and it is not obliged to do so when ordered by the judicial authority. Don’t forget this government and all others before it have justified their misuse of executive authority under the defence that parliament is sovereign because it embodies the will of the people.

These arguments can be used to mislead people, which the ruling classes have done for a very long time. The mandate of the people is to form a government but exercise power within the limits of the law and the constitution.

In most of the developing world, notably in Pakistan, political executives formed by dynastic leaders and their proxies act as civilian dictators and have used executive power like in for personalised fiefdoms. In doing this, never have they faced effective resistance from the society or from other state institutions. Every student and practitioner of politics knows that power of the political executive is restrained by the constitution; democratic norms within parties through conscientious dissent; civil society; and finally the electorates. In parochial, traditional political cultures, these indeed have proven to be very weak brakes on the power of the executive.

It is a political falsehood that popular representation can give a free licence to a representative political executive to do whatever it wants or interpret the constitutionality of its own acts itself. No, this cannot be the case in any constitutional democracy. All acts, and the general exercise of power in any form and manifestation, must be within the legal and constitutional limits. Here is the rub; who will determine the legality and the constitutionality of the executive’s decisions or even the boundaries of the executive authority? Not the executive itself, and not even the parliament, but the superior courts.

Why then such defiance? It is to protect certain members of the ruling club against independent inquiry of their misdeeds and subversion of autonomous prosecution. The clan seems to have made a choice — it is better to go down by causing a collapse of the entire system than carry the legal stigma of conviction and its social and political consequences. We hope some good sense prevails in the corridors of power to save democracy from such ‘democrats’. 

Published in The Express Tribune, August 1^st, 2011.