Obedience to the Constitution

The citizens enjoy certain fundamental rights which can neither be abridged nor taken away

Syed Saad Ali Shah is a practising lawyer based in Islamabad and Peshawar, and also teaches public law. He can be reached at [email protected]

Emotive discussions have erupted over the judgment of the Supreme Court, declaring the ruling of the Deputy Speaker for not allowing vote of no-confidence against the Prime Minister, and subsequently the action of the President to dissolve the National Assembly on the advice of the Prime Minister, to be contrary to the Constitution and the law, thereby being of no legal effect.

People outside the legal profession, and the supporters of Imran Khan in particular, expressed extreme disappointment over the decision of the Supreme Court and were in no mood to accept the wisdom behind the judgement. Many of them allege that the opposition leaders were hobnobbing with foreign powers, such as the US, for change in regime; and as per their interpretation, it was violation of Article 5 which pledges loyalty to the state, and thus above the Constitution.

History tells us that those undermining the importance of pledging obedience to the Constitution are treading on a dangerous path as it has always proved to be catastrophic to society. It is therefore quite significant to have a closer look at the wisdom behind the judgement as well as obedience to the Constitution. The Constitution is of paramount importance as it is a social contract of cementing character which binds the citizens with the state. The citizens enjoy certain fundamental rights which can neither be abridged nor taken away. Hence, any deviation from the expressed provisions of the Constitution under farfetched notions of obedience to state, especially when it has no nexus with the vote of no-confidence under Article 95, not only undermines but shakes the very foundation of the state. To ensure good governance and uphold the principle of rule law, one must adhere to all the provisions of the Constitution as it is the supreme law of the land. Failure to do so would plunge the society into a ravine of anarchy and chaos.

To understand the Constitution, it is of utmost importance to study its preamble which provides for its architectural plan and guidelines. The state is broken down into three organs — judiciary, executive and the legislature — which are a creation of the Constitution. Moreover, the Constitution has certain basic features such as federalism, trichotomy of powers, and fundamental rights which form the basic structure of the Constitution. Under the basic structure theory, even Parliament cannot change the basic structure of the Constitution.

Freedom to vote without fear and coercion is a fundamental right of every citizen whether in Parliament or outside. Since the Constitution provides for a representative democracy, the voice of the people has to be heard. The essential function of Parliament and of the Speaker is to allow the people through their representatives an unfettered opportunity not only to vote but also to debate, declare, resolve and enact laws. These fundamental rights are intrinsic to the Constitution and, therefore, cannot be violated. The Speaker is bound to act within the four walls of the Constitution. So, any action of the Speaker not allowing a voter in the National Assembly to cast their vote is a violation of the fundamental right. Therefore, the Supreme Court in exercise of the powers of judicial review can declare any act or law as ultra vires of the Constitution, if it is in violation of the fundamental rights.

The argument made by the supporters of Imran Khan and the then government, barring its attorney general, primarily revolved around Parliamentary Supremacy and Parliamentary Privilege — the former being that Parliament is the Supreme body in this country and no one can challenge its working, and the latter being that the conduct of Parliament and parliamentarians inside of the House are protected by a constitutional firewall. Thus, based on these two arguments combined, judicial review of the Supreme Court in such circumstances was unwarranted and beyond its scope. However, it is noteworthy to mention here that unlike the English political system, Pakistan is governed by the concept of Constitutional supremacy. This means that the Constitution reigns supreme over all the bodies in this country, and all the organs of state are subservient to the Constitution, including Parliament, and the Supreme Court is the custodian of the Constitution. Whenever the parliamentary process, as laid out in the Constitution, is disrupted and sabotaged, it creates a classic ground for the Supreme Court to intervene through judicial review. Only through its intervention via judicial review can the Supreme Court restore the parliamentary dignity and constitutional supremacy by clearing the debris clogging the arteries of the constitutional structure. This can only be done by the legally binding guidance that only the Supreme Court can provide in such matters through its judgements from time to time.

Keeping in mind the above, it is of paramount importance to understand that we cannot limit the Constitution to a few articles, such as Articles 95 or 58. The Constitution must be looked at and followed as whole especially when it comes to matters of governance. The Constitution of Pakistan clearly demarcates the boundaries within which each organ of the State must operate. Going beyond that is negation of law, a basic malaise of our political system. Therefore it is imperative for all to abide by the oaths provided in schedule to the Constitution and Rules of Business framed thereunder.

The main issue today still remains wandering and largely unaddressed. Who exercises control over the levers of power in the state? This wandering and unaddressed issue is what gave rise to Nawaz Sharif’s slogan of vote ko izzat do and Imran Khan’s slogan mera kya kasoor tha and ‘foreign conspiracy’. The solution to this issue is quite simple but at the same time quite complicated given the reality of political history and scenario. Obedience to the Constitution. The three organs of state shall remain and function within the orbit of the Constitution. All other connected departments of the Executive should also confine themselves to the role provided in the law and roles such as issuing policy statement etc should be left to the concerned Ministry or the Prime Minister. Abraham Lincoln quite rightfully said, “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”

Published in The Express Tribune, April 20th, 2022.

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