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The Role of the Constitution in Governance

ByRiaz Hanif Rahi, Advocate Supreme Court. (1) CEO: The Jurists Foundation of Pakistan (Regd.)

Pakistan is rich in natural resources but its people are still waiting to see the love of a free nation which is not possible without evolving a system which means the development of its basic & fundamental document i.e. Constitution of Pakistan in such a manner that it may address the “Major National Problems” for the maximum happiness to its citizens. Justice (Ret.) Ijaz Afzal Khan while delivering judgment titled as Younas Abbas Vs. ASJ [2] etc. passed obiter in Para.10 of the judgment which is reproduced herein below:-

“Law is undoubtedly a set of Commands of the sovereign. It can endure and stay officious if it is not abstract and socially unrelated. It becomes all the more enduring and efficacious if it pulsates from the soil and reflects indigenous conditions around. A law thus evolved not only caters from what people need for their peaceful co-existence but also endures till the time the conditions around change. On the contrary, a law which is a patchwork of imported patches can neither cater for the legitimate needs of people nor stay efficacious because of its feeble basis and frequent violations”

Since system of universe is governed by Divine Law and for societies, Allah Almighty has revealed written laws which are 104 sheath and four main books [3] i.e. torah (Tawraat), Gospel (Injeel), the Psalms (Zaboor),Furqan (Quran) & every society of the world has its own written Constitution except few countries like San Marino, Israel, Saudi Arabia, Canada, New Zealand & United Kingdom [4] which are also governed under settled principles, practices and conventions but let us examine Pakistan’s perspective.

  1. The country has remained governed under Government of India Act 1935 but on 07th March 1949, Objective Resolution [5] was introduced by Prime Minister Liaqat Ali Khan in the first Constituent Assembly of Pakistan which was passed on 12th March 1949 with the ambition that Pakistan’s future Constitution would be based on Islamic Ideology and Article 2A was introduced in the Constitution through Presidential Order 14 of 1985 on 2nd March 1985 making the Objective Resolution a Substantive Part of the Constitution under which powerful have been required to exercise their authority as trustee under the Sovereignty of Allah Almighty and Muslims were required to order their lives in the individual & collective sphere in accordance with the teaching &  requirements as set out in Holy Quran & Sunnah U/A 227 (1) of the Constitution [6] but Supreme Court of Pakistan has not considered this provision as Supra Constitutional in Hakim Khan’s [7] case and then in Zaheeruddin’s case [8]  and lastly by the Full Court comprising of 17 judges in Rawalpindi Bar Association’s case [9] that no provision of the Constitution can be struck down on the basis of Islamic provision and Art. 2A has equal weight as other provisions of the Constitution. First Constitution 1956 was an adopted document approved by the President Mr. Iskandar Mirza (Ex-Major General) on 2nd March 1956 but he himself abrogated it by imposing Martial Law on 07th Oct.1958 and appointed first Army Chief to Mr. Ayub Khan as its Chief Martial Law administrator who after passing of just 19 days on 27th Oct.1958 toppled the government of Iskandar Mirza by conducting a military coup. [10]
  2. Ayub Khan gave the Constitution in 1962 which was described as handcrafted by just one man, Barrister, “Asad Rahim Khan” [11] a blue eyed lawyer of Ayub Khan. This Constitution was promulgated on 01st March 1962 and immediately thereafter elections were held on 28th Mar.1962 and BD members served as Electoral College and Ayub Khan also won the Election of 1965 against Fatima Jinnah under the same Electoral College.
  3. Ayub Khan stepped down on 25th Mar.1969 and handed over power to Yahya Khan who imposed Martial Law on the same day and abrogated the Constitution of 1962. [12]
  4. Yahya Khan introduced Legal Frame Work Order (LFO) on 30th Mar.1970 under which Elections to National Assembly were to be held on 5th October 1970 and Provisional Assemblies not later on 22nd October 1970 but actually, these were held on 7th December 1970 & 17th December 1970 respectively. [13]
  5. Articles 17 (2) and 24 of LFO are more significant. U/A 17 (2) Procedure of National Assembly (NA) was to be regulated by the Rules of Procedure set out in Schedule III [14] in particular NA shall decide how a decision relating to the Constitution Bill is to be taken and Art. 24 under which it was provided that, “the NA shall frame the Constitution in the form of a bill to be called the Constitution Bill within a period of one hundred and twenty (120) days from the date of its first meeting and on its failure to do so shall stand dissolved”. First direct elections were held in 1970 under LFO in which voting took place against 300 general constituencies of which 162 were in East Pakistan and 138 in West Pakistan. The Awami League of Sheikh Mujibur Rehman won 160 of the 162 general seats and all seven (7) women’s reserved seats in East Pakistan while PPP won only 81 general seats and five (5) Women’s seats in West Pakistan. [15]
  6. The country faced unstable political situation after the general elections under which 1971 war broke which remained pending between 3rd December 1971 to 16th December 1971 and this war caused great suffrage under which East Pakistan was separated and at that time there was no Constitution in the country [16] and under this situation of chaos & anarchy, a repartee state came into being.
  7. The first session of NA after election on 7th December 1970 was held on 14th April 1972 and immediately thereafter Interim Constitution was passed on 17th April 1972 under which Mr. Zulfiqar Ali Bhutto became the President and the first session was conducted to save the limitation provided under Art. 24 of LFO. This Interim Constitution [17] was implemented and the adopted document introduced the Presidential form of Government.
  8. The requirement of Art 17 (2) of the LFO 1970 was ignored while framing the Constitution of 1973 as Rules of Procedure under Schedule III were not followed. Under Rule 30 Discussion on the Bill was to be held and prior to it Copies of the Constitution Bill were to be circulated under Rule 29 among the members of National Assembly 3 days before the motion is made but only draft Constitution was placed before the members for their signatures under extraneous reasons but it was publicized that the Constitution was unanimously passed although some of the members like Ahmed Raza Qasuri did not signed [18] the document prepared in most mysterious and secretive manner by the Chief Draftsman Mr. Abdul Hafeez Pirzada who was Law Minister at the relevant time. Members of the National Assembly were behaved in the like manner as advocate’s clerks usually deal with their clients while getting signatures on blank Wakalatnama. Mr. Abdul Hafeez Pirzada’s conduct became more visible when he concealed the fact before the Inquiry Commission in the year 2015 which was constituted at the request of PTI for alleged rigging in 2013 General Elections. The Chairman of the Commission Mr. Nasir Ul Mulk remained asking even on the last day of hearing who influenced the election process and did rigging in the elections? He deliberately concealed the name of Iftikhar Mohammad Chaudhry who being the Chairman Law & Justice Commission (a subservient position under sub-Constitution law) remained Conducting and Chairing the meeting with ROs even in Provinces for which he was not competent and he deliberately interfered in the Constitutional domain of Election Commission & thus influenced the free, fair & impartial election of 2013.
  9. It is again astonishing that the mandate of people of 1970 was used for the approval of the Constitution & that too remained in minority after the separation of East Pakistan and majority elected members of 1970 election did not participate in approving the 1973 Constitution nor were they duly invited. The mandate itself became infructuous as majority members weren’t ready to act as members of Parliament & new elections were not held. The country was passing through sorrowful conditions & no normal circumstances were in existence for doing the important job of Constitution framing. Rules of procedure of NA were also silent with regard to providing guidance of voting procedure & number of members required for voting the approval of Constitution.
  10. Repeated amendments i.e. 26 in number have been brought in the Constitution. These have made the document further complex e.g., in the eighteen amendment mechanism of Judicial Commission of Pakistan was introduced for appointments of Constitutional Judges and after 26th amendment, the courts were itself divided and the judges are being appointed under the arbitrary will of the executive and rule of law has further become weak. A parallel system has been established which is evidence for no confidence in the existing judicial system. Even certain judges of the Constitutional Court have failed to seek relief for them which may lead to the inference that they have no confidence in their working but they are drawing high salaries many times higher than the other Govt. Officials of the state who have the same status and this has been termed as bribe by many spectators. The above points would make it clear that due care has not been adopted nor serious attempt was made to frame or amend a Constitution according to the public requirements rather personal wishes, choices & pleasure were the considerations at the relevant stages although public participation is fundamental requirement in order to foster Legitimacy & Ownership, Inclusivity & Representation, Democratic Values & Accountability, Stability & Social Cohesion, Enhanced Constitutional Contents, Notice to Obey the Document but no rule or principle recommend to keep this job as secretive & unilateral being the Supreme document of the state and now it has also become essential to take Expert Opinions at regional & global level because world is quickly marching towards globalization. [19] It can’t be passed in haste & haphazard manner. According to Wikipedia information, it took 2 years, 11 months & 18 days to complete the Indian Constitution in the year 1950 which is the longest written Constitution and 5 years & 9 months to complete the US Constitution which is the oldest & longest-standing written & codified Constitution. India started work on its Constitution in 1946 with the formation of the Constituent Assembly. The primary goal was to draft a Constitution that would facilitate the transfer of power from British rule to India. U.S Constitution was signed on 17th September 1787 and carried only 27th amendments but the Indian Constitution carried 106 amendments and the main purpose was to achieve Socio-Economic development alongside political freedom. In Eastern Europe today, Constitutions are subject to “continuous creation” because Man Made Laws being the creation of human minds are mortal and can’t survive forever like Divine Laws. According to recent studies, the average life of any new written Constitution is 19 years [20] and the main reason is the short time devoted to the Constitutional drafting process. A study in 2009 prescribed that the average time taken to draft a Constitution is around 16 months. Some defects in 1973 Constitution are  pointed out hereunder:-

Accountability:-

No clear & effective mode is provided in the Constitution but it must be provided for the accountability of public office bearers especially against Constitutionally appointed employees. Whenever a wrong person holds the public office, people remain in wait for their retirement for a long time but there must be an easy mechanism for their removal & punishment because law must prevail over an autocratic approach & provisions like article 209 of the Constitution failed badly to achieve the goal.

Stability:-

People’s representation in the Pakistani system is a fraudulent assertion but it must provide a stable political system.  According to Aristotle demagogues attain power by bribing the electorate & waste accumulated wealth [21]. The system is based on exploitation. The parliament is a place for the protection of people who achieve success by exploiting the lower classes and no expectation of delivery can be made from the dirty people involved in crime. Even seats of the senate are openly sold. Therefore, the Constitution must provide any suitable mode of representation i.e. representation to each statistically recognized class according to its pro rata population or proportionate representation in direct general elections.

Predictability:-

Constitution must given vision for gradual socio-economic development and education to its citizen to attain the “means”, the “possible” and the “becoming”; the first implies a balanced development of body, mind, ability and imagination and the second, the recognition of the limits of mind and the range & limitations of talent, the third an outcome of other two, is the style and self- assurance that come from the resulting self-control and confidence. The government should enable its citizens to develop their minds, bodies and spirits to employ their reason unshackled [22]. The more life is enjoyed, the more pleasure in nature. The state must be Constitutionally bound to provide maximum pleasure to its people.

Equality:-

There must be no privileged classes in law rather laws should be amended on the basis of principle “higher the office bearer, higher would be the accountability and for that reason higher would be the punishment” [23]. It is quite unfair that lower classes of the society are becoming victims of CTD, CCD or they may lose their lives under self-styled definition of terrorism but no law for powerful privileged people or if it may be; then, they may get an easy escape as NAB failed in the Broad Sheet issue.

Protection against time inconsistency:-

There must be clear provisions in the Constitution that if the policy is being implemented; then, it must not be interfered merely due to political change because the public may not suffer due to the victimization of political people. State institutions may not be used for victimization & if political people may be ambitious to damage institutions for private revenge; then, it must be made cognizable offence.

Protection against short terms passions:-

No adventurism either, judicial, military, political, bureaucratic be allowed as it is usually under ulterior motives rather it must be made cognizable at law. The Supreme Court introduced self-styled regular Suo Moto (SMC) & Human rights (HRC) jurisdiction in 2005 but died by its natural death being short term passion of persons eager for publicity.

Disparity in granting Salaries to Public Servants:- All Public Servants i.e. Executive, legislature or Judiciary of the same scale or status must get the same salary as human needs are the same and working hours are also same.

Land Reforms:-

Shariat Appellate Bench decision in Qazalbash Waqf Case [24] be annulled being bad in law by bringing suitable amendment in Art. 253 of the Constitution and exemplary punishment be provided in the Constitution for rendering mala-fide decisions and causing internal disturbance & civil unrest.

Peace keeping:-

Preparation of all kinds of products injurious for life like weapons, narcotics, kite dori etc. be prohibited & cognizable at law.

Reward:-

Expenses from Public Exchequer in the sense of Salaries, Perks & Privileges, Development Budgets etc. are presumed to be for  productive & development purposes but if a citizen is doing this job voluntarily ; then, he must be rewarded irrespective of the fact,  he is formally notified or not or he may not be designated for that purpose. We are living in the era when services rendered are internationally recognized and paid. Many citizens are doing online jobs business and even getting rewards from YouTube. Whistleblower laws have not yet been implemented in Pakistan. A study by PIDE indicates that more than 50% of public expenditure in Pakistan are wasted in salaries, allowances and in-kind benefits, such as housing, vehicles and medical reimbursement which are not accounted for [25]. Reporting of Tax evasion, ownerless property, Money laundering, corruption etc. must be rewarded immediately preferably on the same day like traffic challan. Even pro bono litigants are rewarded worldwide but in Pakistan, they are discouraged under the hammer of cost.

Suicide Prevention:-

Constitution must not be a suicide pact but must be a sacred document moving the nation towards positive development. Some people have the perception that East Pakistan was separated because at the relevant time, there was no Constitution and now it is time to think as to why Pakistani people are leaving the country rapidly and are seeking political asylum [26] in different countries of the world? Why has the Constitutional machinery failed to render its respective duties? The Constitution of 1973 has lost its Islamic character in view of the above referred Supreme Court Judgement and also the fifteenth amendment. In 1976, Badi-uz-Zaman Kaikaus (a judge retired from the Supreme Court) also filed a petition in Lahore High Court challenging Islamic character of the Constitution. It is also neither Socialist (as land reform laws failed in Pakistan) nor this document is Democratic as it failed to identify the anonymous persons who entered the National Assembly on 10th September 2024 and prevailing over the policies of parliament.

 A state of fear is prevailing in the country and every sensible citizen is worried about governance and thinking that they must be under notice about the people who are governing the country and that too with defined power as secretive act is Zina and no legitimacy can be attached to the baby born out of it. Moreover, Allah Almighty himself informed the nations by sending messengers before their punishments as ordained in Quran. Therefore, a regular Think Tank or a Constitution Reform Portal for Public input need to be established for its proposals because amendments in the existing Constitution would not serve the purpose & effective governance needs the Constitution to be reframed.

REFERENCES:-

  1. The writer is founder member of The Jurists Foundation of Pakistan (Regd.) which is a forum for research minded people / academics and wants to render public service by bringing change in law according to the requirements of the society. His earlier publications in PLD Journal are PLD 2002 Jou.269, PLD 2006 Jou.84. The article in hand is written with the aim to make the fundamental document of the State i.e. The Constitution to be more useful for its people. Any suggestion can be texted on his cell phone number 0333 7436493.
  2. PLD 2016 SC 581
  3. Quranreading.com
  4. Quora.com
  5. Wikipedia.org
  6. Constitution of Pakistan 1973
  7. PLD 1992 SC 595
  8. 1993 SCMR 1718
  9. PLD 2015 SC 401
  10. Wikipedia.org
  11. The tumultuous history of 1973 Constitution by Marry Hunter
  12. Wikipedia.org
  13. Legal Framework Order 1970.
  14. Rules of procedure of NA as set out under schedule III
  15. Wikipedia.org
  16. Constitution.org
  17. Interim Constitution of 1972
  18. http://na.gov.pk
  19. International IDEA Policy paper No. 24
  20. Wikipedia.org.
  21. Britannica
  22. Civiced.org
  23. PLD 2012 SC 610 (Pak Steel Mill’s case)
  24. PLD 1990 SC 99
  25. Pide.org.PK
  26. The diplomatic insight

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