Constitutional anomalies
By Fatehyab Ali Khan
Sunday, 05 Jul, 2009

Today Pakistan stands on the brink of constitutional anarchy. Some forces want a new constitution; others champion the restoration of the constitutional order existing before Oct 12, 1999 or a confederal constitution. Our constitutional chaos is the result of the unscrupulous constitutional manipulations of Gen Ziaul Haq.

From August 1947 to 1970, no general elections at the federal level were held in Pakistan. When Yahya Khan grabbed power from Ayub Khan, he promulgated the first Legal Framework Order (LFO), abolished One Unit in West Pakistan, restored the provinces of Punjab, Sindh and the NWFP and gave Balochistan provincial status for the first time.

The defeat of the army in East Pakistan culminated in the dismemberment of Pakistan. Zulfikar Ali Bhutto became the first civilian chief martial law administrator and as the leader of the majority party in West Pakistan he made a reference to the Supreme Court on two points: a) could the truncated National Assembly of Pakistan function as a legislative body? b) Could the National Assembly enact a constitution for what remained of Pakistan?

Justice Hamood-ur-Rahman was chief justice of the Supreme Court whose advice was in the affirmative. The interim constitution was promulgated on April 21, 1972. Since it was presidential in nature and Pakistan was a federation, the leaders of the parliamentary parties persuaded and pressured Bhutto to promulgate a parliamentary constitution in 1973 which was adopted by consensus on Aug 14, 1973.

The 1973 constitution was signed by all leaders of parliamentary parties. It provided for joint electorates, separation of powers and a bicameral legislature, that is the National Assembly and Senate which was a permanent representative body.

The 1973 constitution represented a compromise consensus on three key issues: the role of Islam; the sharing of powers between the federal government and the provinces; and the division of responsibility between the president and prime minister, with a greatly strengthened position for the latter.

Gen Zia, who was the hero of Black September in Jordan, was recalled and made chief of army staff by Bhutto, superseding many senior generals.

In the second half of the 1970s, political instability and upheaval resulted in Zia’s martial law with catastrophic consequences for the constitution. A major blow was the enactment of the Eighth Amendment in 1985 which was illegal and unconstitutional. It was passed by a single house because Zia had dissolved not only the National Assembly but also the Senate which was a perpetual representative body. It changed Pakistan’s form of government from a parliamentary system to a semi-presidential system by giving the president vast powers.

The key clause of the Eighth Amendment gave the president the right to dissolve the National Assembly but not the recreated Senate. The prime minister continued to have the power to advise the president to dissolve the National Assembly which would thereby stand dissolved after 48 hours.

The 13th and 14th Amendments were both passed in 1997 when Nawaz Sharif was prime minister. They removed the institutional checks and balances on the prime minister’s power by giving him immunity from being dismissed by the president.
Finally, the president’s power was partially restored by the 17th Amendment passed under Gen Musharraf’s rule. The power to dissolve the National Assembly and dismiss the prime minister is now subject to the Supreme Court’s approval within one month. The Supreme Court later validated Gen Musharraf’s coup since the 13th Amendment had removed the constitutional means of dismissing an unpopular prime minister.

The current constitutional paradox lies in the fact that the ruling and opposition parties maintain that only an elected parliament has the right to amend the constitution, but these parties have themselves been elected under Gen Musharraf’s LFO which they consider unconstitutional.

The question can be legitimately asked whether, after July 5, 1977, one individual as chief martial law administrator could have amended a constitution adopted unanimously. Secondly, as Gen Zia had illegally dissolved the Senate, could a single house and an assembly elected on a non-party basis rubber-stamp the steps taken by the martial law administrator?

Since July 5, 1977 until today the grave constitutional anomalies which have not been understood, clarified or removed are as under:

— All extra constitutional steps taken under martial law were validated by the superior courts and supported by political elites which have been collaborative partners of martial law regimes in one form or the other. Article 6 of the 1973 constitution was meant to check and prevent extra constitutional steps by civil or military authority. However, when martial law was imposed, the constitution was held in abeyance and so was Article 6, from July 5, 1977 to Dec 31, 1985. After the Eighth Amendment, it became operative again. But since all martial law regulations and orders were validated when the constitution and Article 6 were held in abeyance, the perpetrators and collaborators of the past cannot be punished. Is Article 6, then, a relevant part of the constitution?

— Constitutional amendments can only be passed by a two-thirds majority of the National Assembly and Senate. Gen Zia not only dissolved the National Assembly but also the Senate. The Eighth Amendment was passed by a single house, the National Assembly. Could a single house amend the constitution?

— The Hudood Ordinances, Hudood courts, blasphemy laws, amendments in the PPC and CrPC as well as family laws were significant provisions of the Eighth Amendment and are still part of the constitution. The existence of institutions with parallel and competing jurisdictions led to serious constitutional anomalies as the Eighth Amendment was later invoked three times in the 1990s by various presidents to justify the removal of corrupt governments which, they asserted, had lost the confidence of the people.

In the case of Benazir Bhutto V/S Federation of Pakistan, the Supreme Court was pleased to declare ‘Elections of the provincial and national assemblies have to be held on party basis’. Was an assembly elected on a non-party basis, in any manner, lawfully competent to amend the constitution?

The Eighth Amendment has defaced virtually every provision of the 1973 constitution and annihilated its original spirit.

The solution to the crisis lies in the restoration of the constitution to its original form. All 17 amendments to the constitution should be scrapped. Then parliament can bring in changes according to the requirements of the time. Affirmative legislation should be passed in favour of women and minorities.

The writer is a constitutional lawyer.
fatehyab@cyber.net.pk

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