Thursday, August 1, 2013

Forsaking institutional sovereignty

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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