Constitution of any country is most important and sacred document. Every state has a constitution, since every state functions on the basis of certain fundamental principles and rules. It is like a skeleton in a human body without which one cannot survive. In the short span of this nation’s history of 62 years, we have witnessed three Constitutions, one interim Constitution and several Provisional Constitution Orders (PCO). The present Constitution, which has undergone material and drastic changes was enacted by the National Assembly on 10th April, 1973; authenticated by the President on 12th April, 1973. However, pursuant to Article 265 of the Constitution, 1973 it came into force on 14th August 1973. It is important to point out that the life of Fundamental Rights guaranteed under the new Constitution was very short and did not last for a day when the same was suspended through a Notification. Unfortunately, the process of defacing the Constitution was started by the same law givers.
The object for which independence from British rule was sought and for which this country was created was never seriously followed, in its true spirit, which resulted in the disintegration of Pakistan in the year 1971. The report of Chief Justice “Hamoodur Rehman Commission on Enquiry into 1971 War” speaks volumes about the ultra un-constitutional activities committed by the rulers after the independence. This report is confined till the year 1971. Thereafter, this country has further under gone worst constitutional crises. The political parties failed to avert these crisis and unfortunately our judiciary played into the hands of military rulers. Military rule was validated on the doctrine of successful revolution and law of necessity, thus legitimizing the dictorial rules of General Mohammad Ayub Khan and General Yahya Khan (see Dosso case __________________________________), Reference no.1 _____ _____________________________________ and the case of Nusrat Bhutto __________________________________________) It is difficult to summarize the events of the constitutional history in the short time allowed to me. In short this nation has witnessed the abrogation of the Constitution on four occasions. Dissolution of elected Government and Assemblies for five times. We have also seen murder of our first Prime Minister; execution of one of the popularly elected Prime Minister and the externment of the last elected Prime Minister. We have also witnessed on several occasions that the Armed Forces of this country have no respect for civil order and for half of our history we lived under military dictatorship. We have also witnessed the summary removal of several Judges of the Supreme Court and the High Courts through coercive powers of the usurpers. All these acts have defeated and frustrated the objects of the independence and hopes of the nation to live under a sovereign parliament and the Rule of Law.
It was hardly after a year or so when the Constitution was adopted by the parliament, that the first Amendment came into effect on 04-5-1974 through which 15 Articles were amended including Article 17 of the Constitution which extends right to form association and political parties. It was made subject to any “reasonable restriction imposed by law” in the interest of sovereignty or integrity of Pakistan. In addition the Federal Government was authorized to declare any political party acting in a manner prejudicial to the sovereignty and integrity of Pakistan and to make a reference to the Supreme Court within 15 days. The purpose of such amendment was obvious; to remove the NWFP Government. Again in the month of September 1974, the Constitution was amended, however, through third Amendment the then Government once again amended Article 10 of the Constitution, which provides safeguards as to arrest and detention whereby the maximum period of detention of a person was exceeded from one month to three months. Further concession was granted to the detaining authority when the time limit to furnish grounds of preventive detention was enlarged and it extended from 7 days to 15 days. The scope of proviso to clause 7 of Article 10 was also enlarged and it was made inapplicable in the cases of person acting prejudicial to the integrity and sovereignty of Pakistan, which in my humble view is an unexplained vague term, nowhere defined in the Constitution.
The Fourth Amendment by the PPP Government proved to be most controversial and the Bar Associations through out Pakistan particularly Lahore and Karachi Bar Associations protested since the life of the order granting an interim injunction by the High Court was limited up to the period of 6 months from the passing of such order, thus to some extent Article 199 of the Constitution which extends jurisdiction of issuing writs by the High Court was curtailed. Subsequently, there were two other amendments in the Constitution made by the same Government, who introduced the Constitution, 1973 which curtailed the tenure of the Chief Justices of the Supreme Court and the High Courts. After June 1977 the Constitution was put under abeyance and the military rules commenced which drastically amended the Constitution, 1973 defacing the same. The President was made more powerful at the cost of other institutions. During the years 1977 to 1985, the Constitution was abrogated for all practical purposes and the country was ruled through Martial Law Regulations, Orders, Ordinances and Provisional Constitution Order. The judiciary played a supportive rule, which made possible the military rule for eleven years, i.e. from 1977 till 1988.
The civilian rule during the years 1988 till 1999 was full of vengeance and vendetta. Both, the PPP and PML(N) were after each other which resulted in dissolution of three elected Governments under Article 58(2)(B) of the Constitution, a provision introduced by General Ziaul Haq through _____________________. No positive efforts were made to clean the Constitution from the unlawful and malafide amendments made during the dictatorial regime of General Ziaul Haq.
On 20th August 2002, the Legal Frame Work Order (LFO) was imposed by General Pervez Musharaf thereby extensively amending the Constitution by introducing several other new provisions. These were more than eighty (80) Articles which stand amended by the L.F.O. Even Article 17 which deals with the Fundamental Rights to form an association and political parties was once again amended. Although its preamble speaks of “smooth and orderly transition” but its result was to strengthen the one man rule. This time again, the role of Judiciary was the same as of General Ziaul Haq. The decisions in the case of Syed Zafar Ali Shah, Qazi Hussain Ahmed and paved way for continuance of military rule in Pakistan. All the acts, legislative and administrative of General Musharaf’s era have been legitimized by the Supreme Court without laying down the details of the so-called “declared objectives” as claimed by General Musharraf in his first speech. In the evening of 9th October 2002, another amendment was made in the L.F.O. through which the retirement age of the High Courts and Supreme Courts Judges was increased by three (3) years. No public discussion was invited as in the case of L.F.O.
While narrating history of amendments made in the Constitution, 1973 I intend to say that still it needs several amendments as those amendments made by the military rulers to suit their whims and wishes should be withdrawn and at the same time there is a great need to streamline the provincial autonomy; fundamental rights should be redefined and the rule of military in a civil set up should also be reviewed. Today, the moot question before this nation is whether we have achieved the goals for which we got independence in the year, 1947 and whether the Constitution, 1973 reflects will of the people after under going hundreds of amendments by the dictators.
For every constitutional set up, the crucial question is not whether the constitution or other law guarantees a particular right or liberty, but whether it is well protected so an individual could effectively assert. In the case of Jibendera Kishore Achharyya Chowdhury (PLD 1957 SC-9), the former Chief Justice Muhammad Munir held “……the very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of the constitution to say that a right is fundamental but that it may be taken away by law……”.
The Constitution is a fundamental law of the land. It is a living and evolving document, which requires interpretation in new and evolving circumstances in the country. We are living in a Federal system of Government, wherein diverse groups of people decided to live together and passed a Constitution of 1973 with political consensus in the country, which was a big achievement of the time. However, the Constitution is also required to be interpreted under new emerging and evolving circumstances. In my opinion, under the prevailing circumstances, lack of political consensus in the country, growing insurgency on the western front as well as other parts of the country, it is not possible rather improbable to have a consensus on a new Constitution. Furthermore, provincial domination over others provinces has also caused grievances between the provinces, and will be very difficult to cultivate consensus amongst provinces for a new document. In order to keep the federal system of government well functioned in the country, unity and consensus is the essential requirement, which under the prevailing political circumstances seems not possible. It is rather improbable that the 1973 Constitution is restored in its original Parliamentary form with its basic structure due to the amendments made over a period of time by the Military regimes. Another view is that restoring the Constitution to its original form as in 1973 perhaps may not a viable option available as so much water has passed under the river. Articles 270A, 270AA have been added in the Constitution and has been given validation by the Parliament, which has given protection to all the unconstitutional actions taken by the Military regimes/Dictators has defaced the basic original structure of the Constitution 1973. Similarly, the last Article 270AAA which was enacted by a military dictator also requires validation from the Parliament, which in my opinion, should not be given validation because all such validations have minimized the sovereignty of the Parliament in the past and any further validation will further minimize the parliament sovereignty, therefore no such validation should be given to Article 270AAA by the Parliament. Similarly, new fundamental rights can be incorporated in the Constitution to incorporate new and evolving rights due to changing circumstances in the society.
This nation had a very bad experience regarding constituent assembly, which was established pursuant to the provisions of the Independence Act, 1947. It took nearly 2 years for them to frame “Objective Resolution” and nearly 9 years for giving this nation its first constitution in the year, 1956. Contrary to this, in India it was hardly within span of three years that the Indian Constituent Assembly promulgated its first constitution. If once again a constituent assembly is formed for making a new constitution; I am not sure how long this process will take place in view of the prevailing situation in Pakistan. At the same time we need national consensus for evolving a compromise document, which in the present circumstances and in view of the political divide and un-rest in the country would be more difficult question.
Ladies and gentlemen, for the last 61 years we are waiting with anxiety and hope to see the real constitutional set up working in Pakistan. Today, we are with the hope of fulfillment of the promise of return to popular rule and for a democratic society. We have neither seen nor experienced the real independence. This generation is under heavy responsibility to guard the remains of Pakistan. We must stand guard against any tinkering with the constitutional dispensation. We must ensure that promises made are not promises meant to be broken. The times ahead are crucial. No doubt, we all have the will and determination to live our lives in an independence from the British Raj and to live through our lives in an independent country are two different experiences which requires different orientation. We must defuse and foil the natural tendency of the rulers towards despotism and absolutism.
We must endeavour for the unity of people. We must ensure that the rulers must respect law and all civil orders and lastly we must come out of the grip of the aftermath of independence, which has ingrained in the polity of our nation in the last six decades, in order to experience real independence and the constitutional rule. This could be guaranteed only under 1973 Constitution. In my humble view any new social contract between the four provinces and amongst the masses under present circumstances, would be very difficult to advice. There are issues of provincial autonomy, abolition of concurrent list, joint or separate electorate, separation of judiciary from Executive, women seats in Assemblies, extention of Fundamental Rights and question of accountability of politicians, bureaucrats, military personals and judiciary are to be resolved by making amendments in the Court. I submit that the ideal situation would be to have a new Constitution but this is not 1973 when the nation was under the shock of dismemberment and was desperate to have a constitutional set up after 13 years of military rule. In my humble view, the Constitution promulgated on 14th August 1973, without subsequent amendments, may be made workable for all with few amendments and that too with national consensus.