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April 10, 2023 marks 50 years of 1973 Constitution of Islamic Republic of Pakistan. The constitution of Pakistan has yet to be framed by the Pakistan Constituent Assembly. I do not know what the ultimate shape of this constitution is going to be, but I am sure that it will be of a democratic type, embodying the essential principles of Islam. Today, they are as applicable in actual life as they were 1,300 years ago.
Islam and its idealism have taught us democracy. It has taught equality of men, justice, and fair play to everybody. We are the inheritors of these glorious traditions and are fully alive to our responsibilities and obligations as framers of the future constitution of Pakistan—Quaid-e-Azam Muhammad Ali Jinnah, February 26, 1948
The constitution of a country provides direction to develop a strong governance system guideline for political and economic rule of law, ensuring fundamental rights of citizens. Since independence Pakistan has witnessed three constitutions (from August 14, 1947 to March 1, 1956, the Government of India Act, 1935 retained as the Constitution of Pakistan).
The first Constituent Assembly, formed in December 1945 in undivided India, after independence, was assigned the task of framing a constitution for Pakistan. On 12 March, 1949, the Objectives Resolution was passed that lay the principles for constitution. This legislative body was, however, dissolved in October 1954 before framing the constitution.
In May, 1955, the Second Constituent Assembly was formed which, on February 29, 1956 passed the first Constitution of Pakistan (promulgated on March 23, 1956) providing for a parliamentary form of government with a unicameral legislature.
The 1956 Constitution was abrogated as a result of Field Marshal Ayub Khan’s martial law on October 7, 1958. In February 1960, the military government appointed a Constitution Commission, which framed the 1962 Constitution that retained some of the provisions of the 1956 Constitution like adopting the official name “Islamic” Republic of Pakistan, independent judiciary, and condition of Muslim as head of state but catered to a presidential form of government.
The 1962 Constitution was abrogated on March 25, 1969, resulting in a legal and political crisis in the wake of imposition of martial by General Yahya Khan on Field Martial Ayub Khan’s advice. General Yahya Khan’s incompetence and suspension of the 1962 Constitution widened political divide in the country leading to civil disobedience and consequent loss of East Pakistan.
Following the separation of East Pakistan, Zulfikar Ali Bhutto took over as the President of Pakistan on December 20, 1971. The first session of the National Assembly was held on April 14, 1972 and an Interim Constitution with a presidential form of government was adopted by the National Assembly.
For drafting the constitution, a Committee was constituted that presented its draft on December. 31, 1972. It was unanimously passed by the Assembly in its session on April 10, 1973, receiving the President’s assent on April 12, 1973. Pakistan will be celebrating the golden jubilee of the 1973 Constitution of Islamic Republic of Pakistan [“the 1973 Constitution”] on April 10, 2023.
The 1973 Constitution has been amended at different times. In few instances, the constitutional amendments approved by two-third majority of the parliament were challenged in the Supreme Court of Pakistan—the highest judicial forum.
Unfortunately, the supreme law of the land was held in abeyance and mutilated by the military dictators on three occasions. For them the 1973 Constitution was nothing more than a piece of paper. Late General Pervez Musharraf during his presidency, in an interview, said that “Constitution of Pakistan is a piece of paper to be thrown in the dustbin”.
The Supreme Court endorsed extra-constitutional actions of dictators, except judicial martial law of the late General Musharraf. The highest court of the country during military regimes failed to maintain its independence and/or status as custodian of the Constitution.
While they were under oath to uphold the 1973 Constitution and protect human rights of citizens, the majority of judges preferred allegiance to provisional constitutional orders (PCOs), introduced by martial law administrators/dictators.
These judges not only validated/legalized unconstitutional actions of dictators, but also granted them power to amend the Constitution in some cases.
It is extremely painful that despite the passage of half a century, we are nowhere near to implementing the 1973 Constitution in true letter and spirit. Those at the helm of affairs are continuously disregarding and disobeying the supreme law of the land—a sacred document.
The 1973 Constitution contains the concept of separation of powers and bars each organ of the state from crossing its limits. Deviation from assigned role by any organ of the state is tantamount to violation of Article 5(2) of the 1973 Constitution.
Any act of abrogation or subversion or suspension or holding in abeyance, or attempting or conspiring to abrogate, subvert, suspend, or hold in abeyance attracts Article 6 of the 1973 Constitution.
However, there were three coups d’état, besides the establishment and judiciary have been interfering in the domains of executive and legislature. The judiciary-establishment nexus in the past had not only weakened our democratic norms but also severely impacted economy and foreign policy.
While establishment now claims to be neutral (sic), the judiciary has emerged as a new actor in the power game. Article 209 gives powers to the Supreme Judicial Council (SJC), comprising the Chief Justice of Pakistan (CJP), two senior most judges of Supreme Court and two senior most chief justices of High Courts as members, to inquire about the conduct of any judge.
However, the CJP, as chairman of SJC, has absolute powers to call for inquiry on a reference/complaint filed against any judge. Since all the powers vest with the CJP, therefore, any action against the judge depends on his will.
Our courts have a history of passing controversial and undesirable judgements, e.g., awarding death sentence (now termed judicial murder) to Zulfikar Ali Bhutto, elected Prime Minister of Pakistan, considered as the father of Constitution. Disqualification of two elected prime ministers of Pakistan are also considered political, rather than strictly legal judgements.
The 1973 Constitution determines jurisdiction of three pillars of the state: Legislature, Judiciary and Executive. The principle of trichotomy of powers aims at non-interference in each other’s domains, but this has been violated many a times in our 75 years of history and in 50 years of the present Constitution. Supra constitutional actions and their endorsement in the past by judiciary are highly lamentable.
Today, instead of solving their political disputes in Parliament, politicians resort to invoking jurisdiction of Supreme Court under Article 184(3) of the 1973 Constitution, and then malign judges and criticize their decisions not suiting them.
Deviation from the 1973 Constitution by state institutions has cost the country heavily. Many judicial pronouncements interfering in executive’s domain resulted in loss of billions of dollars through penalties/damages at international forums, besides poor rating at global indices.
It is about time the parliament revisited ambiguous provisions in the 1973 Constitution related to the roles of the three organs of state. They must also ensure strict accountability and system of checks and balances on powers of judiciary. The self-accountability mechanism given in Article 209 of the 1973 Constitution needs reconsideration.
(Huzaima Bukhari & Dr. Ikram Haq, lawyers, and partners of Huzaima, Ikram & Ijaz, are Adjunct Faculty at the Lahore University of Management Sciences (LUMS), members of the Advisory Board and Visiting Senior Fellows of the Pakistan Institute of Development Economics (PIDE). Abdul Rauf Shakoori is a corporate lawyer based in the USA and an expert in ‘White Collar Crimes and Sanctions Compliance’)
Copyright Business Recorder, 2023
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