By Agha Iqrar Haroon
The observation of the Chief Justice of Supreme Court of Pakistan Mr. Justice Mian Saqib Nisar sahib in which he stated that “Parliament is Supreme but there is also the Constitution above it,” can generate a philosophical debate in Pakistan to determine who is Supreme? — The Creator or Creature?
There is no doubt that power of explaining Constitution lies with higher judiciary and his observation (the Chief Justice of Supreme Court of Pakistan) can determine future status of Supremacy of Parliamentarians and their sole term of reference that is law making —amending the Constitution in accordance with requirements of the State.
The foremost question is — Do Parliamentarians have right to amend any article/clause of Constitution which was hurriedly or by force included into the Constitution in the past? We have a long history of abrogation of our Constitution and forced amendments (Gen. Ziaul Haq and Gen. Musharraf Eras).
In the future, will not the higher judiciary stop or reject any amendment in the Constitution while citing any reference from the Constitution that such clause of the Constitution is against the amendment if Parliamentarians pass such amendment etc? There are many philosophical questions those need answers during prevailing political situation of Pakistan.
Parliamentarians are raising several questions about the legality of interference in their work (amending the Constitution or exercising power conferred by the Constitution to the Parliament).
Pakistan is going through a phase where Supremacy of the Parliament is under question while legitimacy of questioning the Parliament and contesting its supremacy is also under question.
The Minister of State for Information Marriyum Aurangzeb while addressing at the floor of the Lower House of the Parliament (National Assembly) on Tuesday raised several thought provoking questions and she called for an ultimate Parliamentary debate on the powers of state institutions and Supremacy of the Parliament. The article 69 of the Constitution of 1973 allows Parliamentarians for initiating any debate on the floor of the House while not fearing intervention of the courts. It says that “Courts not to inquire into proceedings of 1[Majlis-e-Shoora (Parliament)].-The validity of any proceedings in [Majlis-e-Shoora (Parliament)] shall not be called in question on the ground of any irregularity of procedure.
(2) No officer or member of [Majlis-e-Shoora (Parliament)] in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in [Majlis-e-Shoora (Parliament)], shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.
Above mentioned article 69 clearly says that healthy and Constitutional debates are allowed and this could be a reason that the Minister of State for Information Marriyum Aurangzeb stated that a debate to determine the Supremacy of the Parliament should be initiated.
Today’s political situation of Pakistan reminds me my college era when we used to hold philosophical debates about political issues including term “Legitimacy” and term “Supremacy” in reference to term “Power”.
During one of my classes of “Group philosophy”, our professor late Shahid Hussian Shah of Philosophy Department, Government College Lahore suggested us to read “The Origin of German Tragic Drama” written by Walter Benjamin. The reason behind this suggestion was the background of our discussion regarding “Supremacy of Law in reference to Supremacy of Lawmakers”. This discussion took place at such span of times when philosophical discussions were denied, discouraged rather banned in Pakistan — 1983 — my second year in Government College Lahore.
After several discussions in classrooms, we understood why German Philosopher Walter Benjamin said that “Legitimacy of absolutist rulers is not seriously questioned” — the crust behind writing of “The Origin of German Tragic Drama”. Legitimacy of any thought — institution and ruler is linked with its “Supremacy”. If you wish to question “Legitimacy” of any thought or institution, you need to contest its “Supremacy” at first instance. Once “Supremacy” is eroded then “Legitimacy” floats like a straw in the river of questioning. Who is Supreme in a State or in Political System of State?, has been a common question for determining “Legitimacy” of this “Who”.
Egyptian and Greek mythologies are full of tales where urge of gaining Supremacy compels Creatures to eat their Creators or even themselves. One of such Creatures are “Ouroboros” — A creature of Egyptian mythology. Ouroboros is a serpent or dragon eating its own tail. Originating in ancient Egyptian iconography, the ouroboros entered western tradition via Greek magical tradition. Mythology says Ouroboros believes that his tale strangulates him therefore he starts eating his tale. His believe is based on his Fear — the deadliest reaction of any animal — social or non-social.
Since the Constitution of 1973 had been operative for its own abrogation and had been used to send several prime ministers home unceremoniously; therefore, Parliamentarians strongly feel that this Constitution needs further amendments as their right of amending Constitution is unchallengeable and they must not stop to exercise their term of reference — law making and amending the Constitution.
Since 1973, six political governments were sent home by using certain constitutional clauses although the 1973 Constitution was made to ensure sustainability and continuity of democracy along with sovereignty of the Parliament.
The 1973 Constitution says that the Parliament is the Sovereign and the Supreme Institution of Pakistan. However, things are otherwise when we go through political history of post-1977 Martial Law where we find that the Parliament was neither considered Sovereign nor Supreme because the higher judiciary had been challenging legislation passed by the Parliament and military bureaucracy had been booting out elected governments.
Five prime ministers had been removed since the 1973 Constitution was came into being and the Parliament had been suspended for seven times by institutions other than the Parliament which should have been the only competent institution to disband the Parliament (for fresh elections).
The founder of the 1973 Constitution Prime Minister Zulfiqar Ali Bhutto was removed and jailed by the dictator Ziaul Haq and was hanged by the Supreme Judiciary under a murder case trial. Ziaul Haq amended 1973 Constitution according to his wishes and demands for the extension of his unconstitutional tenure. Since then, the 1973 Constitution had helped circumstances where decisions for removal of elected governments and elected prime ministers became justified through using certain clauses of the 1973 Constitution.
A keen study of removal of elected governments and Parliamentarians indicates that the existing Constitution is actually an extension of Ziaism — A School of Thought introduced by the dictator Ziaul Haq within the Constitution and the society at large.
The article 62 and 63 were included during Zia era and both articles helped to disqualify two prime ministers. The article 58-2/b helped in sending deceased Prime Minister Muhammad Khan Junejo, assassinated Prime Minister Benazir Bhutto and former Prime Minister Nawaz Sharif to their homes by dissolving their assemblies and governments.
The rise of Ziaul Haq as the Chief of Pakistan Army was only possible due to the 1973 Constitution because the then Prime Minister Zulfiqar Ali Bhutto while exercising powers conferred to him by the Constitution promoted Ziaul Haq as the Chief of Pakistan Army although he was a junior Army General among other three stars generals.
This hand-picked army general booted Bhutto out from his government in 1977 and tried him for a murder case and allegedly ensured his hanging by the Supreme Court of Pakistan.
According to the 1973 Constitution, an elected prime minister can elevate any three-star army general to four-star army general for leading the Pakistan army even if he is junior among other three-star Generals. Zulfiqar Ali Bhutto found Ziaul Haq who was junior to many and then Bhutto paid his mistake with his life. This mistake was repeated by former Prime Minister Nawaz Sharif in 1998 by elevating a junior general namely General Pervaiz Musharraf as new Chief of Pakistan Army and Nawaz paid his mistake with his removal by the army in 1999. In both instances, prime ministers used power conferred to them by the 1973 Constitution for setting aside principle of elevating a rightful and senior army general for the top post of the Country. Nawaz Sharif was fortunate that he was tried for high treason under article 6 of Constitution but survived and sent to Saudi Arabia as guest to live in Saroor Palace Jeddah.
Though Pakistan People’s Party (PPP) of Zulfiqar Ali Bhutto came in power trice after 1977 Martial law and Pakistan Muslim League-Nawaz (PML-N) also came in power after 1999 coup but both political parties did not review to fix this clause of extraordinary powers granted to the prime minister to pick and install any junior army general over his seniors without giving any justification.
Two prime ministers of Pakistan were removed from their offices legally by the Supreme Court of Pakistan under article 62 and 63 of the Constitution. Their removal was in accordance with the articles and clauses of the 1973 Constitution. The first was Yousaf Raza Gillani of PPP.
Yousaf Raza Gillani was sent home because he was convicted on the charges of Contempt of Court against the Supreme Court which sentenced him to be held in custody till the rising of court, a symbolic sentence lasting 30 seconds.
On July 28, 2017 former Prime Minister Nawaz Sharif was disqualified by the Supreme Court in accordance with the Constitution of Pakistan under article 62 clause (f) that says that a person cannot be a member of the Parliament if he is not Ameen (faithful, trustworthy).
It is pertinent to mention here that five prime ministers were sent homes through article 58-2(b) of 1973. The article 58-2(b) was included in 1973 Constitution through the eighth amendment in 1985.
The eighth amendment was enforced by the military government of General Zia-ul-Haq. The eighth amendment strengthened the authority of the President and also granted additional powers to dismiss the elected prime minister’s government. These powers included the right, expressed in sub-section 2(b) inserted into article 58, to dissolve the National Assembly (but not the Senate) if, in his or her opinion, “a situation has arisen in which the government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.
The eight amendment also indemnified the entire President’s Orders, Ordinances, Martial Law Regulations and Martial Law Orders including the Referendum Orders made between July 5, 1977, and September 13, 1985.
Muhammad Khan Junejo, Benazir Bhutto and Nawaz Sharif were thrown from Prime Minister’s Office under article 58-2(b) but this article was at last repealed by the Parliament but the legislatures avoided to repeal articles 62 and 63 although both the articles can send Parliamentarians out of the Parliament including the Prime Minister, Speaker of National Assembly and the Chairman Senate if they are not found “Ameen” (faithful, trustworthy) by the Supreme Court of Pakistan.
PPP claimed that it was victim of Judicial Martial when former Prime Minister Yousaf Raza Gillani was disqualified by the Supreme Court. The former Prime Minister Nawaz Sharif indicated indirectly after his removal that Parliamentarians had not been allowed to work freely in Pakistan.
Parliamentarians blame other institutions for not providing legitimate space to work but they (Parliamentarians) never try to repeal articles and clauses of Constitution those had been operative while disqualifying prime ministers. Blame game can only be ended when the 1973 Constitution is greatly amended for ensuring supremacy of the Parliament over the higher Judiciary and the military bureaucracy.
The Constitution provides all powers to higher judiciary to review laws; therefore, the supremacy of review and fixing legislation lies with the higher Judiciary rather than with the Parliament. The Parliamentary history confirms that the 1973 Constitution does not ensure what Parliamentarians demand –– the Sovereignty of Parliament after eight amendment was introduced. Will Parliamentarians be in a position to throw Ziaul Haq out of the 1973 Constitution?
The answer of above mentioned question will determine the fate of democracy and the Supremacy of the Parliament in Pakistan.
The 1973 Constitution is a lethal weapon against itself and does provide protection to different apparatuses for any adventurism against Parliamentarians. The only article that protects the Constitution to fight back any adventurism is article 6 that has never been used against those military dictators (Ziaul Haq and Musharraf) who abrogated and suspend the 1973 Constitution in the past but a former Prime Minister Nawaz Sharif was tried and convicted under this article by General Musharraf who booted out elected government of Nawaz Sharif and then tried him under article 6.
This is high time for Parliamentarians to take suggestion of the State Minister Marriyum Aurangzeb seriously and initiate debate in the Parliament to determine the future role of Parliamentarians — the real future of democracy in Pakistan.
The views and opinions expressed in tis article/Opinion/Comment are those of the author and do not necessarily reflect the official policy or position of the Dispatch News Desk (DND). Assumptions made within the analysis are not reflective of the position of Dispatch News Desk.