A larger section of the
sovereignty lobby tries to evade the real issue of institutional sovereignty
facing Pakistan; rather it appears that their crying over the spilt milk of
external sovereignty is a ploy to that effect.
This larger section includes
so-called nationalists mostly from the Right and the Center. They all glorify a
militarized Pakistan. Despite that Pakistan is an ally of the US in the war on
terror, they want Iqbal’s Mamula (a little bird) to fight Shahbaz (a hawk). In
their vision, they see Pakistan militarily confronting US, then US collapsing
and Pakistan emerging victorious replacing the US.
Not only does this lobby play
down the idea of internal sovereignty, they also negate the notion of institutional
sovereignty. This they may defend as if by requiring an army they mean to
conquer the whole world.
Be that wishful thinking as
it may! Countries and nations are not made of wishes of a select few. They are
made of stuff which is a sum total of individual citizens’ wishes and
aspirations, and these citizens need freedom, a right annexed to them by
nature, to see their wishes and aspirations fulfilled. So, let’s confront,
instead of US, the reality first!
The sum total of the wishes
and aspirations of a country’s citizens is usually reflected in its
constitution. The use of ‘usually’ signifies the presence of conflicting wishes
and aspirations in a society. Democracy resolves this conflict by way of
majority’s rule and giving the elected representatives power to make laws but
for all the citizens to follow. This majoritarian rule again clashes with the
notion of citizens as sovereign individuals. To resolve this, the constitution
of 1973 enshrines the fundamental rights indiscriminately securable to all the individual
citizens of Pakistan.
The ongoing debate on ‘the
basic structure’ of the constitution concerns this issue. Without going into
the intricacies of this debate, the present writer holds fundamental rights as
the core value of the constitution which no legislation can encroach upon. In
its NRO judgment (December 16, 2009), the Supreme Court in para 27 quotes the
argument put forward by its own amicus curiae: “Mian Allah Nawaz, Sr.
ASC also appeared as Amicus Curiae. He, after elaborating the philosophy
of morality, theory of law, theory of kleptocracy and the philosophy of the
Constitution, contended as follows: . . . (c) The protection of the fundamental
rights of the people is the soul of the Constitution. The NRO, 2007 is
violative of the basic soul of the Constitution.”
From this it follows that the
fundamental rights, being the soul of the constitution, forms the basic
structure of the constitution. This makes them inviolable and requires they be
protected at any cost. Also, from this it follows that the sole aim of the
whole paraphernalia of ‘government’, worked out in the constitution, is to
protect the soul of the constitution, i.e. the fundamental rights. Thus, the
parliament, provincial assemblies, the courts, the election commission, auditor
general, the armed forces, etc., are there to serve the same purpose.
Now, as is evident, the constitution
distributes the sovereignty to various institutions to accomplish the same
task. May it be noted that the all supreme entity is the constitution! Then
comes the judiciary, and after it the legislature. The executive being an
implementation entity requires no sovereignty. Although they are sovereign in
their domains, their sovereignty is limited and defined by the constitution. The
judiciary is sovereign in interpreting the letter and spirit of the
constitution, in seeing whether new legislation is not in conflict with the
constitution, and in protecting the constitution. The legislature is sovereign
in making new laws as per the dictates of the constitution. However, while as
far as its judgments are concerned, the judiciary cannot be questioned by the
legislature (or the executive), the legislature (and the executive) are bound
by the constitution, and hence by the judiciary’s judgments which, in order to protect
the constitution, interpret it.
All the other institutions
created by the constitution cannot claim any sovereignty. Only those
institutions are sovereign which the constitution invests with power to
legislate (the legislature) and the power to check the legislation (the
judiciary). Other institutions make rules and procedures for their own
functioning only. The constitution does not take into account political or any
other interference in the working of sovereign as well as implementation entities.
As may be envisaged, this is a matter to be taken care of by the rule of law. So,
the election commission, auditor general, the armed forces, etc, are just
subordinate entities, not sovereign but independent in their functioning to the
limit of their mandate.
In addition, the
constitutionally elected citizens must be distinguished from the nominated / appointed
citizens as the later are in the employment of the government of Pakistan, and
are required to obey the orders of the constitutional authorities. They have
nothing to do with running the affairs of the government internally or
externally.
In view of this, assigning
any sovereignty to these and other such institutions is un-constitutional. Be
it auditor general, or the election commission, or the armed forces, they are
all there to act according to their legal and constitutional mandates. Thus,
when any of these institutions trespasses on and interferes with the functions
of the sovereign entities, the judiciary and the legislature (and the executive
as their implementation entity), they are guilty of committing
un-constitutional acts, and that is essentially tantamount to overriding not
only the institutional sovereignty but the sovereignty of the country also.
The sovereignty lobby is alive
to this issue is not borne out by any available evidence. As said above, they
camouflage this issue under the guise of external sovereignty which in turn
strengthens their notion of conquering the world by using this or that army.
Their support to Taliban derives from this source. They also argue the civilian
incompetence and corruption as its disqualification to rule in a sovereign
manner. Indeed they move in a circle. This circular movement has dampened the
spirit of the constitution and the sovereign individuals also.
However, they are not the only
culprits responsible for defending such trespasses on the institutional
sovereignty, the political parties which somehow come to power as ruling party
or as coalition partner, are equally guilty. It is because of their inherent
weakness, lack of courage, and lust for power that they always submit to and
compromise with such and other institutionally external interferences or
dictation. None dares to defy it vitally. Had he not bowed down to the outside
pressure on his sovereign office to reinstate the deposed Chief Justice
Iftikhar Muhammad Chaudhry and other judges, and his party’s Prime Minister not
withdrawn his orders of putting ISI under the control of the Interior Ministry,
I would have been madly in love with President Asif Ali Zardari and his
government! Alas, in Pakistan wishes and interests of a select few reign
supreme, not the constitution of the country!
[This article was completed
on December 10, 2010.]
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