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Constitution in crisis

Constitution in crisis

AT PENPOINT

It was perhaps symptomatic that the 1973 Constitution’s Golden Jubilee’s flagship event, the Constitutional Convention to mark its passage, held in the National Assembly’s hall, was itself the subject of controversy, because one of the members of a constitutional body, a judge of the Supreme Court, Mr Justice Qazi Faez Isa, was not just present, but also spoke on the occasion.

This was because the Supreme Court and Parliament are presently at daggers drawn, and engaged in a struggle for supremacy. Mr Justice Isa was the only judge present, even though the other members of the Supreme Court had been invited, and he was seated next to comeone who represented Parliament as no other man has done, or has done so far, Asif Ali Zardari.

This was not because Mr Zardari leads the PPP, which 50 years ago was the sole party holding the reigns of government, or because his is an MNA, but because he is not just a former member of the Senate (1997-2000), but also the country’s sole surviving ex-President (2009-2014). As such, he has at one time or another been part (as President the whole) of the three bodies that make up Parliament, and which are necessary to the legislative process.

One of the issues plaguing the relations between Parliament and the Supreme Court is that Supreme Court (Procedures and Practices Act), which has been passed by Parliament, and which has been struck down in advance by the Supreme Court, and which the President refused to give his assent twice.

Perhaps the most remarkable feature of the 1973 Constitution has been its resilience. Both the Martial Laws imposed before it, saw the existing Constitutions abrogated. The 1973 Constitution has been held in abeyance twice, but both times it was restored. Both times, the first Parliament to come into existence after that particular bout of military rule, passed an Amendment Act which introduced certain clauses which enhanced the powers of the President over the government.

In 1958 and 1969, it seemed, the military was totally dissatisfied with the Constitution, and decided to get rid of the existing document and replace it with an entirely new one. However, in 1977 and 1999, it seems that Article 6 (high treason as the charge for abrogating the Constitution, and the death sentence as punishment) was a deterrent. While the coupmaker of 1977 died suddenly in office went his plane was blown up, the one of 1999 was brought to trial. How was awarded a death sentence, but it was never executed. The sentence was struck down by the Lahore High Court. However, the impunity with which the first three military rulers passed does not seem to be an example any more.

It is perhaps appropriate at this point to note how it is creaking. Creaking is not necessarily a bad thing. Countries emerge stronger after crisis. However, the present crisis is such as to reduce confidence in a document which may have survived 50 years, but 20 of those years were under military rule, and the military was very influential the rest of the time. It is perhaps ironic that this Golden Jubilee is being celebrated in the midst of a crisis that has made it more disliked than it ever was under military rule.

Though military dissatisfaction is with many things, the Constitution has been problematic for it. The military first tried to have a constitution of its own design, in the shape of the 1962 Constitution, which was presidential. It also included the provision that the Cabinet would always include one officer of the rank of lieutenant-general or equivalent. Another provision was that the president could only be impeached by two-thirds of the National Assembly, that an impeachment motion could only be brought by 51 percent of the members, and that it the motion failed, all those voting for it would lose their seats. The elections to the National Assembly and the Presidency were indirect, with a layer of Basic Democrats insulating the ordinary voter from his representatives.

Yet even this Constitution was not good enough for the military, and was abrogated in 1969. Another of its provisions, the clubbing of all the provinces and princely states of West Pakistan, into one province of West Pakistan, as a sort of counterpoise to the single-provinces eastern wing of the country, was also reversed. Well, bot entirely, because the princely states stayed abolished, and were merged into the various provinces.

The 1971 elections threw up a National Assembly and five provincial assemblies, even though a constitution remained to be written. The country broke first, and it was left to the National Assembly, split itself into two, to write separate constitutions for what had become two independent countries. It is thus perhaps ironic that the Constitution written for the rump Pakistan, the 1973 Constitution whose jubilee is being marked now, contained provisions that were deemed necessary for a united Pakistan.

The Constitution as parliamentary, not presidential, meaning that the Chief Executive was elected by parliament, not the voters, and that the chief executive was merely the head of government, and not the head of state, which was to be a President, indirectly elected (by Parliament) and to have virtually no powers, always acting on the advice of the Prime Minister.

The Constitution continued the break-up of One Unit, but now instead of East Pakistan, it was Punjab which became the province with the majority of seats. As happened in 1971 and 1996, one party won almost all of the seats in one province, and formed the government (in 1971 it was the Awami League in East Pakistan, in 1996, it was the PMLLN) in Punjab).

It is perhaps worth noting that the division of powers between the federation and the provinces is not as relevant as the structures put in place, which have made it a federal rather than a unitary constitution. The 1962 Constitution did provide for two provinces, but while a provincial assembly was elected (indirectly, of course), the provincial governments were firmly under federal control. The governors and the cabinets held office at the pleasure of the President, which meant that the President also ruled both provinces. However, under the 1973 Constitution, provinces have been, from 1988 onwards, frequently been ruled by parties in the opposition at the Centre.

One might come to think the Constitution came too late. The Six Points of Sh Mujeeb had required that the Pakistan centre restrict itself to the subjects of foreign affairs, defence, commerce and communication. That might sound like a radical programme for a loose confederation, but actually it was the basic scheme of the Indian Empire, and of the 1935 Government of India Act. It must not be forgotten that the 1935 Act formed the constitution of both India and Pakistan as amended by the 1947 Independence of India Act, passed by British Parliament.

The part of the Central Assembly which comprised the Constituent Assembly of Pakistan, was empowered not just to pass a Constitution for Pakistan, but also to amend the Government of India Act as needed. Should it then be a surprise that the 1956 Constitution should be a reprise of the 1935 Act? Or that the 1956 Constitution inspired the 1973 Constitution?

The 1973 Constitution is thus not so much a revolutionary document as a link in the chain of the British imposing their system on Pakistan. It must not be forgotten that the 1935 Act was not just passed from on high. There were three Roundtable Conferences, between 1930 and 1932, which provided major input.

It is perhaps appropriate at this point to note how it is creaking. Creaking is not necessarily a bad thing. Countries emerge stronger after crisis. However, the present crisis is such as to reduce confidence in a document which may have survived 50 years, but 20 of those years were under military rule, and the military was very influential the rest of the time. It is perhaps ironic that this Golden Jubilee is being celebrated in the midst of a crisis that has made it more disliked than it ever was under military rule.

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