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Saturday, December 2, 2023

Judiciary or Legislature-Sovereignty Belongs To?

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As tensions between the government and the Supreme Court continue to rise, the political situation in the country has entered a new, more perilous, and less predictable phase. After deeming the Election Commission’s decision to postpone the votes to October unconstitutional and illegitimate, the Supreme Court ordered elections for the Punjab Assembly to be held on May 14.

The government’s announcement that it will not follow the Supreme Court’s order sets the two institutions on a collision course. It’s bad enough that the executive branch is at odds with the presidency and the Supreme Court of Pakistan.

All of this stems from the ongoing struggle for control between the coalition led by the Pakistan Muslim League-Nawaz (PML-N) and Imran Khan.

In this power struggle between the two main organs of the state, no one is here to highlight the actual limitation of the Legislature and Judiciary under the supreme law of the land. PDM-led coalition group are giving firewall speeches in the parliament that (Parliament Ki Salmiyat Khatray Ma Hai) the parliament’s supremacy is in danger. In order to debunk this constructed myth of censored media and fury speeches, we have to answer some important questions.

1. Is Parliament a supreme body of the state?

According to the 1973 Constitution of Pakistan, the Parliament is the highest legislative institution. The Pakistani Parliament consists of two chambers, the National Assembly (lower house) and the Senate (upper house). It has the authority to pass laws. The Constitution also stipulates an independent judiciary with judicial review authority to ensure that the laws enacted by the Parliament are consistent with the Constitution.

2. Can any organ of the state declare itself as the supreme body of the state to do whatever they want?

The 1973 Constitution of Pakistan prohibits the Legislature from declaring itself the supreme governmental body. The Pakistani Constitution includes checks and balances between the Executive, Legislature, and Judiciary to ensure that no branch has unlimited power. The Constitution and national legislation regulate the Legislature, one of three branches of government.

It cannot declare itself supreme and defy the Constitution and law. The Constitution also allows an independent judiciary to assess the Legislature and other institutions of government. It is to verify compliance with the Constitution and national legislation. The judiciary could rule legislative overreach unlawful and invalid.

3. What is Judicial Review?

JUDICIAL REVIEW is the procedure by which a supreme court interprets a statute and determines its constitutionality. If the judiciary determines that a given piece of legislation violates a constitutional provision, it may invalidate the legislation.

In nations where a documented and federal constitution restricts the powers of parliament, the situation is different. For instance, the Supreme Court can invalidate legislation passed by Congress if it deems it to be unconstitutional in United States.

The Constitutional Court in Germany has the authority to invalidate both conventional laws and constitutional amendments that are incompatible with the fundamental nature of the constitution.

The power of judicial review is utilised differently in distinct political systems. In nations such as the United Kingdom, where the constitution is mainly unwritten and unitary in nature and parliament is sovereign, the courts can declare an act of parliament to be incompatible with the constitution, but they cannot invalidate a law for being incompatible with the constitution. In other terms, the judiciary is limited to constitutional interpretation.

Power of Judicial Review

In our political system, does the judiciary have judicial review? If yes, how far does this power reach?

Pakistan, like India and the United States, has a federal constitution that divides authority between the center and the provinces. In accordance with Article 142 of the Constitution 1973, the federal legislature may legislate on subjects listed in the federal legislative list and the concurrent legislative list.

Similarly, provincial legislatures have the authority to legislate on matters within their jurisdiction. According to the law, neither parliament nor a provincial legislature can usurp the legislative authority of the other.

No law against fundamental rights

The constitution also limits the authority of both the federal and provincial legislatures. In the first instance, no law may be passed that violates any of the fundamental rights granted to citizens by the constitution.

In this regard, Article 8 of the constitution states, “Any law or custom or usage having the force of law that is inconsistent with the rights granted by this [Chapter 1] shall be null and void to the extent of such inconsistency.”

No law in contradiction with Islam

In the second instance, no law can be enacted that contradicts Islamic precepts. In this regard, Article 227 of the constitution states, “All existing laws shall be brought into conformity with the injunctions of Islam as outlined in the Holy Quran and Sunnah, and no law shall be enacted that is contrary to these injunctions.”

No law in contradiction with constitution

Third, parliament cannot pass laws that contradict the constitution, the nation’s supreme legislation. Thus, parliament has four basic legislative limits. It cannot legislate on provincial matters except under a state of emergency, and its laws must comply with fundamental rights, Islamic injunctions, and the constitution.

From these limitations on the legislative competence of the legislature proceeds the power of judicial review. The superior judiciary can invalidate a parliamentary act that exceeds its legislative authority for any of the four reasons enumerated in the previous paragraphs.

In other terms, Pakistan’s parliament is not sovereign. Rather, its authority is constrained by the constitution’s enumerated provisions. If these powers are abused, the judiciary can be called upon to address the aggrieved party’s complaints.

As one former US Supreme Court justice stated, “We [judges] are under the constitution. However, the constitution is what we claim it to be.” The judiciary does not create laws but rather interprets them, both ordinary and constitutional. If judges determine that a statute is unconstitutional, it must be expunged from the statute book.

Judiciary only for interpretation

A constitutional amendment’s validity cannot be challenged in court. Courts are limited to interpreting the constitution. Does this indicate that a simple two-thirds majority vote in parliament is enough to modify the federal character of the constitution, end the parliamentary form of government, or strip citizens of basic rights like the right to life or right to vote?

Article 239 allows parliament to “amend” the constitution. “Amend” means to add or remove words. Any constitutional amendment must be inside its core framework to be modest. Thus, parliament can only make modest amendments to the constitution.

The courts interpret the constitution and decide whether a constitutional amendment adheres to its fundamental nature. If a constitutional amendment defaces the constitution, the courts might urge parliament to repeal it as supra vires.

Even though the courts possess the power of judicial review, it cannot be exercised arbitrarily. If parliament’s ability to enact laws is not unlimited, then the courts’ ability to review those laws is also not unlimited. The judiciary, like other state departments, is bound by the constitution.

They can interpret and invalidate laws, but only the federal and provincial legislatures can make laws. Courts cannot constitutionalize the unconstitutional. Hence proved that Sovereignty or supremacy is located neither in parliament nor in the judiciary but in the constitution.

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Writer is an independent researcher and Student of MPhil IR at QAU Islamabad.

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