The Leader of a People Is Their Servant

The ethos of humility and service pervades the timeless prophetic principle of governance encapsulated in the well known saying: “The leader of a people is their servant.” Any holder of public office who draws a salary from the State exchequer and enjoys the privileges of office must humbly recognise that he or she is a paid servant of the people, entrusted with serving them obediently and respectfully. The State is the mouthpiece of the people, not their master. The three organs of the State, namely the Executive, Parliament, and the Judiciary, are merely organs of the State. They cannot alter the will of the People; only the People can do so. All three organs are creations of the People, established according to their will, as expressly stated in the Preamble.

The Preamble is framed as a form of power of attorney granted by the People to those entrusted with governance. Simply put, the People are supreme, and the State comes after them. The functionaries of all three organs receive their salaries, privileges, and pensions from the People. However, this constitutional arrangement appears to have been inverted by functionaries who, through the assumption of power, have transformed themselves from public servants into masters of the People. A heartless and insensitive State becomes a hurdle, rather than an aid, in improving and easing the lives of the People. It is the carefully structured and considered wording of the Preamble that has variously been described as the “grundnorm” or the “key” to understanding the Constitution. A noteworthy aspect of the Preamble is that “it has to be read for the purpose of proper interpretation of the Constitution in order to find out as to what scheme of governance has been contemplated” for Pakistan.

The relationship between the People and their instrumentalities is clearly expressed in the Preamble through the statement that the “authority to be exercised by them” is “a sacred trust.” The responsibility of the representatives of the People, as fiduciaries, is to adhere faithfully to the plan laid down by the People and to fulfil the fiduciary obligations they owe to the People of Pakistan. Furthermore, the Preamble states that “it is the will of the People of Pakistan to establish an order.” Similarly, in the case of Maulvi Tamizuddin Khan, the Constituent Assembly was described as “a body representative of the will of the people of Pakistan in relation to their future mode of Government.”

The People were placed above the State and their chosen representatives as a constitutional principle. The will of the People, embodied in the Constitution, prevails over the will of the instrumentalities created by the People to serve them and obey their commands. Therefore, the Preamble acts as a key to understanding the Constitution, particularly in defining the legal relationship among the People, the State, and the chosen representatives of the People. Part II of the Constitution sets out the Fundamental Rights of the People and the Principles of Policy to be followed by the State. For the purposes of Part II, the term “State” includes the Federal Government, Parliament, Provincial Governments, and Provincial Assemblies, but does not include the Judiciary.

The significance of this definition is that, while the Federal and Provincial Executives and legislatures are responsible for safeguarding the Fundamental Rights of citizens and complying with the Principles of Policy, the Judiciary is responsible for maintaining a check on the State. This definition imposes a duty upon judges and courts, as trustees of the People, to ensure that the State remains obedient to the will of the People. The Constitution empowers the courts “to punish any person who disobeys the process of the Court in any way or disobeys any order of the Court.” Under our constitutional structure, the Executive is responsible for running the affairs of the State. However, the courts have been granted constitutional authority to direct State functionaries to perform their duties in accordance with the law.

When the Judiciary loses or compromises its independence, it fails in its duty to keep the Executive and Parliament obedient to the Constitution. Moreover, it should not be disputed that, in a responsible democratic system, public opinion and free elections that allow such opinion to be expressed serve as checks on the Executive and Parliament. One of the primary responsibilities of the Executive is to protect and secure the life and liberty of every citizen. Yet this constitutional duty is not always fulfilled, particularly in cases involving unlawfully detained and missing persons. An order of the Supreme Court stated:

“It is evident that 34+1=35 missing persons are in custody of the Army. Therefore, the Army authorities are bound, under the law, to produce them before the Court of law. They have no authority to retain their custody as such.”

In the same case, the Court declared:

“Army authorities in PATA have removed 35 persons from Malakand Internment Centre, out of which only 7 persons have been produced. As far as the rest of them are concerned, their whereabouts would only be known to the Army authorities. They had no authority to detain them illegally. The Chief Executive of the Federal Government, the Chief Executive and the Governor of the Province of KPK are directed to immediately proceed with this case, ensure the recovery of these persons within seven days, and submit the report to the Registrar for our perusal. The persons who are responsible for the same should be dealt with strictly in accordance with law.”

The Executive and its agencies, upon whom the responsibility for securing these rights rested, failed to fulfil their duties. If the State itself becomes lawless and perpetrates tyranny and violence against its citizens, it should not surprise anyone when citizens respond adversely to the State. The State must act as an example, and its agencies must remain law abiding, if a law abiding citizenry and society are to be expected. The Preamble makes it clear that Parliament is a grantee of authority and a fiduciary of the People. Just as a delegate cannot exceed the terms of the authority granted to him or her, Parliament does not have the power to make constitutional amendments that manifestly defy the commands given by the People.

In exercising its powers, Parliament must not encroach upon the domain of the Judiciary or infringe upon the rights of the People, including their right to the enforcement of democratic principles. If Parliament attempts to do so, the People have the authority to check such transgressions. Even if a Member of Parliament, including the Prime Minister, begins violating the Constitution by misusing the public exchequer or continues to do so after being directed by the courts to stop and return the misappropriated funds, the courts possess the authority entrusted to them by the People to intervene.

The Preamble clearly states that “the independence of the Judiciary shall be fully secured,” demonstrating that the Judiciary is not subservient to Parliament. It is not the fault of the Constitution that its principles remain confined to paper. Rather, the problem lies in the failure to implement those principles through a system of governance that recognises the primacy of the People, for whose benefit and service the organs of the State were created.

Another question concerns the emphasis placed on legal theories and doctrines originating in foreign jurisdictions, particularly the United States, the United Kingdom, and other countries, that do not necessarily have a legal foundation in Pakistan. Selecting a foreign theory and transplanting it into Pakistan may be counterproductive. Medical science teaches us that the human body may reject a mismatched organ transplanted from another body. Similarly, every legal theory may be challenged by a more rational or opposing theory.

For example, various versions of social contract theory have been forcefully criticised by Amartya Sen in The Idea of Justice. Another theory repeatedly invoked in constitutional litigation in Pakistan is A. V. Dicey’s theory of parliamentary supremacy or sovereignty. It is wholly inappropriate to import this theory into Pakistan’s constitutional context. This theory has also lost some of its significance within the British constitutional context. As one judge in England observed:

“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen as out of place in the modern United Kingdom.”

Parliamentary sovereignty does not correspond with the aspirations of the People of Pakistan, who embraced the supremacy of the “will of the People” as crystallized in the Constitution. As stated in a judgment:

“There is no justification in our dispensation for muddying the crystal and undefiled waters of our constitutional stream with the alien and antiquated nineteenth century Diceyan concept of parliamentary supremacy.”

The Diceyan concept has little relevance in Pakistani jurisprudence, except to highlight the contrast between the legal systems of the two countries. Nevertheless, Pakistan continues to have individuals who attempt to imitate the English system and use the language of a foreign jurisdiction as the language of law, despite the considerable gap between theory and unchecked practice. Under our constitutional system, it is the will of the People, not that of the State or its organs, that is supreme. However, the State has become dominant over the People, contrary to the Constitution. A government of laws cannot be established or maintained through powerless courts and defiant or noncompliant public functionaries.

All organs and instrumentalities of the State of Pakistan, together with their functionaries, must recognise that they are paid servants of the People, not their masters. They do not possess absolute or sovereign power over the People. Those who plan and determine the fate of the People, some openly and others from behind thick veils, must learn to become humble servants of the hands that feed them.

Bibliography:

1. Mahmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426.
2. Article 9 of the Constitution of Pakistan, 1973.
3. Human Rights Case No. 29388-K of 2013, PLD 2014 SC 305.
4. Article 204 of the Constitution of Pakistan, 1973.
5. Maulvi Tamizuddin Khan v. Federation of Pakistan, PLD 1955 Sindh 96, 103.
6. Preamble, Constitution of Pakistan, 1973.
7. Amartya Sen, The Idea of Justice, Penguin, 2010.
8. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, Macmillan & Co., 1965, pp. 39–138.
9. Jackson v. Her Majesty’s Attorney General [2005] UKHL 56, [102].
10. Muhammad Azhar Siddique v. Federation of Pakistan, PLD 2012 SC 774.