Fatheyab Ali Khan: The Constitutional Anomalies

There is a consensus in the country that the army should have no role in politics and that the military high command should be under the control of the highest political leadership. And there are no two opinions about the fact that there should be democracy in the country. However, there are different opinions about the kind of democratic setup that we should have and the manner in which the setup should operate. But there is no difference of opinion that the people should have the right to elect their government in a fair and transparent manner.

A constitution is the fundamental law of the land, and the basic framework for governance. The statutes must conform to the superior norms contained in the constitution. Pakistan’s rulers have not only amended the constitution but have hoodwinked the people by introducing far-reaching changes in the statutes such as the Political Parties Act, the Representation of People’s Act and Qanoon-i-Shahadat, thereby altering the superior law of the constitution itself.

After the departure of Nawaz Sharif and suspension of the Constitution by General Musharraf, political parties in the opposition have been demanding restoration of the constitutional structure existing prior to October 12, 1999. At the same time, they have been describing it as the unanimous Constitution of 1973. These parties should tell the people in clear words which constitution they want to be restored, because before October 12, 1999, it was not the unanimous Constitution of 1973 but Ziaul Haq’s constitution which was in force. Compare the two documents — the unanimously adopted Constitution of 1973 and the constitution as it stood in 1985 — and the extent to which Ziaul Haq had mutilated the 1973 Constitution becomes clearly evident.

After the separation of East Pakistan in 1971, Z.A. Bhutto made a reference to the Supreme Court as to whether the truncated assembly could frame a constitution. The Supreme Court presided over by Justice Hamoodur Rahman, answered in the affirmative. During the chaotic period of 1972, the ruling elite wanted a presidential system but the country’s mature leadership demanded a federal parliamentary system, and all the parliamentary parties unanimously passed the 1973 constitution.

However, when unilateral amendments were made in the Constitution the parliamentary opposition stood against them and kept opposing them until 1977. The PNA declared that the 1977 elections were not transparent and demanded fresh polls. But before the Bhutto government and the PNA could make public the agreement they had reached, Ziaul Haq imposed martial law in the country. The democratic forces, however, continued their struggle through the Movement for Restoration of Democracy (MRD).

Ziaul Haq virtually changed the basic structure of the unanimously adopted Constitution of 1973 and held non-party elections. The MRD boycotted these elections and declared that the 1985 amendments amounted to promulgating an altogether new constitution, which should be scrapped and the country’s original Constitution of 1973 be restored. But the non-party parliament rubber-stamped the amendments contained in Ziaul Haq’s RCO (Revival of Constitution Order 1985, which was his LFO) The MRD authorised Ms Benazir Bhutto, who was then its convener, to challenge in the Supreme Court the constitutional changes imposed by Ziaul Haq. The Supreme Court gave a three-point judgment in 1988 in Benazir Bhutto’s petition:

1. National and provincial elections are a political process; national and provincial assembly elections should be held on a party basis.

2. When the National Assembly is dissolved, it is a constitutional requirement to hold general elections within 90 days.

3. The federal government is not complete without a prime minister.

Ziaul Haq had not appointed a caretaker prime minister when he dismissed Junejo and the Majlis-i-Shoora in 1988 nor did he hold elections within 90 days. After this judgment of the Supreme Court, Ziaul Haq’s amendments of 1985 became extra-constitutional.

Both the Treasury Benches and the opposition have cleverly suppressed the fact that the oath of office administered recently to the members of the National Assembly and Senate was that of Ziaul Haq’s Constitution and not that of the original Constitution of 1973.

Ziaul Haq sought refuge behind Islamization to introduce gender biased laws which take Pakistan into pre-medieval times. These laws such as enforcement of Hudd, Tazeer and Qanoon-i-Shahadat are highly controversial and discriminatory against women and contravene the substance and spirit of the original constitution of 1973. And these are the laws which our political stalwarts want to protect.

To achieve his political purpose, Ziaul Haq destroyed the principle of one-man one-vote which was, with immense wisdom, enshrined in the procedure laid out for the election of the president. In the 1973 constitution, the electoral college for the president comprised only the National Assembly and the Senate. Ziaul Haq enlarged the electoral college to include members of the provincial assemblies. According to the original 1973 Constitution, the National Assembly elected on the basis of population and the Senate, representing equality of the federating units, elected the president. When Ziaul Haq included members of the provincial assemblies in the electoral college, the indivisibility of the principle of one-man one-vote disappeared. Provincial assembly members now voted first to elect the Senators, and second, voted along with the senators to elect the president.

Ziaul Haq was aware that suspending or keeping in abeyance the constitutional machinery amounted to subversion of the constitution which was a treasonable act punishable by death under Article 6 of the 1973 constitution. By keeping the Constitution in abeyance, he also kept Article 6 in abeyance. He tried to run the country’s affairs with a nominated Majlis-i-Shoora, maintaining that Islam does not provide for political parties and general elections.

When he failed, he took cover behind the referendum through a clause which was introduced in the Constitution by Z.A. Bhutto’s seventh amendment and got himself elected as president for five years. Article 6 was revived only by the elected Majlis-i-Shoora after 8.1/2 years of suspension through the Revival of Constitution Order in 1985. Probably they struck a deal with him.

To sum up, we have three constitutional scenarios:

1. The unanimously adopted constitution of 1973 which includes the amendments introduced by Z.A. Bhutto.

2. Ziaul Haq’s constitution of 1985 with the Junejo-Nawaz Sharif amendments.

3. General Musharraf’s amendments in Ziaul Haq’s constitution.

The attitude of some parliamentary political parties is most surprising. Their parliamentary leaders had signed the unanimous constitution of 1973 and had taken oaths of allegiance to stand by it and protect it, but today the same parties, under the cover of religion, are trying to protect the amendments Ziaul Haq made. This amounts to breaking their oath of allegiance as provided by the constitution of 1973.

Although the general elections were held in October 2002, the Majlis-i-Shoora has not been formally convened because the joint session to be addressed by the president, which is essential, has not been called because of the deadlock on the Legal Framework Order. Success in the current dialogue between the government and opposition on the LFO will be a good augury, although it will in no way be different from the one witnessed in the dialogue held between Ziaul Haq and the members of the National Assembly elected under his Revival of Constitution Order.

The political parties holding the above views should formulate their constitutional aims and incorporate them in their election manifestos. Meanwhile, they should give attention to the people’s general welfare, employment, peace and security, education, housing, health, freedom and provincial autonomy.

They should prepare for the next general elections. The party or parties which win the next elections will have the privilege to propose and enforce a constitution of their choice. There should be no effort on their part to impose their will on the people through back door devices.

The author (1936 – 2010) was the President of the Pakistan Mazdoor Kissan Party and the Chairman of The Pakistan Institute of International Affairs. This article was published as an opinion in the Dawn Newspaper during the author’s lifetime. 

3 Comments

Filed under Constitution 1973, Discussion, Fatehyab, MRD, PIIA

3 responses to “Fatheyab Ali Khan: The Constitutional Anomalies

  1. Pingback: The Struggle for Democracy: Resistance and Dissent in Pakistani Politics | Pakistan Horizon

  2. Pingback: Voices of Resistance and Dissent in the Politics of Pakistan | Pakistani Law and Democracy

  3. Pingback: Panama Papers Scandal: Disqualifying Nawaz Sharif for Deception is Fair | Pakistan Horizon

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