Published on: http://users.erols.com/ziqbal/mar22.htm
Mr. Mohammad Akram Sheikh is a well-known attorney of Pakistan Supreme Court.  He has always believed in and fought for the supermacy and independence of judiciary in Pakistan

Once upon a time there were only Kings. They were the source of what we now call the executive, the legislative and the judicial power. But absolute kings with absolute powers proved, in most cases, to be a bad experience. Then civilized societies, by a process that took quite a few centuries, evolved systems where these three powers came to be institutionalized in three different institutions; the Executive, the Parliament, and the Judiciary. The institutionalization has been brought about by methods sometimes evolutionary and sometimes revolutionary. It has been an ongoing struggle, and in this struggle even these institutions have sometimes clashed. A recent struggle of almost epic proportions has taken place in Pakistan. Some have claimed victory in this recent episode in the struggle to evolve a civilized society.

Those who claim to be the spokesmen for the Parliament have reportedly claimed a victory for it and to have established its superiority by determining the number of Supreme Court Judges at 17. They have thus announced that they have won the 73 days old battle which had held the entire Nation as its hostage. Surprisingly they had earlier insisted that sovereignty could be proved only by fixing the Supreme Court’s strength at some figure less than 17. That was exactly what the whole dispute was about.

Undoubtedly the Parliament is a very prestigious forum, and in the Islamic Polity of Pakistan it has the status of a platform for Ijma of Ummah. It is a consultative body to deliberate on the issue faced by the nation and to find solutions to them in accordance with the Laws of Allah, Sunnah and other ways consistent with the above.

The victory which was claimed by the Parliament in fixing the number of Supreme Court judges at 17 pertains to a decision which was being considered on 21st of August, 1997 without any debate. The Chief Justice of Pakistan had only demanded five judges so as to complete the number of 17 which had been fixed by the Parliament but by the President in 1987 pursuant to an Executive summary of the Prime Minister forwarded to the President on the recommendations of Chief Justice of that time. The parliament has only superseded the executive order of the President and can perhaps claim legislative victory over the Executive order passed by the government itself. But 73 days’ political turmoil that the country went through pose serious questions as to the independence of institutional arrangement of the Parliament. Although I am already on notice for breach of Parliament’s privilege I feel constrained to express my opinion on this academic issue in larger public interest. People of Pakistan are entitled to know the quantum of Parliament’s freedom (sovereignty) available in Pakistan.

During the last two months on the demand of the Supreme Court for five judges the Prime Minister has made some 17 statements reiterating superiority of the Parliament and insisted on fixing the number of judges. The distinguished Members of the Parliament joined ‘chorus’ with him as they have done now. The sovereign Parliament adjusted its demand to the tune of Prime Minister’s wishes. If the Prime Minister was to insist on 12 judges they would have quoted practice of Great Britain and America where the number of Supreme Court judges was not great and impressive but now that the Prime Minister has conceded the strength of 17 everyone is claiming victory and superiority as if they have done something different and contrary to what was being demanded of them.

Although the issue of Supreme Court judges has been settled for the moment but the issue as to the institutional strength and sovereignty of the Parliament is an issue which needs a clear perception by the citizens.

When one looks back at our parliamentary history, our sovereign Parliament is known to have performed its legislative functions keeping in view one individual. The Flour and Rice Units in Punjab were taken over to nationalize the Flour Mill of Chaudhry Zahoor Elahi who had been opposing ZAB. Suppression of Terrorists Activities Act came to enable prosecution of Wali Khan before Hyderabad Tribunal. Even in the present scuffle of the executive with the judiciary, the Parliament changed stances on the number of judges in the direction of Prime Minister’s statements.

The traditional concept of parliamentary sovereignty prevalent in Britain is neither claimed nor is available to the Parliament of Pakistan since the Constitution, which distributes powers between the various organs of the State directly declares that sovereignty over the entire universe belonging to Almighty Allah alone. The Document also declares the State power is a sacred trust to be exercised by the chosen representatives, and the forum of chosen representatives where they sit to deliberate for national welfare and good of people are the houses of Parliament.

Nowhere in the Constitution is the concept of absolute sovereignty of the Parliaments enshrined. The Constitution divides the legislative powers between the Provinces and the Parliament and empowers the Parliament to make laws on the subjects restricted and limited to the federal and concurrent legislative list. The entire plethora of residual area falls within the exclusive domain of the Provincial Assemblies. Therefore, political notion of Parliament’s sovereignty in Pakistan is a product of some very serious misunderstanding of the federal nature of the Constitution and its jurisprudential ingredients.

It is unfortunate that based on ignorance about the basic features of the constitution  misleading notions of the Parliament’s sovereignty are nurtured and proclaimed.  Dicy, one of the greatest constitutional experts has written about the Prliament’s sovereignty in England that they can even legislate for ‘murder of a blue eye baby’ but even Dicy says that ‘they’ must go mad before they make such a law. In Pakistan the Parliament is not the Constitutional law giver. It was the constituent assembly, first time elected in 1954, which gave this country a Constitution. The assembly was elected for this purpose and had a charter before itself. The People of Pakistan expressly gave it the mandate for framing of the Constitution, which ultimately culminated in the framing of 1956 Constitution. After that the country faced forced separation in 1971 elections held for the National Assembly elected as a consequence of 7th of December Elections. In West Pakistan the Assembly was treated as another constituent Assembly due to necessity of the circumstances, and the 1973 Constitution was framed with consensus of all and with the participation of all major parties representing various regions forming part of this federation. The object of achieving a consensus, across almost a year faced many break down. One may conveniently refer to the Special provisions (Articles 153 to Article 159) incorporated in the Constitution which were worked out after several break downs. The right of the Parliament to set up distribution of electricity, royalty on gases, power of the Provinces to set up broad-casting and telecasting net works and also to set up Provincial Banks are the vital issues of Provincial autonomy which were not readily agreed to by a strong centralist ZAB. Even the Council of Common Interests (CCI), which is a unique feature of 1973 Constitution was incorporated with great difficulty.  Now if one were to argue that Parliament can do everything  whatsoever without any constraints and limitations placed on its legislative authority by the Constitution itself, such provision does not deserve answer. Just the following two questions can expose hollowness of such a claim.

i. Is the Parliament competent to make any laws contrary to the injunctions of Quran  and Sunnah?

ii. Can the parliament make laws contrary to quantum of Parliament’s autonomy guaranteed under the Constitution and contrary to the federal legislative list annexed to the constitution under Article 70 of the document.

Therefore, let us examine what are the parameters of the institutional independence and the sovereignty which the Parliament enjoys. But before that let us examine the historical context. The word ‘Parliament’ (from old French Parlement, Latin Parliamentum), is the name for the original legislative assembly of England, Scotland, or Ireland and successively of Great Britain and the United Kingdom. The national and provincial legislatures in some countries that were once British colonies are also known as Parliaments. Modern Parliaments have developed from the fusion, during the reign (1272-1307) of Edward I, of two English governmental institutions. One of these sometimes  was described as a colloguium. In 17th century Parliament became a revolutionary body and was the centre of resistance to the king during the English civil War (1642-51). The Restoration period (1660-88) was the period of development of the Whig and Tory factions, ancestors of the later political parties. After the Glorious Revolution of 1688, William III chose his council of officers of state, from among these party members in Parliament – at first from both parties and then finding this unworkable, from the party commanding a majority in the Commons. Under Queens Anne this council, or Cabinet, as it came to be known, became a distinct policy-making body, usually meeting alone without the Queen. Subsequently, under first two Georges, who were politically ineffectual, Robert Walpole, as leader of the Whigs, of the Commons, and of the Cabinet became real head of government; the Prime Minister. The Island Parliament is probably one of the oldest functioning Parliaments of the world.

Parliamentary system mandates formulation of policies for governance by the Parliament which are prepared\proposed by the executive and are placed before the representatives. Article 91 clearly speaks about the collective responsibility of the Cabinet. This responsibility is before the house of representatives and through them before the political sovereign. The essence of a Parliamentary system is that decisions affecting national life are taken by the Parliament and not by the kitchen cabinet or a handful of people. The council of ministers are responsible to the national assembly not as individuals alone but also collectively. In England by the middle of 19th century this doctrine became well established. It operates in all important parliamentary governments i.e. Australia, Canada, Ireland, New Zealand and Republic of South Africa. As our constitution has incorporated provisions from Iresh Constitution verbatim our constitution expressly embodies principles of collective responsibility. The government or cabinet is declared by the constitution to be responsible to the Parliament. The entire cabinet will normally accepts responsibility for the acts of any of its members so that the censure of one becomes censure of all. The term ‘collective responsibility’ is explained by Lord Salisbury as under :-

“For all that passes in the cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no right afterwards to say that he agreed in one sense to a compromise while in another he was persuaded by his colleagues … It is only on the principle that absolute responsibility is undertaken by every member of the cabinet who, after a decision is arrived at, remains a member of it, that the joint responsibility of ministers of Parliament can be upheld and one of the most essential principles of parliamentary responsibility established”.
(Mohammad Akram Sheikh)
Senior Advocate

… to be continued

Hartley and Griffith explained the position in regard to collective responsibility of the ministers to the legislatures thus “collective responsibility means that cabinet decisions bind all cabinet ministers even if they argued in opposite directions in cabinet. But this is to say no more than a cabinet minister who find himself in minority must either accept the majority view or resign. The team must not be weakened by some of its members making clear in public that they disapprove of the government policy. The object of collective responsibility is to take whole body of persons holding ministerial office collectively or vicariously responsible for such acts of others as are referable to their collective volition so that even if an individual may not be personally responsible for it, yet he will be deemed to have the responsibility with those who may actually be responsible for it. In other words, as the Council of Ministers is able to say in office only so long as it commands the support and confidence of a majority of members of the House, the whole Council of Ministers must be held to be politically responsible for the decision and policies of each of the ministers and of his department which could be presumed to have the support of the whole of the ministry. Hence the whole ministry will on issues involving matters of policy, have to be treated as one entity so far as its answerability to the House is concerned. The whole question of responsibility is related to the continuance of a minister or a government in office, and the only sanction for its enforcement is the pressure of public opinion expressed particularly in terms of withdrawal of political support by members of the legislature”.

We have a strange parliamentary democracy in Pakistan and it is for the political and social scientists to find appropriate terminology for the system as we proclaim it as a parliamentary system. Briefly speaking, there are basic functions which a parliament performs in any democratic politic.

1) It control the State Exchequer i.e. the power to levy taxes, duties and cesses vest with the house of representatives and likewise the expenditure is also controlled by the same body. In turn it means that without express and substantial participation of the representatives no State can substantially alter its debt obligations to other countries nor basic features effecting the countries economy trade, volume of trade, country’s imports and exports, borrowings and lendings. After emergence of democratic world the debt obligations to the national monitoring agencies and world bank were disowned by the democratically elected governments on the ground that dictators had not sought express consent of the nation/representatives before borrowing such money.

2. The second and the most functioning of a representative assembly is the legislative business. In the context of Pakistan the assembly is not sovereign in terms of the British Parliament and as stated earlier, it only represents an institution of subordinate law making i.e. subject to Quran, Sunnah and the basic covenants of the constitution entered into freely and voluntarily by the people of Pakistan at the time of its framing. This legislative business is also no less important.

3. The third important function of a parliamentary democracy is as submitted herein above to frame policies for national welfare, hold elaborate debate, solicit public opinion where the house feels bogged by circumstances beyond its handling, discuss inflation, value of money and issue of devaluation.

The participatory process in this pursuit can only ensure prestige and respect to a house of representatives which it may earn dependent on its inputs. Now let us apply the forenoted tests to our political polity.

Our parliament is used by the successive governments as a rubber stamp for budgetary approvals. It has seldom happened that major and drastic change proposed by some of its members claiming more sovereignty would succeed approval of the house. Under Article 73, the tax structure has to be regulated by the parliament and through a Money Bill but in Pakistan there is a parallel taxing system which is the norm and any deviation therefrom is an exception. In the budgetary proposals the executive shall propose 100% sales tax, excise duty and varied percentages of custom tariffs all items listed under its codes but the economy would be run by grant of exemptions on such levies by the parliament. therefore, the parliament is effectively used only for imposing taxes and the issue of regulating of the mechanism of its regulation rests in the hands of executive under corresponding provisions in the Customs Act, Sales Tax and Excise and Salt Tax Act of 1944. I happened to examine this issue in a case where Anwar ul Haq Ramay, the sitting Parliamentary Secretary of PML challenged the practice of such taxation system which erodes sovereignty of the parliament and the present government in its last tenure opposed such petition to tooth and nail. The judgment of the High Court upheld the point of view of the government that the government was competent to follow this peculiar practice of altering and regulating taxation structure. I may say it without any fear of contradiction that the National Assembly is there only to take the blame for imposing all or any of the taxes but the actual taxing system is run through the CBR. This on one hand it erodes the authority of the parliament and its control over the National Exchequer and on the other hand promotes and encourages the notorious and unfavour practices of exemptions. It has happened several times that an exemption notification would come out only to give economic benefits to a particular individual or to cause economic loss to another. The famous issue of withdrawing exemptions from Ingots and Billets produced by the Ittefaq Foundries during Benazir’s 1989 regime is a classic example of such practices. In the ensuing era similar charges were levelled many a times by Benazir against PML government but the parliament has never ever bothered itself to feel jealous of its legitimate powers being denied to it consistently, permanently and ridiculously.

The legislative powers of the parliament is another joke. During the last three and a half years regime of Peoples Party the country did not see any word mentioning legislative activity of the parliament. The country was run by the executive through repromulgation of ordinances. Number of Ordinances counted at a point of time when the previous government was still in office and listed a year thereafter was 203.

After a party has majority in the House it converts the sacred forum of parliament into an ordinance promulgation agency. Rules of Business are suspended to avoid debate and light of the reason might dawn upon the learned members elected for the purpose.  Recently we have seen two most vital and crucial amendments being amendment No. 13 and 14 to the Constitution of Islamic Republic of Pakistan in less than a couple of hour’s time. If somebody was to write the history of the breaches of the parliament’s privileges I am confident nobody except the government would be held guilty to the incidence that waters of the seven seas shall not be enough to wash off its hands.

The legislative business throughout the world is a very serious business. You are making an instrument which has to govern relation between citizen to citizen, and citizen to State. In this behalf, the points of view which are required to address may be numerous. A party may enjoy absolute majority and may be in a position to bulldoze legislature but such a legislative instrument would be a redundant and useless piece of paper if the august body did not consider the point of view of one person who could legitimately differ with the majority of sound and good reasons. Rule by majority inherently provides for respect for minority point of view. If you are 51 you may be able to pass  a bill but 49 are also citizens of this country and represent millions of political sovereign who may have a better and wiser perspective of what you may be thinking. To close oneself from wisdom and from reason is the worst sort of fundamentalism. It is a punishment which is inflicted by God in narrowing minds, hearts and visions of certain minds which not only deprives the one from best of advices and sharing of experiments but takes out the very essence of consultative process which are wholly religion as mandated to be followed even by the Profit (SOAS). A set back was suffered in ‘Uhed’ despite consultative process having thoroughly been undertaken but despite the apparent failure ‘Allah’ reemphasized the importance of such process in Surah_________.

If the legislature is to be rushed through and bulldozed in not less than half an hour why 140 million people of Pakistan have bothered to elect 217 members as their representatives for making law for them. Why cannot we have the legislative council established like the East India Act of 1730 which had vide its section 7 vested all civil and military power of Bengal, Bahar and Orissa in the Governor General and four council who u/s 36 of the same Act could legislate for all the cases for settlement of and u/s 37 Crown acting through one of its Secretaries was competent to dislike any such rules.

Honestly speaking as a constitutional law student it  absolutely frustrate me when I read constitutional documents of two to three decades back and find ironic similarity in the constitution of today and three hundred years before. From the Queen Elezbith Charter of 31.12.1760 to the East India Company and the subsequent legislative instruments of 1773, 1833, 1861, 1909, 1915, 1919, 1924 and 1935 the central power to make laws remained vested in few hands with a strong Governor General as a pivotal point and sitting in the driving seat you can like and dislike such legislative intruments. Crown had the power even to declare an enacted law as having not been so enacted.

It has only given me pain and anguish to draw a parallel world. Governor General in Council of East India days and the present representative sovereign parliament which is reducing its understanding to right its institutional character and strength to the days of ignominy and stainery. I am very happy hearing it from the legislatures that their privileges are even breached by anyone, that I am endeavoured to bring to their notice their basic and foremost privilege of participating in law making which has to effect the destiny of this country and this beleaguered nation. The Parliament did not file the privilege motions against the treasury benches without their right to expression, speech and participation in the legislative process is breached but such intimidations are made for those who in fact, wish the Parliament to be the supreme and the most powerful institution taking reigns of the country in its own hands.

The third and the last responsibility of the Parliament as discussed herein above is to formulate policies; to scrutinize work of the ministers and the cabinet as a whole. In the first place there are no rules of procedure whereunder the government is required to lay its policies before the parliament for their approval and in house debate. The government may decide to sell any part of the country like were the rumours regarding sale of Gawadar. Building of the free ways, motor ways or most much needed communication net work, yellow cabs scheme or any other policy even for the welfare of people. Even for the welfare of people is not required to be debated on the floor of the house under our parliamentary democratic polity. Except the legislative work and the money bill which has been dealt with in earlier part of this article this is a charity of the executive if they chose to bring about any item of the agenda for discussion. A member may give a call attention notice or may move a resolution for discussion on any point of grave instances or may ask any question but there are no mandatory rules required by the government to have the approval of the parliament for its policies that it considers best for the welfare of the country. This is a very strange parliamentary democracy.

In England import of Britain beef was banned by the European Union Countries on the suspicion of mad cow diseases. The British Parliament debated this issue for 43 days intermittently. I am confident that none of the members of our sovereign parliament know the volume of our trade with most of the countries whether it has declined or increased and what should be the optimum level of imports and exports of a particular item. This is none of the business of the parliament. Ministries do not present their reports before the house so as to be questioned as to what they have been doing in performance of their State duties. We have devalued our currency quite a few times not on the floor of the house but by a Press Conference addressed either by the Governor of State Bank or at the best Finance Minister. NO matter how much debt obligation of the nation would increase as a consequence of such devaluation.

Surrendering any part of the national sovereignty is a crime under the Pakistan Penal Code as also under the Constitution. This requires a serious examination as to whether can we surrender our financial sovereignty before the IMF and the World Bank but with great respect for the sovereignty and supremacy of the Parliament these are not the issues that which the parliament is fully concerned. They have a leader of whose total and complete wisdom they depend and fully protect and secure so long as he pilots the ship. When there is such a saved leadership why should they bother themselves with any disturbing thoughts processes. why they should lift this protection from themselves especially when they still can remain sovereign and supreme. Some Philosopher said “if two hundred people are thinking alone it means no body is thinking at all” but this again will cause a breach of parliamentary privilege like the saying of Abraham Lankan that “two men can never agree if choose to do so but two hundred donkey cannot disagree because they have no choice”. Our judiciary has developed the institutional strength and our action against the erosion of its power by successive governments and we can raise our heads and pride and bow them in gratitude before Allah that the institution of judiciary has had its right path for measuring and getting into the financial strength which it deserves but strength of the judiciary alone is not enough. It is high time that the Parliament should also develop an inherent institutional strength which can only come about if all its members apply their independent mind in the national welfare, devote their best passion and thoughts as to how this country could be rid from the menace of poverty, corruption, favoritism, nepotism, admiration and incompetence. Let there be no floor crossing and lota cracy but let there be a thankful and comprehensive deliberations within the parliamentary party as also on the floor of the house. Dissent and disagreement has brought the human ….. to the present level. It is not as disastrous, arbitrariness and caprice of one individual. Two dissenting individuals may survive the consequence of their disagreement but a country of 140 million people has suffered most not because of dissents but because of arbitrariness of our civil and military dictatorship. Let us join the era of democracy with the rest of the world. Let us have pity on our nation and on our posterity. Let us disagree but be willing to sacrifice to give our life for our dissenting partners right to disagree as that alone will being a real and true democracy in Pakistan.