State and Sovereignty

SYNOPSIS

1.1 Holland ................................................... 1 1.2 Willoughby ............................................ 1 1.3 Bentham ................................................. 1 1.4 Salmond.................................................. 2 1.5 Lahore High Court .............................. 2 1.6 The Constitution of the Islamic Republic of Pakistan....................................... 2 2.1 2.2 Population ............................................. 2 Territory ................................................ 3

Definition of State ........................... 1

2.3

Government .......................................... 3

3.1

2.3.1 Trichotomy of powers ....... 3 2.3.1.1 Legislature ................... 4 2.3.1.2 Executive ...................... 4 2.3.1.3 Judiciary........................ 4 Quadchotomy of power ................. 4 3.1.1 The concept of Sovereignty in Pakistan ............................................... 5 Obedience to authority ................. 5 Balance of power ............................. 6
Sovereignty ........................................... 5

ELEMENTS OF STATE ..................... 2 4 5

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1 Definition of State
Different definitions of State have been given by various writers which are, inter alia, as follow; 1.1 Holland

Holland defines State as the numerous assemblage of human beings, generally occupying a certain territory amongst whom the will of the majority or of an ascertainable class of person, is by the strength of such a majority or class, made to prevail against any of their number who oppose it. 1.2 Willoughby

Willoughby writes that the State exists where there can be exercising control over the social actions of individuals and groups of individuals and itself subject to no such regulation. 1.3 Bentham

Benthem writes: Where a number of persons (whom we may style subjects) are supposed to be in the habit of paying obedience to a person or an assemblage of persons, of a known and certain description (whom we may call governor or

Adil on Jurisprudence
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Governors), such persons altogether (subject and Governors) are said to be in a state of political society. 1.4 Salmond

Salmond defines a State with reference to its essential functions as a society of men established for the maintenance of order and justice within a determined territory, by way of force. 1.5 Lahore High Court The Honourable Lahore High Court held State has been defined as a people organized for law within a definite geographical territory. It is also said that they decided to so organize as they were fed up of the law of the jungle, i.e., might is right. Since the basis of a state is organization of a people for law, it follows as a corollary that as independent body having the inalienable right to interpret such law must be brought into existence and that its pristine glory should be maintained.1

1.Population

2.Territory

State

4.Sovereignty

3.Government

1.6 The Constitution of the Islamic Republic of Pakistan The definition of State is given under the Article 7 Part-II of The Constitution of the Islamic Republic of Pakistan, 1973 with reference to the fundamental rights and principles of policy in the following words; 7. Definition of State.In this part, unless the context otherwise requires, the State means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assemble, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess. The above definition of State provided in the Constitution is similar with the definitions given by Bentham [ 1.3], Holland [ 1.1].

2 ELEMENTS OF STATE
There are four certain essential elements of the State, i.e.; (i) population; (ii) territory; (iii) government; and (iv) sovereignty. 2.1 Population The first essential element is population. There can be no State without a people. The population of a State may be large or small.

Zeeshan Hussain Adil Advocate High Court, Lahore

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State and Sovereignty

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 2.2 Territory Another essential element of State is its territory. Wandering people cannot constitute a State. It is only when they settle down on some definite territory that they constitute as State. The size of the territory of a State is not very material. It may be large or small and there are both kinds of states. Salmond does not regard territory as an essential element of the State to quote him : The territory of a State is that portion of the earths surface which is in its exclusive possession and control. It is that region throughout which the State makes its will permanently supreme and from which it permanently excludes an alien interference. The exclusive possession of a defined territory is a characteristic feature of all civilized and normal States. It is found to be a necessary condition of the efficient exercise of government functions. However, it is not essential to existence of a State. A state without a fixed territorya nomadic tribe for exampleis perfectly possible. A non-territorial society may be organized for the fulfillment of the essential functions of government and if so, it will be a true State. However, such a state of affairs is so rare that it is permissible to disregard it as abnormal. It is with the territorial State that we are concerned. 2.3 Government Another essential element of the State is Government which is the machinery through which the administration of a country is carried on. The government is the outward manifestation of a State. It is an organ of the community. There can be no State without a permanent and definite organisation. A temporary and casual union of individuals does not constitute a State. Salmond writes: Political or civil power is the power vested in any person or body of persons of exercising any function of the State by his or their decision to set in motion the forces of the State for a particular purpose. All the persons with such power considered together constitute the government of that State and are the persons through whom the State as a whole acts. The government is divisible into three great departmentsThe legislature, the executive and the Judiciary. All the three organs of the State exercise their power and perform functions such division of powers is called trichotomy of power. The Constitution of the Islamic Republic of Pakistan, 1973 envisages trichotomy of powers. 2.3.1 Trichotomy of powers

The Constitution envisages the trichotomy of powers amongst three organ of the State, namely the legislature, executive and the judiciary. The legislature is assigned the task of law making, the executive to execute such law and the judiciary to interpret the laws. None of the organ of the State can encroach upon the field of the Zeeshan Hussain Adil Advocate

Majlis-eshoora

Judiciary

Executive

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 others.2 2.3.1.1 Legislature Legislature is the first and supreme organ of the State which makes laws for the State. It is paramount duty and obligation of first organ of the State to perform duties for the welfare of the people of Pakistan.3 In state level legislation is the function of the Majlis-eShoora (Parliament) under The Constitution of the Islamic Republic of Pakistan, 1973. Majlis-e-Shoora is not supreme as the parliament in England. Majlis-e-Shoora might not be able to do certain things, such as, its inability to legislate against Fundamental Rights, the injections of Islam as laid down in the Holy Quran and Sunnah[ Article 227], etc. Therefore, Majlis-e-Shoora is not supreme over everything else as is put in common parlance, or as it is said of the Parliament of the United Kingdom, rather it is independent of other organs of the State, but it certainly operates within certain parameters.4 2.3.1.2 Executive The second organ of the State is Executive; it is also considered as the hands of the State through which things are executed. The main function of this organ is the implementation of law. 2.3.1.3 Judiciary The function of the judiciary is the interpretation of the law. While interpreting the law judiciary has to protect the Constitution i.e. will5 of the people. For example under Constitution the Majlise-Shoora cannot legislate against Fundamental Rights, the injections of Islam as laid down in the Holy Quran and Sunnah[ Article 227], etc.6 The Judiciary declares what is lawful and what is not; as well as it is the duty of the judiciary to uphold the independence of judiciary and rule of law7. 2.3.1.4 Quadchotomy of power According to Justice Ijaz Ahmed Ch. there are four organs [of the state] which are as follows; (1) Legislature (2) Executive (3) Judiciary (4) People of Pakistan. He discussed the power of the people with reference to the Restoration of the Judiciary Movement.8
People of the State Majlis-eShoora

Executive

Judiciary

Zeeshan Hussain Adil Advocate High Court, Lahore

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State and Sovereignty

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Restoration of the Judiciary Movement is the reaction of the act of 03 November, 2007 when one organ of the State i.e. Executive illegally and unconstitutionally sacked the other organ of the State i.e. Judiciary; that unconstitutional act was against the will of the nation. Consequently the people through peaceful protest showed their power and got the sacked organ i.e. Judiciary restored to its original position. The people of the state exercise their powers either through vote or through revolt; the former is the peaceful and the latter is the dreadful. Such exercise of power by the people in a political society may be called quadchotomy of power. 2.4 Sovereignty Another essential element of the State is sovereignty. According to Salmond: Sovereignty or supreme power is that which is absolute and uncontrolled within its own sphere. It is this element of sovereignty which distinguishes the State from government. The sovereign is supreme both externally and internally. There is no power above it. 2.4.1 The concept of Sovereignty in Pakistan

The concept of sovereignty is provided in the preamble and article 2A (The Objective Resolution) of The Constitution of the Islamic Republic of Pakistan, 1973; whereby Sovereignty over the entire Universe belongs to Almighty Allah alone9; and such Sovereignty or Supreme power is to be exercised by the people of Pakistan within the limits prescribed by Him; such authority is a sacred trust. The Islamic concept of Sovereignty is given in Quran in the following words; Say "In Whose Hand is the sovereignty of everything And He protects, while against Whom there is no protector, if you know." 23:88 And to Allah belongs the sovereignty of the heavens and the earth, and to Allah is the return. 24:42 And to Allah belongs the sovereignty of the heavens and the earth, He forgives whom He will, and punishes whom He will. And Allah is Ever OftForgiving, Most Merciful. 48:14 Say "To Allah bleongs all intercession. His is the Sovereignty of the heavens and the earth, then to Him shall be brought back." 39:44

3 Obedience to authority
The Constitution of the Islamic Republic of Pakistan, 1973 requires that the State shall exercise its powers and authority through the chosen Zeeshan Hussain Adil Advocate Page 5

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 representatives of the people.10 Every organ of the State exercises that powers and authority with limits prescribed by Him11 (Almighty Allah). Hence the law remains supreme in the State. Supremacy of law defined with Divine Command in the Holy Quran 4:59 O ye who believe! Obey Allah and obey the apostle, And those charged with authority among you. 12 Therefore, the people of the state are under legal obligation to obey those charged with authority among them.

4 Balance of power
In Islamic Republic of Pakistan people are under obligation to exercise the sovereign power which delegated to them by the Al-mighty Allah. In democratic system based on the injunction of Islam every person individually and collectively exercise the sovereign power. Making of laws, their implementation and their interpretation are three separate functions performed by three independent delegates of the Sovereign in respect of its own particular field. Every organ the State is required under the law to exercise its power without encroaching upon the lawful authority or domain of the other. The concept of balance of power; 1400 years ago Almighty Allah ordained through His last Prophet Hazrat Muhammad (S.A.A.W) and The Holy Book Al-Quran vide Surah Rehnman verse Nos. 5 to 9 to the following effect:the sun and moon move along their computed courses. The shrubs and the trees prostrate in adoration. He has raised the heaven on high and created the balance; dont ever tamper with this balance. Therefore, you also establish weight with justice and do not give less measure. 13 Balance must be maintained in each and every sphere of life otherwise destruction is must. As mentioned above once the constitution machinery has broken on account of interference by one of the organs into the sphere of the other organs, then destruction is must....our constitution is based on trichotomy, i.e. Legislature, executive and judiciary.14

(Yusuf v. The West Pak Bar Council, 1972) PLD 1972 Lahore 404 (Dr. Mobashar v. FOP, 2009) at 691 (SHCBA v. Fed. of Pak., 2010) at 369 (Dr. Mobashar v. FOP, 2009) at 798 ref. Messrs Electric v. Govt. of Pak. 1989 PTD 42

And whereas it is the will of the people of Pakistan to establish and order; See Preamble of the Constitution of the Islamic Republic of Pakistan, 1973
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(Dr. Mobashar v. FOP, 2009) at 691

Zeeshan Hussain Adil Advocate High Court, Lahore

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State and Sovereignty

(Commodore v. Fed. BISE, 2009) (SHCBA v. Fed. of Pak., 2010) at 369 Preamble of The Constitution of the Islamic Republic of Pakistan, 1973. Article 2A Objective Resolution of The Constitution of the Islamic Republic of Pakistan, 1973. Article 2A Objective Resolution of The Constitution of the Islamic Republic of Pakistan, 1973. (SHCBA v. Fed. of Pak., 2010)at 369 (SHCBA v. Fed. of Pak., 2010)at 369 (SHCBA v. Fed. of Pak., 2010) at 369

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Zeeshan Hussain Adil Advocate

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