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CONSTITUTIONAL LAW OF PAKISTAN | BEYOND A BOILERPLATE VERSION

The boilerplate versions of different aspects of Pakistan Affairs are in abundance; the Constitution of Pakistan is no exception. The chief versions of the Constitution that often come under discussion are: the 1956 Constitution, the 1962 Constitution and the 1973 Constitution. The standard comparison of the three versions involves similarities and dissimilarities among them. The similarities highlight the basis of the Islamic provisions, the role of Objectives Resolution of 1949 in constitution-making and its impact on the subsequent versions, the position of armed forces and organization and establishment of the constitutional courts. The dissimilarities emphasize the characteristics of the parliamentary versus the presidential systems of government and the differences in the local government systems in the 1962 and the 1973 Constitutions. This write-up is an attempt to underline three conceptual themes that pervade the constitutional debates in Pakistan.

First and foremost question is of a constitution in a Muslim state. It goes without saying that the Islamic Law is unequivocal in setting the supremacy of the Quran and the Hadith over all sources of law. With this fundamental basis, what is the status of a constitution in a Muslim country? What if it is written? What if it contravenes the Quran and Hadith? What is, precisely, the definition of Hadith? Is it confined to ‘The Authentic Six’ (sihah sitta), or are the sources of Hadith indefinite? What is the difference between Sunnah and Hadith? Do the Quran and Hadith form a legal order, and if yes, can it be written down? Does a written constitution provide an independent legal order different from that ordained in the Quran and Hadith? What is Shariah?

All these questions have been addressed by authors all over the world. Orientalists like Joseph Schacht and Noel James Coulson raised these questions forcefully in the last three decades of the previous century. Maulana Abul-ala-Maududi wrote a book entitled ‘Islamic Law and the Constitution’ on the subject. The issue is of fundamental nature especially when it comes to interpreting the successive versions of the constitution of Pakistan and while deciding about the hierarchy of the legal sources in the constitutional and legal order of the country.

Pakistan’s judiciary, which is predominantly trained in English jurisprudence and Common Law learning, hasn’t delivered authoritative principle-based judgements on these issues. The issues are still unsettled. In 1985, General Zia-ul-Haq through Ninth Amendment Bill to the 1973 Constitution tried to incorporate supremacy of Shariah Law over the Constitution, but the National Assembly did not pass the Bill. Another attempt was made in 1998 by Nawaz Shairf government, in form of Fifteenth Amendment Bill to the 1973 Constitution, to reintroduce the supremacy of Shariah law over the constitution, but it also failed. A Federal Shariat Court was established through a Presidential Order (Constitution Amendment Order, 1980) and was protected by insertion of Article 270-A in the Eighth Amendment. The gist of the discussion is that the matter is still not settled and the constitution as a document vis-à-vis Islamic Law is trying to reconcile its position.

Secondly, there are questions on the nature of the political system. Confounded by many an influence, the political system, and, in turn, the system of governance is not performing as per the aspirations of the people. The recent spate of sit-ins and dharnas by Imran Khan’s PTI and Dr Tahir-ul-Qadri’s PAT are just stark reminders of the extent of disagreement over the political system of the country. What political system works for the country is not known yet as the three versions of the constitution in Pakistan kept on changing the political system of the country to tailor the needs of the political exigencies. The tinkering with the constitutional law of the country upstaged the characteristic permanence of a constitution with the topical and temporal visibility oriented gimmicks of the government of the day. The centre of gravity of the political power remained outside the parliament, which has increased the centrifugal pull of the extra-constitutional forces. The first Constituent Assembly of Pakistan, which was a product of 1946 elections, through a legislative move tried to limit some powers of the Governor General of Pakistan. In response, the Governor General dissolved the Assembly. This fight for political power and the nature of political system gave rise to two rounds of Maulvi Tamizuddin Case.

In round one, in the Sindh Chief Court, the Governor General of Pakistan was represented by Sir Ivor Jennings who was a constitutional expert on South Asian countries and later became the Vice Chancellor of the University of Cambridge, while Speaker of the Constituent Assembly, Maulvi Tamizuddin was represented by D. M. Pritt. The two sides pleaded the case and the Sindh Chief Court decided in favour of the Speaker of the dissolved legislature. The Federal Court headed by Chief Justice Munir and four other judges, however, later on decided in favour of the Governor General and set aside the order of the Sindh Chief Court. Except, Justice Cornelius, no lordship dissented the reasoning of the majority decision. Justice Cornelius touched upon the political system question as he opined that the Constituent Assembly was a ‘sovereign’ body and therefore no limitations could be imposed on its powers. His viewpoint did not carry the day, but the legal debate of the nature of political system resurrected in almost all the constitutional cases of the country. Contrary to this, the reasoning of CJ Muhammad Munir, inter alia, was built on the Bracton’s legal maxim of ‘Necessity makes lawful which is otherwise not lawful’. Was Pakistan a part of the Commonwealth or an independent state is the question that was taken up by international lawyers. Sir Ivor Jennings wrote a dedicated book on the Constitutional Problems in Pakistan in 1957. The book unfortunately is not readily available in the market or in some leading law libraries of the country, however, a capsule review of the book was published in the esteemed Foreign Affairs magazine in July, 1957 by Henry L. Roberts wherein it was argued that Tamizuddin Case is an important precedent for the Commonwealth countries.

The presidential system of the 1962 Constitution, the parliamentary system of the 1973 Constitution with extra powers of the President all pointed to the same problems of nature, composition and powers of the political system. The role of federating units and their autonomy are issues related to the political system. The Eighteenth Amendment to the Constitution of Pakistan 1973 introduced a plethora of changes to the Constitution in which concurrent list of subjects of legislation was abolished thus changing the nature and structure of governance system. It has touched upon many an important aspect, however, the political power of military in the country has not been calibrated with the governance system. Since the constitution of a country is primarily a consent document giving rise to legal obligations, there is need to assess the political power-wielders in the political system before formalizing anything. Another related aspect is the system of local government, which again is present in the letter, but not in the spirit. The Eighteenth Amendment to the 1973 Constitution obligated the provincial governments to hold local government elections and to devolve the political authority, but so far the response is lukewarm. These examples highlight the prevalence of the issue in every aspect of the constitutional law of Pakistan, and no doubt, it is one of the fundamental issues that guarantee enactment and sustainability of the constitution for the country.

Thirdly, what ideology shapes the constitutional law of Pakistan has remained an open question. This point has more to do with the spirit of the constitutional law rather than its letter. The letter of the Constitution has been predominantly ascribed to Islamic ideology, but the implementation has been, at best, selective. The implementation of Articles 62 and 63 of the 1973 Constitution that lay down qualifications for members of national and provincial assemblies is an illustration of the fact that many such ideas remain unimplemented. Likewise, the case of prohibition of riba/interest that has been procrastinated by all judicial fora on one pretext or the other is another example of the defiance to the ideological basis. One subtle point warrants mention here. The lexis employed by the constitutional law of Pakistan for basic rights of its citizens is ‘Fundamental Rights’ instead of ‘Human Rights’; it may be because the Fundamental Rights can be suspended when emergency legal provisions to protect the state are invoked contrary to the human rights, which may not be suspended. A related matter is implementation of Capital Punishment law of the country. Last year, GSP Plus Scheme of the European Union for Pakistan was celebrated as a great success. The detailed analysis of the Scheme evinced that it imposed legal obligation on Pakistan to implement twenty-seven international treaties related to human rights, labour rights, environmental and governance principles. The internationalization of the EU agenda through international treaties and linking it to trade with its trade partners show how the international legal order is being used by the West to advance its core values. Conversely, trading off and suspending the core constitutional values of protecting the life and property of citizens of Pakistan (and its consequential instruments such as death penalty) show where Pakistan places its constitutional values.

In modern constitutional law, the constitution of a country is considered a living organism. Judiciary, executive, military, media and citizenship — all are products of the constitution, but their interaction, nature and functionality depend upon the human beings who man them. Unfortunately, in Pakistan, constitution has remained smaller in its size as compared to the interests of the power-wielders; the equation has to change: when and how, the nation has no idea.

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