Supporters of the ruling PDM ( Pakistan Democratic Movement ) in Pakistan are saying that the verdict of the Pakistan Supreme Court ordering elections to the Punjab Provincial Assembly to be held on 14th May need not be followed, since the Pakistan Parliament, which is dominated by the PDM ( members belonging to Imran Khan’s PTI have resigned from it ) has by a resolution rejected it, and Parliament is supreme in Pakistan. Is this contention and the resolution of Parliament valid ?
I submit they are not.
Parliament is no doubt supreme in countries which have an unwritten Constitution like the UK. But in countries which have a written Constitution, like the USA, India and Pakistan, it is the Constitution which is supreme, not Parliament. So if an act of Parliament violates the Constitution it is null and void.
This principle was first enunciated in the famous decision of the US Supreme Court in Marbury vs Madison in 1803 ( 5 US 137 ), and has been followed ever since.
In this decision Chief Justice Marshall, speaking for the Court, held that in the event of conflict between the Constitution and statutory laws passed by Congress ( the American Parliament ), the constitutional law must prevail, as the Constitution is the supreme law of the land..
Chief Justice Marshall said that denying the supremacy of the Constitution over Congress’s acts would mean that courts must close their eyes on the Constitution, and see only the law made by the legislature. He observed :
” Those, then, who controvert the principle that the Constitution is to be considered as the paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the Constitution is entirely void, is yet obligatory. It would declare that if the legislature does what is expressly forbidden by the Constitution, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature an omnipotence, while in the same breath it professes to restrict its powers. It is prescribing limits to the powers of the legislature, and yet declaring that those limits may be ignored at pleasure by the legislature “.
In what has become the most famous and frequently quoted line of his judgment, Marshall wrote:
” It is emphatically the province and duty of the Judicial Department to say what the law is ”.
Now coming to the verdict of the Pakistan Supreme Court, the Court only directed that a constitutional provision, Article 224(2) of the Pakistan Constitution, be followed. That provision states :
‘‘ When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls ”.
The Punjab Assembly had been dissolved on 18th January. Hence fresh elections had to be held by 18th April. But the Election Commission of Pakistan, obviously under PDM pressure, postponed the Punjab elections to 8th October, thus flagrantly violating Article 224(2). This decision of the ECP was rightly struck down by the Pakistan Supreme Court. Due to certain reasons elections could not be held by 18th April, hence the Court directed that they be held on 14th May, instead of 8th October as fixed by the ECP. What exception can be taken to that ?
The PDM Govt knows it will be wiped out if elections are held, as Imran Khan is regarded honest by most Pakistanis and is immensely popular in Pakistan ( as opinion polls indicate ), while the PDM leaders are regarded by the public to be a gang of dacoits, who have siphoned off huge amounts of money from Pakistan and stacked it abroad ( the names of some of its leaders feature in the Panama Papers ). Hence the PDM is adamant that early elections be not held as directed by the Supreme Court, and this is the real reason why the Pakistan Parliament, which they control, passed the aforesaid resolution.
But this resolution rejects the decision of the Court, which as said before, was only seeking to enforce Article 224(2) of the Constitution. This is like a team in a football match saying that it does not accept the decision of the referee awarding a penalty, or the decision of the linesman holding a player offside. How then can the match be played ? It is like a child playing a chess game throwing the chess board and the pieces away when he finds he is losing.
If court decisions are not accepted it will result in chaos, jungle raj, and even civil war.
The resolution of the Pakistan Parliament is clearly null and void.