Pakistan's Constitution Jayshree Bajoria Staff Writer, Council on Foreign Relations Tuesday, March 11, 2008; 12:47 PM
Pakistan's constitution has been undermined greatly by a circular pattern of military coups interspersed with short-lived civilian rule. Today, Pakistan's leading political parties are demanding a shift away from presidential power and far greater executive power for the prime minister. Additionally, they demand an independent judiciary and the reinstatement of judges sacked by President Pervez Musharraf in November 2007 under his state of emergency. Demands for such sweeping changes have a long history in Pakistan, which has repeatedly revised or reinvented its government's charter, often under duress during times of military rule. Not until 1973 would a constitution be written by a democratically elected assembly. Even following that, the document has been continually reshaped by coups and the wishes of powerful members of Pakistan's political elite.
Experts say some of Pakistan's main constitutional principles and controversies still stem from colonial times. At the time of its independence in August 1947, Pakistan inherited the Government of India Act of 1935 (PDF) as its constitutional model -- a framework designed by a colonial power to govern a colony that provided for a strong central government, a bureaucracy dominated executive unanswerable to the legislature, and very limited representation with continuation of feudal domination over politics. Under this act, the head of the state was the governor-general and legislative functions were performed by the constituent assembly, which was tasked with enacting a new constitution. The governor-general had the power to appoint or dismiss ministers at his discretion as well as assume emergency power.
1956 Constitution: The constitution of Pakistan that came into existence on March 23, 1956, abolished the office of the governor-general and provided for power-sharing arrangements between the president and the prime minister. East Pakistan (now the independent state of Bangladesh) and West Pakistan (known as Pakistan since 1971) were to have equal seats in the national legislature. While parliamentary and federal in form, the constitution ensured that the president retained supreme powers and the center was more powerful than the provinces. But this constitution had a very short life. The country's first general elections were scheduled for February 1959, but President Iskandar Mirza, fearing a rise in East Pakistan's influence could undermine his hold on power, abrogated the constitution before the elections in 1958, establishing martial law and appointing army chief Ayub Khan as chief martial law administrator. This set a precedent for the military to assert itself into the country's political affairs. It also led to a pattern of takeovers, subversion of constitutional provisions, and a military-bureaucracy dominated executive that superseded the elected parliament.
1962 Constitution: A new constitution came into effect in 1962 which failed to include fundamental rights until the first amendment was made to it, granting the executive power to the president and abolishing the office of the prime minister. Most significantly, it institutionalized the intervention of military in politics by providing that for twenty years, the president or the defense minister must be a person who had held a rank not lower than that of lieutenant-general in the army.
In 1969, the 1962 constitution was suspended, martial law was declared, and General Yahya Khan took over. After the secession of East Pakistan to form the new state of Bangladesh, a new constitution was brought in 1973.
The 1973 Constitutional Framework
The 1973 Constitution was the first constitution to be framed by elected representatives in Pakistan. It provided for fundamental rights and provisions to accommodate Pakistan's status as an Islamic state.
The 1973 constitution created a parliamentary form of democracy in which the executive power is concentrated in the office of the prime minister. It established the Pakistani president as the formal head of state, bound to act on the advice of the prime minister. The parliament consists of two houses -- the national assembly and the senate. The Constitution also provides for four provincial governments and the distribution of legislative power between the federation and the provinces. Moeen Cheema, assistant professor of law and policy at Lahore University of Management Sciences, says that though the constitution provided for it, provincial autonomy was never really implemented by the 1973 constitution. He holds all military and civilian governments guilty on this charge.
The new constitution included an article (6) which stated anyone who now abrogated or attempted or conspired to abrogate or subvert the constitution shall be "guilty of high treason." It was an attempt to guard against the takeover of the state by future military rulers. This did not stop army chief General Zia ul-Haq from staging a coup, proclaiming martial law in 1977, holding the constitution in abeyance, and putting in its place a Provisional Constitutional Order (PCO). The PCO not only gave the military regime the right to rule but also the right to amend the constitution at will. The regime used this to fashion a new constitutional order for the post-martial law period. In 1985, the 1973 constitution was revived but an eighth amendment was introduced into the constitution that changed its basic structure and some of its essential features. It shifted the executive power from the office of the prime minister to that of the president and under article 58(2)(b) he was also given the right to dissolve the national assembly at his discretion. Experts say the amendment diminished provincial autonomy and created a weak legislature and a docile judiciary.
Article 58(2)(b) was used in the 1990s by the president to dismiss the elected governments of Prime Ministers Benazir Bhutto and Nawaz Sharif on charges of corruption. Sharif, when he came to power a second time in 1997, abolished the article and instead gave the prime minister the power to dissolve the national assembly. When Army Chief General Pervez Musharraf deposed him in a coup in 1999, yet another phase of constitutional amendments began.
Military Rulers and the Constitution
Experts say there is a clear pattern to the military coups and the classic maneuvering that follows to give these coups legitimacy and strengthen the powers of the military rulers. Tracing it from the first military takeover to the most recent one (in 1999 by Musharraf), Cheema says the army chiefs take six important steps. They co-opt the bureaucracy; use accountability against politicians; entrench the army in political and civil affairs; create a new breed of politicians subservient to them under the guise of local government reform; hold elections to create some sort of democratic legitimacy; and finally move to co-opt the judiciary.
Ali Khan, law professor at Washburn University of Law in Kansas, says the military rulers give themselves immunity through the constitutional amendments so that they can't be tried for proclaiming emergency or for any of their other actions. "They also say these amendments can't be challenged in a court of law," he says.
Role of the Judiciary
As this Backgrounder points out, Pakistan's courts and judges are cast as protectors of the constitution in a separation-of-powers system. In many circumstances, however, they have found it expedient or necessary to accommodate constitutional changes or unconstitutional maneuvers by Pakistan's leaders. They have done so either because they thought this was essential to their own survival or that of the state.
Legal history expert Tayyab Mahmud writes in Utah Law Review that while the successive constitutional crises that confronted the Pakistani courts were not of their own making, "the doctrinally inconsistent, judicially inappropriate and politically timid responses fashioned by the courts ultimately undermined constitutional governance." The refusal of the Chief Justice and twelve other Supreme Court judges to sign Musharraf's decision to suspend the constitution and
rule by decree in November 2007, for the first time, brought the judiciary and the executive in direct confrontation with each other.
Musharraf's 1999 coup, declaration of emergency, and creation of a PCO were also validated by the Supreme Court on the basis of the doctrine of state necessity. The PCO barred any court from making any order against the Chief Executive (Musharraf) or calling into question the emergency. The Supreme Court gave Musharraf the authority to amend the constitution and three years to hold general elections. In 2002, Musharraf engineered a controversial referendum which elected him as president for five years. The referendum also put in place a legal framework order which, through article 58(2)(b), restored power in the president to dissolve the national assembly at his discretion.
Musharraf was reelected in October 2007 in another controversial election. The following month, he declared another state of emergency, suspended the constitution (which had been amended through the legal framework order), and brought in another PCO. This time the PCO targeted the judiciary and the media.
As per the constitutional provision, a presidential ordinance in Pakistan can only be effective for four months unless it is approved by parliament or is reissued. Human rights activist I.A. Rehman writes "the extra-constitutional regimes have developed a tradition of exempting ordinances issued while the constitution is in abeyance." Therefore, he says, the ordinances issued by General Musharraf between October 1999 and November 2002 are not subject to the lapse rule even though they never received the parliament's approval. These include the two ordinances that amended the basic media laws barring the use of any material which defames or brings into ridicule the Head of State, or members of the armed forces, or executive, legislative or judicial organs of the state. "A more draconian curb on the freedom of expression cannot be imagined," writes Rehman.
Under an amendment to the 1952 Army Act, the military can now try civilians for a wide range of offenses previously under the country's judiciary. "The military is Pakistan's principal human rights abuser, yet Musharraf has changed the law so that it can play judge, jury, and executioner," says Ali Dayan Hasan, a South Asia researcher at Human Rights Watch. Another decree has ended the independence of the Pakistani Bar Association. Hasan sharply criticizes the move as politically motivated: "This is a despicable attempt to end political opposition by threatening the livelihoods of government critics."