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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. 

The concept of democracy, therefore, had its constitutional roots in the Objectives Resolution; its form, however, derived its legality from the structure of the Constitution especially its Part III, which provided detailed provisions relating the parliamentary democracy. Having delineated the concept and the form of democracy as envisaged in the Constitution of Pakistan, it will be in the fitness of things to highlight another related, but seldom discussed, construct of the constitution, which will inform on the debate on the political system of Pakistan. This construct is the word ‘Republic’, which is featured in Article 1 of the Constitution that provides that Pakistan shall be a ‘Republic’. What is a ‘Republic’? Apparently, etymologically and historically, the word has European origin; in the modern political parlance, and diametrically opposed to the ancient idea of monarchy, it means a form of government which is a matter of ‘public’, not a private matter. The openness of the system is a constitutional dictate and has to be tempered with the concept and form of democracy to form an educated view on the issue. At the same time, it may be interesting to examine the national ethos of democracy and ‘republic’ in the light of international law. The compatibility of the international law with democracy has not been seamless.

International law experts expressed themselves differently on the issue. Professor Crawford of the University of Cambridge (now judge of the International Court of Justice) expressed, in 1994, that international law had undemocratic characteristics. His reasoning rested on various principles of international law. For example, in the contemplation of international law, undemocratic executive power could bound a state to the international law without the consent of its citizens; likewise, under Articles 27 and 46 of the Vienna Convention on the Law of Treaties, 1969, the decisions reached on the basis of undemocratic processes are not acceptable as an excuse of failure to comply with the international obligations. In contradistinction, Professor Thomas Frank (late) and some other authors argued that international human rights law provided the legal basis of democracy in international law. Article 25 of the International Covenant on Civil and Political Rights, 1966, for example, provides that every citizen has the right “[t]o take part in the conduct of public affairs, directly or through freely chosen representatives’. Similarly, Article 21 of the Universal Declaration on Human Rights, 1948, requires that ‘the will of the people shall be the basis of the authority of government’.

2. Electoral reforms 

The device employed to translate the ideal of involving ‘public’ in the affairs of the ‘Republic’ is elections. In ‘the Islamic Republic of Pakistan’, this process of elections has had its share of criticism. After almost every general election, serious allegations have been levelled against the party, or group of parties, forming government. Owing to its significance, Part VIII of the Constitution has been dedicated to the constitutional laws relating to elections.

With the general elections scheduled next year (i.e. 2018), and owing to persistent criticism on the election system of the country by many a political party, a 33-member multi-party Parliamentary Committee on Electoral Reforms, headed by Senator Ishaq Dar, presented its recommendations in the form of the Elections Act, 2017. On the conclusion of the herculean task, Lt. Gen. (R) Abdul Qadir Baloch, Minister for States and Frontier Regions (a member of the Committee) moved a Resolution in the National Assembly to award Presidential Awards to members of the Parliamentary Committee who had contributed in at least 50 meetings out of 129 meetings of the Committee. His Resolution was passed on 22nd August 2017 and on the same day, the National Assembly passed the law, which is now set up for consideration by the Senate of Pakistan. To systematically study the issues, the thematic issues relating to the elections are identified as:

a. The scheme of the Elections Act, 2017

The Act is a compendious legislation, which has consolidated and codified many elections-related matters at one place. The legislation has 241 provisions divided into fifteen chapters, each dealing with different aspects of elections. Chapter I deals with definitions to provide definite legal meanings to different terms used in the law. Chapter II attends to the administration of elections. It delineates in detail the powers of the Election Commission of Pakistan (ECP), a constitutional body constituted under Article 218 of the Constitution. Chapter III talks about matters relating to delimitation. Chapter IV elaborates legal provisions dealing with electoral rolls. It provides for legal sanction to prepare computerised electoral rolls. To this extent, the use of information technology has been legalized to ward off any legal challenges. Chapter V deals with the conduct of elections to national and provincial assemblies. Chapters VI and VII provide for procedure to be followed in conduct of elections to reserved seats in assemblies and to the Senate, respectively. Chapter VIII legislates on election expenses and wealth statements. Chapter IX elaborates on dispute-resolution mechanism for elections. Chapter X deals with offences related to elections whereas Chapter XI highlights legal provisions dealing with political parties. Chapter XII deals with allocation of symbols and Chapter XIII provides process to be followed in local government elections. Chapter XIV outlines the mechanism for functions of caretaker government and Chapter XV provides for miscellaneous matters.

b. Strengths of the Elections Act, 2017

The Elections Act, 2017, has a number of strengths, which have been acknowledged by the organizations like Free and Fair Election Network (FAFEN) and the Trust for Democratic Education and Accountability (TDEA). Some of these strengths are: (i) legal provisions for powers of the members of the ECP; (ii) promotion of electoral participation of women; (iii) legal basis for election observers; (iv) enabling provision to initiate pilot project for voting of overseas Pakistanis; (v) processes for local government elections; and (vi) consolidation and repeal of eight sporadic elections-related legislative instruments.

c. Weaknesses of the Elections Act, 2017

The weaknesses of the Elections Act, 2017, as noted by FAFEN, are: (i) political monopolies of some families have not been tackled; (ii) no timeframe set for delimitation of constituencies; (iii) transparency about the process of appointment of caretaker governments not ensured; (iv) no clear criteria for finalizing polling stations; (v) the duration of campaign finance not specified; and (vi) the ECP not sufficiently empowered to hold election staff accountable for any acts/omissions during the election period.

d. International law and electoral reforms

International law and democracy have tenuous legal relationship, which has been strengthened through international human rights instruments. In connection with election laws, Pakistan has ratified international treaties that envision international legal obligations for it. Democracy International Reporting (DIR) and the Research Society of International Law (RSIL) have identified the following legal instruments impacting the election laws:

i. Article 25 of the International Covenant on Civil and Political Rights, 1966;
ii. General Recommendation 23 in connection with the Convention on the Elimination of All Forms of Discrimination Against Women, 1979;
iii. The International Convention on the Elimination of Racial Discrimination, 1965, the International Convention on the Rights of Persons with Disabilities, 2006 and the Convention Against Corruption, 2003 cover some aspects related to international human rights legal obligations of Pakistan.

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About Kamran Adil

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

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