Zahid Malik

Monday, March 08, 2010 – Comments

As the Parliamentary Committee on Constitutional Reforms is about to complete its task of framing recommendations for amendments in the Constitution with expectations that these might be made public before March 23 followed by their thorough debate by Parliament and possible adoption, I would at the outset request the Committee and Parliament that intentions of the worthy framers of the 1973 Constitution should be kept in view and in no case the spirit and sanctity of the Constitution should be violated. It was a consensus Constitution, and thus believed to be a gift of Mr. Zulfikar Ali Bhutto to the nation but was amended seventeen times during the short period of about 37 years to serve the interests of the ruling political parties and powerful individuals rather than protecting the interests of the federation, the federating units and above all the people of Pakistan. In the entire world there is hardly any precedence of such a large number of amendments in the Constitution in such a brief period.

A Constitution is the most vital document in the way a modern country operates as it protects the rights of all its citizens regardless of physical appearance or originality. Most of the countries that claim to be democratic, base their arguments on the contents found in their Constitutions. This document serves as a ‘social contract’ between the government and the people it rules and offers checks and balances on the people with authority to rule.

A Constitution is the reflection of the shared goals and ambitions of a society. It is mostly drawn up with the participation of the general population’s consent. The basic ingredients or pillars of our Constitution are three: (a) Islamic, (b) Parliamentary and (c) Federal which in no way should be touched or amended. When the former President General Pervez Musharraf staged the coup, or what he always preferred to describe as “counter-coup”, in October 1999 the Apex Court in Zafar Ali Shah case not only validated the coup on April 27, 2002 but also magnanimously authorized the President to amend the Constitution, if so required, but without disturbing these three characteristics of the Constitution. In the second instance as well the Supreme Court, led by Chief Justice Mr. Abdul Hameed Dogar validated in November 2007 the President Musharraf’s Emergency but without disturbing these three pillars of the Constitution.

Since 1947, we have had five Constitutions the Government of India Act, 1935, the Constitutions of 1956 and 1962, the interim presidential Constitution of 1972, and the 1973 Constitution currently in force. As it exists today, the Constitution looks nowhere like what it was when enacted in 1973 as a consensus document by the people’s representatives. The Prime Minister’s powers have been diluted, the role and powers of the Head of State have been enlarged, and the President has been given the right to sack an elected government and dissolve the National Assembly.

Before the military action in October 1999, 15 amendments had already been made in the 1973 Constitution. Of these, seven amendments were carried out during the first four years of the promulgation of the 1973 Constitution. The first amendment to the Constitution was carried out within nine months of its adoption on August 14, 1973 to deprive the citizens of their constitutionally guaranteed fundamental rights.

It is worth noting that except the Eighth Constitutional Amendment Bill, all constitutional amendments, including the seven passed before the military take-over of 1977, were carried out in haste, and without sufficient debate, by suspending the normal rules and procedures for the conduct of parliamentary business. While most of the leaders in Pakistan have been altering or amending the Constitution whenever it suited them, the developed countries consider the Constitution to be a sacred document, which no individual or group, however powerful, could change or amend at his own sweet will. Even the national parliaments in some countries with well-developed democratic dispensations, do not enjoy the power to alter or amend this basic or fundamental law. Amendments to the Constitution, for instance, in Australia, France, Italy and Ireland can be made only through a referendum or reference to the citizensthe electorate enjoying the sovereign and final authority. Unfortunately, our record, since the adoption of the 1973 Constitution, shows that the people at the helm of affairs do not hold any respect or esteem for the Constitution despite claims often made to uphold its sovereignty.

In our chequered history, while dictators fiddled with the Constitution, the democratic governments too got the Constitution amended to suit their political agendas. Late General Ziaul Haq had the audacity to remark that the Constitution, which is considered as sacrosanct in civilized societies, is just a piece of paper which he can tear up at any time. Mian Nawaz Sharif, when he was Prime Minister, introduced an amendment that ensured that members of a party, if vote against the party line would lose their seats. Though the amendment was made to curb, what is known as, horse-trading, yet practically it is totally dictatorial and against the democratic traditions. In other countries like the United States, parliamentarians do cast their votes on the basis of their conscience. I think this particular article should be deleted from the Constitution or suitably amended. On April 2, 1997 all rules and procedures of Parliament were suspended and in the middle of the night, 13th Amendment was rushed through both the Houses, signed by the President the next day and notified on April 4. The amendment related to undoing of Presidential powers regarding dissolution of the Assembly and dismissal of theGovernment as well as appointment of the Services Chiefs. The 14th Amendment in the Constitution relating to defection clause was passed by the Assembly on 1st of July 1997, again rushing through the procedures.

While it is not possible to comment on each and every article and clause of the Constitution, I would like to point out some of the amendments made in the 1973 Constitution that should be retained or those which are contentious and need to be deleted or replaced to address the concerns of many stakeholders. The PML-N is pressing for implementation of Charter of Democracy (CoD), repeal of 17th Amendment and the Prime Minister is on record having said that this would be repealed before 23rd March 2010. It is essential that some of the important components of the otherwise controversial amendments like voters age limit and increased seats for women may be retained.

I am also of the firm opinion that restrictions imposed on politicians that they cannot become Prime Minister and Chief Minister for the 3rd time are uncalled-for and against the democratic spirit. Once elected as Member of the National or Provincial Assembly, there should be no bar on any one to contest for these coveted posts.

There is much ambiguity about laying down the mechanism for initiating action against those who overthrow an electedgovernment and abrogate or suspend the Constitution under Article 6 of the Constitution, which is considered as a safeguard against military intervention. This Article has failed to check Rawalpindi from crossing the Zero Point of Islamabad. Therefore, there should be an explicit explanation of this Article and a mechanism may be laid down for action against any one whoever abrogates the Constitution or puts it in abeyance.

Another contentious Article in the Constitution is 58(2B), under which the President can dismiss a government and send theAssemblies packing. Political parties consider it as a sword over the head of the government but others are of the opinion that checks and balances are necessary to ensure that the Government functions in a transparent manner and to have a check on corruption.

Much has been written about balancing the powers between the President and the Prime Minister and one hopes that the Committee would restore the original articles of 1973 Constitution to give full authority to the Prime Minister who is answerable before Parliament and the people. The powers to appoint Services Chiefs should rest with the Prime Minister as is the case about civil servants.

As for provincial autonomy, political parties particularly those having presence only in the provinces are all out for provincial autonomy saying it would prove as a guarantee to keep the integrity of the country intact. They term the Concurrent List as the major obstacle in the way of Provincial Autonomy and are of the firm view that it should be abolished because it was incorporated in the Constitution of 1973 for 10 years and the prescribed time expired in 1983. The issue of provincial autonomy is assuming dangerous proportions and it would be in the fitness of things if it is resolved once for all.

The issue of amending the Constitution itself is a serious one, as in the past the courts allowed individuals to amend the document. All over the world the courts interpret the Constitution and the Law, but they are not supposed to amend the Constitution themselves or authorize any one to do so, as it is the sole prerogative of Parliament and Parliaments too exercise this right rarely. Therefore, I would suggest that ambiguity, if any, which is being exploited, should be removed so that no one can amend the Constitution at his sweet will.

While one may be in a position to make detailed comments once the recommendations of the Constitutional Committee are made public, I would simply hope that the members of Parliament would be given enough time to debate each and every article of the Constitution so that they could give their input to improve it, and at the same time public opinion should also be elicited as prominent constitutional and legal experts could also contribute to its fine tuning. Though the Committee had sought proposals from all the stakeholders before taking up the task, yet members of the civil society, human rights organizations and other groups can still make useful recommendations for incorporation in the Constitution.

I thought it appropriate to appeal, at this point of time, to all concerned not to amend the Constitution so frequently and that too to suit various interests because we are in the habit of doing so.

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