Zia-ur-Rahman Tajik
Supremacy of the Constitution means that no one is above the law irrespective of his social status and position in society and are equal before the law. In case of contradiction between the constitution and the ordinary law, the provision of the constitution would prevail.
Constitution is the supreme law of the land. It limits all organs of the state to perform their functions and exercise their powers within the frontiers prescribed by the constitution. The constitution takes precedence over all other laws and ensures the smooth running of the state. The constitution protects individual rights. Limits the parliament from legislation in contravention of fundamental rights. protects people from the arbitrary exercise of power by those who are in power.
Supremacy of the constitution keeps check and balance on the govt power. Prevents its abuse. Defends human rights. promotes rule of law and order in society. Ensure the independence of the judiciary. Protects citizens from all kinds of punishment except for established infringements of the law. For supremacy of the constitution existence of a written constitution is essential which describes an obvious distinction between constitutional and ordinary law.
Constitutional supremacy creates a national govt consisting of an executive, a judicial, and a legislative organ. The constitution divides power between the federal and provincial Govt. The opposite of constitutional supremacy is the supremacy of the parliament. In parliamentary supremacy, the parliament can legislate and amend any law without being questioned by any authority and no court can declare it unconstitutional or illegal. Parliamentary supremacy also does not make any difference between ordinary and constitutional law. Parliamentary supremacy is in vogue in the United Kingdom.
In Pakistan constitution is supreme and provides functions for all the three organs of the state. The legislature has the power to legislate and enact laws both on a constitutional and a sub-constitutional provision. under article 141 of the constitution, parliament can promulgate laws for the whole of Pakistan or part of it and under article 142 of the constitution parliament exercises exclusive jurisdiction to make law concerning any matter in the federal legislative list.
The executive authority of the federation is exercised by the federal govt in the name of the President under article 90 of the constitution and implements and enforces the law. The establishment and jurisdiction of the courts are provided by the Article 175 of the constitution. The main function of the judiciary is the dispensation of justice and interpretation of the law. Redressal of grievances of litigants under the command and mandate of the constitution and Acts of the parliament. Supreme Court also enjoys suo moto jurisdiction under article 184(3) and all the judicial and executive authorities under article 190 of the Constitution are bound shall act in aid of the supreme court.
But the doctrine of separation of power is debatable in Pakistan, unlike the American constitution where 3 organs of the state independently and without any interference exercise power. Article 1 of the American constitution expressly vests all the legislative power of the state on congress. under article 2 the executive powers are vested in the president and Article 3 confers the judicial power on the Supreme Court and such other lower courts as may be created by the American legislature.
The doctrine of separation of power is not strictly implemented in its true perspective in Pakistan for example the President and Governer under articles 89 and 128 have the power to issue ordinances having the same force and effect as an Act of the parliament and Article 260(2) of the constitution is also clear on the subject.
In Pakistan supremacy of the constitution is the basis of Pakistan’s constitutional and political system. Parliament exercises supremacy within the jurisdiction assigned to it by the constitution. Parliament has the power to amend the constitution under article 238 of the constitution and the said amendment also cannot be challenged on any ground as per article 239(5) of the constitution. The parliament has no power to change the basic structure of the Constitution. A basic structure doctrine is a form of judicial review that is issued to test the legality of amendments in the constitution. The basic structure doctrine was adopted by the Indian Supreme Court in Kasavananda Bharti versus the state of Kerala case (AIR 1973 SC 1461).
In that case, it was held by the Supreme Court of India that Parliament has the power to amend the constitution but cannot change its basic structure. The basic structure of our Constitution is a parliamentary form of Govt, democracy, federal structure of the state, independence of judiciary, fundamental rights, impartial sovereign and amendment by 2/3 majority.
It was held by the August Supreme Court of Pakistan that the constitution is supreme because parliament is the creation of the constitution and parliament has no inherent power of amendment, amendment Power is given to a limited extent and can not change its basic structure and identity. (PLD 2009 SC 879 relevant page is 1174). The basic structure doctrine is not accepted by the Supreme Court of Pakistan in the famous case of the District Bar Association Rawalpindi versus the Federation of Pakistan etc (PLD 2015 SC 401).In that case, the majority of honourable judges avoided to owned the basic structure doctrine instead they used the expression basic or silent feature.
Supremacy of the constitution provides a safeguard from all kind of hardships, and also provide a guideline for running the govt and governing the state. It’s our misfortune that to date no proper heed was paid by the institution of the state to the provision of the constitution for the progressive development of the motherland. constitutional supremacy also provides a solution to all problems subject but needs strict implementation of its provisions in letter and spirit.
Supremacy of the constitution also restrains every institution of the state from interference in the affairs of other institutions. Due to the interference of the institutions in each other’s affairs inhabitants of Pakistan are affected economically, politically and socially. The present worst economic crises, degradation and exorbitant increase in price hike is the worst example of illegal and unconstitutional interference of institutions in each other affairs.
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