With the rising incompetence of federal Governments, both present and past, and the falling standards of governance on both a federal and provincial level in general, the people of Pakistan have started wondering whether a change of system will bring them some long-sought-after relief. For this purpose an unknown outfit named “Hum Watan Party” filed a petition in the Supreme Court of Pakistan, seeking an order for a referendum to be held on whether the people wanted a Presidential system or Parliamentary system. Such a case was filed previously, last year, and the petition was dismissed.
Social media erupted with many stating that this is an initiative of the establishment in consolidating its power and to bring back dictatorships whereas an equal number declared that the current system has failed and a proper change in the system is needed for Pakistan to function properly. Conspiracy theorists held that this is part of the forthcoming, yet never-to-have-arrived, change.
The question, then, remains as to whether the petition can bring forth such a change? And can we ever leave the parliamentary system? The answer to both is a blunt no.
The petition itself tried to create a long road that the Supreme Court of Pakistan, empowered by Article 184 (3), can declare that the system is an infringement of the fundamental rights of the people of Pakistan and call for the referendum based on the implementation of those rights. The notion is legally flawed since the said article does not confer the Supreme Court with the power to bring forth referendums nor to declare the system itself as an infringement of the fundamental right. The said article itself creates a limit that the power within 184(3) could be used on the fundamental rights enshrined within the Constitution – and so, declaring a system defunct and an infringement on the rights of the people would be to act in a manner outside the borders of the Constitution 1973, which the Supreme Court of Pakistan is not empowered to do. The Supreme Court declared its power in the famous case of Imran Khan and Others vs Election Commissioner of Pakistan and Others PLD 2013 SC 120 where the court held the following:
“Thus, in the light of the law laid down in the aforesaid cases, it is clear that this Court, under Article 184(3) of the Constitution, not only has the jurisdiction to pass appropriate orders in the cases involving questions of public importance with reference to enforcement of fundamental rights guaranteed under the Constitution but is also empowered to ensure fulfillment of the command of the Constitution of holding elections honestly, justly, fairly and in accordance with law.”
So we see that Article 184(3) works within the ambit of the Constitution of Pakistan and a supra-Constitutional action is not within the powers of the Supreme Court or those of the Parliament.
Secondly the act of a Referendum is not something the Supreme Court of Pakistan is empowered with, since such a power was under the control of the President in Article 96A but was removed in the 18th Amendment of 2010 and is now only located in Article 48 Section 6 which states:
“If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered .by either 'Yes' or 'No'.”
So the power of such is vested within the Parliament and not with the Supreme Court nor within the fundamental rights of the people. The ‘Right to Vote’ and the ‘Right to form Political Parties’ is enshrined but referendums are not part of the fundamental rights. The people who support such an act or revolution need to ask the honourable Prime Minister as to why he himself hasn’t called for such a referendum. After all, it is most definitely part of his power to place such a request to the parliament and get the wheels turning.
The judgment of the Supreme Court should be the dismissal of the petition. Now coming to the latter on whether we can leave this system or not. The founding fathers enshrined the Parliamentary system within the famous Objectives Resolution which stated;
“WHEREIN the State shall exercise its powers and authority through the chosen representatives of the people”
The above was interpreted that the executive power shall be vested within the chosen representatives of the people. This refers not to a single representative i.e. the President but the plural 'representatives,' meaning the parliament which shall hold the executive powers and shall elect amongst themselves people who shall be conferred with such powers and responsibilities i.e. President and Prime Minister. In the landmark case of “State vs Zia Ur Rehman PLD 1972 SC 49,” the Supreme Court of Pakistan held that the Resolution was the grounds for the constitutional framework of the country and it would always have a strong impact on the constitution of the country. The Court stated that in this case the Resolution had held that the power of the people would be in the hands of the legislative assembly along with the declaration that a court from the legal framework cannot declare that legal framework as defunct or abrogate it entirely, since such a court must work within the ambit of the said framework.
The Resolution was made part of the Constitution as Article 2A. The Preamble of the Constitution of 1973 also enshrined the Parliamentary form of democracy with the words:
“Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.”
Here, we can see that the representatives of the National Assembly were given the executive powers by the people of Pakistan and this is indeed part of the Preamble. And the Preamble is the soul of Constitution, since it reveals the mindset of the framers. The Constitution enshrined within itself the parliamentary system.
Now the enshrining of the parliamentary system through the judgments of the Supreme Court of Pakistan was done in the following cases:
“Mehmood Khan Achakzai and Others vs Federation of Pakistan and Others PLD 1997 SC 426,” which brought forth the question of the basic structure of the 1973 Constitution. The case defined the Objectives Resolution and the Preamble of the Constitution. It held that the structure of the country is based on Parliamentary system and it shall be Parliamentary system blended with the provisions of Islam. The question rose on the powers of the President in line with Article 58(2)(b) where the court held that it did not alter the system itself and only provided a president with executive power with checks and balance which can be found in other parliamentary democracies. The court held that Pakistan was always a parliamentary democracy and created a bar on the legislative that it cannot amend the basic structure of the Constitution 1973 which was Parliamentary democracy, independence of judiciary and Federalism.
“Syed Zafar Ali Shah and Others vs General Pervez Musharraf and Others PLD 2000 SC 869,” which held the order of the PLD 1997 SC 426 and again held that the system of the state will be parliamentary and barred the legislative on passing any amendment that would change such. The most recent of such a case was PLD 2013 SC 1” which again held that the government structure of the state is Parliamentary and it cannot be changed.
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Rather than being a party to or giving the limelight to such individuals or parties who take such positions to gain attention, we must all ensure working with the system and bringing appropriate change from within.
The problem in Pakistan is not the system itself but all of us who are a part of it. We await Messiahs and new systems but fail to understand that whether it be Presidential or Parliamentary, it is the people who make the country and in any system. The only ones that can bring proper change are the people: through self-introspection and bringing all those that are incompetent or corrupt to justice. This, regardless of whether the perpetrator is a politician, bureaucrat, judge or general.