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The International and Constitutional Legal Debates

The International and  Constitutional Legal Debates

Pakistan is a legal product. The nexus of its polity with constitutional and legal matters is unfathomable insofar as its composition, structure, spirit, ideology, characteristics and its borders are concerned. In terms of its composition and structure, the centrality of constitutional law cannot be underestimated. Likewise, in relation to its ideology, its relationship with Islamic Law (Shariah) and the relationship of Islamic Law with the modern state system excite thought-provoking ideas. In the realm of its international relations, Pakistan-India disputes of Kashmir and Siachen have international law implications that punctuate its foreign policy in as binding fashion as ratification of an international treaty. In this backdrop, the instant series of articles will aim at understanding the evolving constitutional and legal debates that, more often than not, occupy the political scene of the country.

1. Democracy and political system of Pakistan

There has been some debate and experimentation about the political systems in Pakistan. The 1956 Constitution provided for parliamentary form of government wherein the head of the government was to be taken from the parliament; the 1962 Constitution, on the contrary, favoured presidential form of government. The 1973 Constitution reverted back to the 1956 political system. The debate, it appears, never ends. Instead of putting ourselves right, the system is overhauled again and again resulting in the breakup of the political system. In the extant situation, the debate about change of system has been rejuvenated again. On 12th September 2017, Senator Sehar Kamran of the PPP-P moved a resolution in the Senate of Pakistan for establishing a National Democratic Commission and for dissemination of ‘democratic civic education’ in the country.

While the debate on the issue is alive once again, it may be appropriate to analyse it on the touchstone of the 1973 Constitution.

The Constitution of Pakistan, 1973, uses the word ‘democracy’ thrice: twice in the Preamble, and once in the Objectives Resolution as reproduced in Annex to the Constitution in the light of Article 2A. The occurrence of the word ‘democracy’ in the Objectives Resolution, which was a political document of 1949, does not, ipso facto, accord legality to it. Its legality has been fortified with its inclusion as Preamble to the 1956, 1962 and 1973 constitutions and on the strength of addition of Article 2A to the Constitution of Pakistan, which declared that the principles contained in the Objectives Resolution be treated as substantive law of the country following the decision of the Supreme Court of Pakistan in Ziaur Rehman Case (1973) wherein it was held that the Objectives Resolution could not control the whole of the constitution. 

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About Kamran Adil

The author is an independent researcher and has done his BCL from the University of Oxford. kamranadil@gmail.com

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