On April 10, the National Assembly held a special national constitutional convention in Parliament House, attended by parliamentarians, members of civil society, and Supreme Court Justice Qazi Faez Isa, the next chief justice in waiting, to commemorate the golden jubilee of the fiftieth anniversary of the 1973 constitution. Imran Khan’s PTI was absent.
There are two buildings standing next to each other in front of Constitution Avenue. One hosts the Supreme Court of Pakistan, headed by the CJP, and the other hosts Parliament, headed by the PM. Unfortunately, the heads of the two neighbouring buildings are in head-on collision, and the constitution, on the eve of its 50th anniversary, seems helpless to avert the conflict between the two organs of the state. The inhabitants of both buildings are deeply divided among themselves and are damaging the image of the only Muslim nuclear state, where people are in long lines and dying for the free collection of 10 kg of atta, where people are without electricity and gas, and where they are facing unprecedented inflation coupled with insecurity and threats to their lives due to the resurgence of terrorist activities.
What are the roots of the recent judicial crisis?
Apparently, the judicial crisis stems from three related causes. 1) The main cause is the presidential reference against Justice Qazi Faez Isa. Several PTI leaders now publicly blame that reference as the joint brainchild of then-law minister Farogh Naseem and the military establishment. However, the failure of some judges at the time, including Chief Justice Umar Ata Bandial, to recognise this and treat it accordingly created deep and abiding rifts.
2) The co-related cause in this regard is the consistent trend, since 2017, of SC decisions in favour of PTI, and specifically the consistent hearing and granting of relief to Imran Khan by the famous three-judge bench headed by the CJP against political parties and leaders forming part of the PDM. This evident trend has also been a cause of concern for the brother judges, who have voiced this concern openly in their notes of dissent, leading to their perceived exclusion from or marginalisation on the benches hearing such cases.
3) Deep cracks have happened amongst the judges of the Supreme Court on the issues of suo motu taken by CJP Umar Ata Bandial with regard to holding elections of the two dissolved provincial assemblies and the formation of a like-minded three-member bench headed by himself to hear the said case and the validity of the minority and majority verdicts of that bench. Most importantly, the demand of the political parties, bar associations, and even brother judges of the Supreme Court for constituting a full court, but the consistent denial of the CJP in this regard.
This judicial crisis has now resulted in an almost constitutional breakdown. Parliament has rejected the verdict of the three-member bench headed by the chief justice of the Supreme Court and refused to provide 21 billion rupees to the election commission for holding elections for the two incumbent provincial assemblies. Further, parliament has passed a bill to cliff the wings of the CJP with regard to formation of branches and as preemptive action, the Supreme Court’s eight like-minded members bench headed by the CJP prevented the parliament from changing the bill into enactment till the next hearing of the validity of the case on May 2.
In fact there is no harm if the power of CJP is shared by two other Judges as proposed in the bill passed by the parliament because Lord Acton has rightly said, “Power tends to corrupt and absolut power corrupts absolutely “.
introspection of our constitution in the face of a judicial crisis
It was a good opportunity for all organs of the state and institutions, and particularly for the parliamentarians on the fiftieth anniversary, to deeply reflect on the causes of the three-time abrogation of the constitution by the military dictators, its shortcomings, its non-implementation in its true spirit, and particularly the recent judicial crisis in the presence of the 1973 constitution, and look into their consciences and minds as to how they have abided by the constitution in its original spirit.
No doubt, it is a landmark document that categorically enshrines democratic norms and envisions a pluralistic and progressive society. Its canons of governance are federal in essence, with maximum provincial autonomy, particularly after the 18th Amendment, and assure at length social justice and equality, as it consciously bestows sovereignty on the people’s chosen representatives.
In fact, our present Constitution, from its preamble to its principles of policy, and the subsequent 23 amendments, have evolved into an organic testament. All that is needed is its implementation in letter and spirit, with the astute resolve of all organs of the state and institutions to hold it supreme, free from the hobnobbing of petty interests. In fact, as a nation, we have always been lacking on the implementation side since the beginning.
Our constitutional history depicts that every organ of the state and its institutions, specifically the establishment, have treated the constitution as Gen. Musharraf’s famous “piece of paper” to be thrown in the dustbin. Therefore, the 1973 Constitution has seen every form of dispensation in its five decades of existence. From weak elected governments to military rules, and from the law of necessity doctrines to the 18th landmark amendment back in 2010, which literally rewrote the working relationship of state organs and addressed most of the grievances of the smaller provinces,
Is the 1973 Constitution a perfect document? Or are further amendments required?
The answer is not necessarily. This constitution is a living document, like other constitutions around the world. As the 18th Amendment has shown, it is equipped with the tools to resolve disputes among the federating units and address shortcomings. The only solution lies in respecting the constitutional order and working to implement the lofty goals laid out by the basic law, and most importantly, in keeping the door open for further amendments while safeguarding the interests of the three federating units, specifically the smaller federating unit of Baluchistan.
Pakistan is a federal parliamentary republic, with powers shared between the federal government and the provinces. The relationship between the federation and provinces is defined in Part V (Articles 141–159) of the constitution. Under the 1973 Constitution, Pakistan adopted a bicameral system at the centre, called “the Parliament,” composing the President, the National Assembly, and the Senate.
The National Assembly According to Article 51(3) of the Constitution, it consists of 326 seats, out of which 173 come from Punjab. 75 were from Sindh, 55 were from Khyber-Pakhtunkhwa, 20 were from Balochistan, and 3 were from ICT. It shows that Punjab is more dominant in the National Assembly than the other three federating units.
Since the National Assembly enjoys exclusive powers to consider money bills, including the annual budget, to make policy, to make government accountable, to regulate and direct, and to conduct parliamentary hearings, in such constitutional arrangements, the smaller provinces were not in a position to safeguard their rights in the face of the predominant position of Punjab in the National Assembly; therefore, for the first time in history in 1973, a bicameral system of senate was introduced.
Under Article 59, the Senate is a permanent legislative body with equal representation from each of the four provinces, elected by the members of their respective provincial assemblies. Though equal representation is granted to all four federating units to safeguard their rights in case the National Assembly passes some acts against their interests, in fact the Senate has been made powerless by design, specifically with regard to money bills and the preparation of budgets. In fact, the Senate has become a debating club because of two reasons: its limited powers and the way its members are elected through an indirect vote by the electoral college.
To make it workable, further constitutional amendments are required.
Surely, 50 years of our constitutional history call for celebrations, but what is most important is making the document actually work. Unfortunately, that has not happened due to some lacunae despite massive changes to the constitution under the 18th Amendment. Therefore, the following steps are required to make it a more consensus-driven and workable document:
First.
Article 59 needs to be amended to make the Senate powerful and elect its members through direct election rather than an electoral college, so that horse trading is averted. However, a two-thirds majority in the parliament is required for such amendments, which is almost impossible for three provinces in the existing majoritarian democratic system and Punjab-dominated federal structure. Therefore, article 239 with regard to a two-thirds majority for amendments in the constitution needs to be revoked by introducing a one-third majority, enabling the smaller units to introduce amendments in the constitution.
Second, to make the constitution a workable document, the following articles need to be revisited for effective implementation.
There are around twenty articles covering fundamental human rights in the 1973 constitution. Unfortunately, not one of them has delivered for the people of Pakistan. Particularly, freedom of speech, equality before the law, a fair trial, security of life, honour, and property, protection of their culture and language, safeguards against arrest and detention, and rights to education, etc.
Section 124-A of the Pakistan Penal Code, which defines sedition, criminalises any action bringing or attempting to bring hatred, contempt, or disaffection towards the government. Since independence, this colonial remnant has been arbitrarily used in Pakistan as a tool to muzzle dissent and free speech. Section 124-A contravenes Article 19 of the Constitution, which grants the right to free speech. This section needs to be removed forthwith.
Article 140(A) of the 1973 constitution of Pakistan clearly mentions that there must be a politically and financially authorised and empowered local government system, but it has become a daydream in Pakistan.
Private militia. The government, in compliance with Article 256 of the Constitution, must ban all private militias, regardless of their size and patrons, and declare possession of arms as the exclusive domain of the state.
Articles 62 and 63 are highly controversial and misused. According to these articles, a person may be qualified or elected as a Member of Parliament provided he has adequate knowledge of Islam and is essentially “Sadiq and Ameen” (honest and righteous).
Council of Common Interest Article 153 was amended to provide: (i) The Council shall consist of the Prime Minister as Chairman of the Council; and (ii) the Chief Ministers of the Provinces. (iii) Three (3) Members from the Federal Government to be nominated by the Prime Minister from time to time. The consul has so far failed to address the issues raised by smaller provinces.
The ongoing stampede between the judiciary and parliament, particularly deepening cracks, infighting and egotistical behaviour reflects the sense of judicial tribalism in the superior judiciary. Furthermore , factionalised political elites, has resulted in a fractured polity, a hollowed-out economy, de-industrialisation, capital flight, brain drain, endemic shortages, widespread poverty, societal breakdown, and social chaos. Such a chaotic condition if continued will derail the whole system and land the country into wilderness and the loser will only be the poverty stricken public. Hopefully good sense will prevail and both warring parties will move towards an amicable solution to the crisis.
Sher Khan Bazai. The writer is a retired civil servant served as secretary of education in the government of Balochistan. He can be reached at skbazai@hotmail.com.
