Whether Parliament Is Supreme

WHETHER PARLIAMENT IS SUPREME WHETHER PARLIAMENT IS SUPREME? By Syed Muhammad Kalim Ahmad Khurshid, Advocate, Supreme Court Chief Justice Marshal has explained: "Legislature makes, the executive executes and the judiciary construes the law". Powers of Legislation has been conferred upon Majlis‑i‑Shoora under Article 70 of the Constitution while the Constitution can be amended by adopting procedure laid down in Articles 238 and 239. There are only two restrictions upon the Legislation, (i) If any law is inconsistent with the fundamental rights then the same can be declared void to the extent of inconsistency under Article 8 while second restriction is enumerated in Article 227 which is to this effect that any law cannot be enacted which is repugnant to the Injunctions of Holy Quran and Sunnah. The Federal Shariat Court under Article 203‑D of the Constitution can declare that any provision of law is repugnant to the Injunctions of Holy Quran and Sunnah and Parliament has to enact the law within specified period and ii any appeal is not preferred or the law is not enacted the said provision will cease to have effect. Article 239(5) clearly envisages that the amendment of the Constitution cannot be called in question in any Court on any ground whatsoever. The question of the supremacy of Parliament arose when the Judges of the Supreme Court were requisitioned and credibility of the Parliament was shaken due to the Press trial. Although Supreme Court of Pakistan had laid down in PLD 1962 SC 355 that the judicial powers can be exercised to modify the language and the terms of the statute while interpreting it. The said view was also approved in PLD 1969 SC 241. This power has been exercised in India to save the statutes and to bring them in line with the provisions of the Constitution. The abovesaid judgments have been discussed in a recent Division Bench Judgment reported as PLD 1997 Karachi 62 and it has been observed that the Courts in Pakistan undisputedly have the powers to strike down laws in case the same offends provisions of the Constitution and doctrine of parliamentary sovereignty which is rigorously prescribed in England has a very limited scope, instead of Parliament in Pakistan it is the Constitution which is supreme and it can be safely said that it is the judiciary which is supreme in Pakistan as opposed to the Parliament. While contrary view has been expressed by the Supreme Court of Pakistan in many judgments a brief resume of the said judgments is as under: ‑‑ PLD 1974 SC 180‑‑Wherein a manufacturer collected sales tax and paid to the department under mistake. Subsequently, it revealed that the articles are exempted from sales tax. The refund was refused by the department. The High Court answered the reference in favour of the manufacturer. The appeal was pending in the Supreme Court while section 30(a) was inserted in the Sales Tax Act and it was held by the Supreme Court to be a valid piece of Legislation and it was also observed that Legislature has a right to enact law. PLD 1973 SC 49‑‑It was laid down that Supreme Court has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is creature of the Constitution, it derives its power and jurisdiction from the Constitution and that it will even confine itself within the limits settled by the Constitution. The Court will protect and preserve it but the Supreme Court can claim that it has the right to interpret the Constitution. On page 70 it was further observed: "On the other hand it is equally important to remember that it is not the function of the judiciary to legislate or to question the wisdom of the Legislation in making the particular law". PLD 1983 SC 457‑‑In this case the Martial Law Administrator enforced Order No. 103 and President's Order No. 22 of 1972 whereby a company was dissolved, the same were assailed in writ petition which was accepted but the Supreme Court of Pakistan has laid down: "Mala fide has no nexus with the legislative powers and legislative measures and judicial inquiry cannot be initiated into modes of Legislation and legal justification for issuing legislative endorsement is solely within the competence of Legislature which cannot be reviewed". It was further observed that "If political safeguard in the Constitution are overlooked and Legislation is struck off on the ground of mala fide there is possibility of conflict of judicial powers with the political power of the Government and may entail destruction of functional organs of the State", thus the appeal was accepted. PLD 1992 SC 595‑‑The sentences were commuted by Mohtarma Benazir Bhutto, the same was struck out by the Lahore High Court, Lahore (Full Bench) on the touchstone of Objectives Resolution but the Supreme Court of Pakistan has laid down that Court has no jurisdiction to apply the test of repugnancy by taking into consideration the Objectives Resolution. It was further held that it is primary duty of the Court to adjudicate by reference to the positive law in a manner to advance certainty, clarity and precision to the application of law. It is further observed that the Constitution should be interpreted in such a manner to give effect to the spirit of the Constitution. The judgment of the High Court was set aside and case was remanded. PLD 1977 SC 397‑‑The validity of sub‑Article (4‑A) of Article 199 inserted through the Fourth Constitutional Amendment was challenged and it was argued that the said amendment has practically reduced judicial powers of the High Court but the same was held to be a valid piece of Legislation and the view of the Indian Supreme Court (AIR 1973 SC 1461) was not approved. It was firmly laid down that a Constitutional provision cannot be challenged on the ground of Nation's inspirations. It was observed in PLD 1995 SC 423 that, "a law should be interpreted in such a manner that it should be saved rather than destroyed. The Court leans in favour of upholding constitutionality of Legislation and it is, therefore, incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional. This power should be exercised only when absolutely necessary, and injudicious exercise of this power may result in grave and serious consequences". Supreme Court of Pakistan has observed in PLD 1976 SC 57: "The judiciary cannot declare any provision of the Constitution to be invalid or repugnant and validity can only be challenged if it is adopted in a manner different to the one prescribed by the Constitution". PLD 1997 SC 11‑‑‑The dissolution of Local Council was challenged, ultimately the appeal was accepted by the Supreme Court on 26‑6‑1997 and order of dissolution was declared to be without lawful authority but the Government of the Punjab repealed the Local Government Ordinance, 1979 on 27‑6‑1997. The said Repeal Act was challenged but the Supreme Court of Pakistan has observed: "It is evident that the Court is not at liberty to inquire into the modes or mala fides on the part of the Legislature. Once a statute is competently made the Court is not entitled to question the wisdom or fairness of the Legislature. No Court can refuse to enforce a law competently made on this ground that the same will nullify the effect of judgment. In this case Mr. Iftikhar Gilani, Counsel for the petitioner has not challenged the validity of the legislative process during the course of his arguments. PLD 1997 SC 426‑‑The validity of 8th Constitutional Amendment was challenged in this petition. It was held by the Supreme Court that although Objectives Resolution is the substantive part of the Constitution but it is not open to the Court that a provision of the Constitution can be struck down on the ground of its being violative of the Objectives Resolution or of national aspiration or higher ethical notion or of philosophical concept of law. It was further held that constitutional provisions cannot be struck down. This concept is holding the field in Pakistan from very beginning that a provision of the Constitution cannot be struck down. In all the written Constitutions provisions for amendment have been incorporated. The object being to keep the Constitution alive and in line with the changed circumstances. Keeping in view the will and demand of the people, the Court can only appreciate that amendment has been duly proposed, adopted and assented in the manner required by the Constitution. The doctrine of basic structure denies the right to the sovereign people acting through its elected Parliament to implement the policies demanded by the people. It goes without saying that judiciary can resist the will of the people reflected, through the democratic process and free elections. It is not the function of the Court to invent limitations where there are nothing. Parliament is the guardian of the rights and liberties of people. PLJ 1995 Mag. 149. From the abovesaid resume of law, it is apparent that every organ should exercise the powers according to the Constitution which is supreme and any over-taping and overlapping is unwarranted. Any threat to the Parliament to refrain from Legislation may fall within the ambit of Article 6 of the Constitution of Islamic Republic of Pakistan, 1973.