Process of Constitution Making in Pakistan and Role of Judiciary Essay

Outline:

  • Introduction
  • The responsibility of judicary
  • Govt. of India Act, 1935
  • Defunctionality of the constitution of 1956
  • Constitution of 1973
  • 8th Amendment in the constitution of 1973 by Zia-ul-Haq
  • Constitution, a pivotal document
  • Three pillars or state organs
  • Supreme Court, a creature of the constitution
  • Some important judgments reality to the interpretation of the constitution
  • Conclusion

The aspiration, hopes and desires of a nation are reflected in its. Constitution. The Constitution of a country is not just a document, rather it is the spirit of a nation to progress and make its place in the committee of nations. To have a Constitution is not an end, but a means of implementation and running of the business of Government.

Unfortunately, Pakistan, in its short history has not been very good at Constitution making and its Constitution has not been given due stature. We have been bending and modifying it at various junctures to suit the Governments in power.

In countries like ours where the Constitution is not understood by one and all, it is the judiciary on whose shoulders lies the guardianship of this sacred document. The learned members of the judiciary help the Government in interpreting it and running the day-to-day affairs. Various judgments of the Supreme Court of Pakistan and the High Courts are a testament to this status of the judiciary.

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In the present era every developed and developing country has a system of governance, which is enshrined in the book called Constitution. Constitution provides practical machinery for governance with in-built ground rules. Each country keeping in view its own peculiar circumstances and requirements, which may call for a particular system of governance, prepares a constitution.

Before partition, Government of India Act governed United India, 1935 which provided a full-fledged system of governance. After partition, United India was divided into India and Pakistan and for some time both the countries retained Government of India Act, 1935 till they made their separate Constitutions.

Geographical condition of Pakistan was such that it was in two parts; one called West Pakistan and the other East Pakistan, which were away from each other, and in between them there was the territory of India. Pakistan faced many complicated problems and there was delay in the making of the Constitution, which was framed and given to the country for the first time in 1956. That Constitution provided for Parliamentary form of Government with uni-cameral Legislature at Federal and Provincial levels. In the system there were only two Provinces called East Pakistan and West Pakistan.

Constitution of 1956 could not function successfully and resultantly Martial Law was imposed in the country in 1958, where under the Constitution was abrogated. In 1962, late Field Marshal Muhammad Ayub Khan, President of Pakistan, enacted and gave to the Country Constitution which provided for Presidential form of Government. In 1969, there was political, turmoil and late President Muhammad Ayub Khan, handed over power to late General Muhammad Yahya Khan who abrogated the Constitution and imposed Martial Law. He abolished One Unit in West Pakistan and as a result four Provinces of Punjab, Sindh, Khyber Pakhtunkhwa and Baluchistan were restored and general elections were held on the basis of adult franchise. There were other political developments in a consequence where a war broke out between India and Pakistan and finally East Pakistan declared independence and became Bangladesh.

Pakistan People’s Party, which came in power in the remaining part of the country and in 1972, gave to the country Interim Constitution followed by permanent Constitution of 1973, which contemplates parliamentary form of government. This Constitution was promulgated with the consensus of all the political parties represented in the National Assembly guaranteeing maximum provincial autonomy and providing for bi-cameral Legislature at the centre as National Assembly and the Senate.

On 5th July 1977 late General Muhammad Zia-ul-Haq, Chief of the Army Staff, imposed Martial Law and held in abeyance the Constitution. He banned the political parties and held elections in 1985 on non-party basis and subsequently there was demand for lifting of Martial Law and in the result Constitution was revived and 8th Amendment was made in the Constitution, which validated all Martial Law Orders and Regulations and gave more powers to the President than the Prime Minister.

Now there is no dispute that the Constitution is pivotal document supreme in its nature, which provide for system of the governance. It provides fundamental rights for the citizens requiring all other subordinate laws to be consistent with fundamental rights. It provides principles of policy and regulates the whole system of governing the country. It provides for amendment in the Constitution also.

Part VII of the Constitution starting from Article 175 onwards provides for the establishment of the Courts in this country and their jurisdictions. Article 175 provides that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other courts as may be established by law. It further specifically provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by under any law, System of governance contemplated under this Constitution provides for three pillars or State organs called Legislature, Executive and Judiciary.

Powers and functions of these three organs are defined in the Constitution and under the laws and in the scheme of the Constitution it is explained that these three organs will function independently in their own spheres maintaining balance and harmony to advance the purpose of the Constitution.

Supreme Court has held in the case of State vs. Zia-ur-Rehman and others. (PLD 1973 SC 49) that it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. Supreme Court accepted the position that it is a creature of the Constitution and it derives its powers and jurisdictions from the Constitution and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. In other words, function of the Judiciary is to interpret the Constitution and laws. Function of the legislature is to make the laws and function of the Executive is to implement the laws. It was held in the case of Fauji Foundation vs. Shamim-ur-Rehman (PLD 1983 SC 457) that in the Constitutional system of Pakistan though there is tracheotomy of powers between Executive, Legislature and Judiciary, yet each organ hås defined field of course with inherent limitations that one organ or sub-organ cannot encroach upon the legitimate field of other.

Since it is bounded duty of the Courts to interpret the Constitution and laws framed thereunder whenever deviation occurred from the Constitution in the shape of imposition of Martial Law interpretation of any provision of the Constitution was required, resort was made to the Courts and in that sense Judiciary has played active role in Constitution making with positive contribution.

Some very important and historical judgments are in the field relating to the interpretation of the Constitution, which can be called landmarks. In the year 1954 the then Governor-General declared State of Emergency and dissolved the first Constituent Assembly, which was entrusted with the task of framing the Constitution. Molvi Tamizuddin, who was Speaker of the Constituent Assembly, challenged this action of the Governor-General in the Chief Court of Sindh. Chief Court of Sindh gave judgment to the effect that the action of the GovernorGeneral was illegal, and revived the Constituent Assembly. This decision was upset by the Federal Court by majority of 4 to 1 holding that section 223 (A), which was added to the Government of India Act, 1935, was not assented to by the Governor-General, hence was not a valid piece of legislation. Sindh Chief Court under therefore, held it that section was ultra vires of the Constitution. This ruling rendered many other statutes and laws, which were not signed by the President, as invalid and in consequence the Governor-General issued an ordinance whereby he sought to validate all such invalid laws. The Ordinance further authorised the Governor-General to make provisions for framing a new Constitution.

Later, this Ordinance was struck down by the Federal Court in the case of Yousaf Patel vs. Crown (PLD 1955 FC 387) and it was held that validation amounts to fresh legislation, and therefore, the Governor-General, in the absence of a Legislature, cannot validate what he cannot legislate. This decision of the Court came as a shock to the Government and resulted in Constitutional and legal crises. On this issue, the Federal Government made a reference to the Federal Court seeking advice. The Court after hearing the reference came to the conclusion that the Constitution Assembly having functioned for seven long years failed to produce a Constitution, hence such failure rendered the Constituent Assembly. Acting on the “doctrine of necessity” the Court further held that the Governor General was justified in validating the invalid laws for the interim period, and the question of validation will be finally decided by the Legislature. The Court observed that the Governor-General should constitute a new Constituent Assembly, which will be competent to legislate and frame a new Constitution for the country.

In the result Constitution was enacted on 23rd March 1956. This Constitution was parliamentary in form and federal in structure providing a chapter on fundamental rights and empowering the High Courts to enforce the same through the issue of prerogative writs. This Constitution barely worked for two and a half years and was abrogated on the night between 7th 18th October 1958 when Martial Law was imposed. This action came up for judicial scrutiny before the Supreme Court in the case of State vs. Dosso (PLD 1958 SC 533). It was held by the Court that victorious revolution or a successful coup d’etat is an internationally recognised legal method of chaining the Constitution. It was so held on the basis of Hans Kelsen’s theory of “revolutionary legality”. This decision was over ruled by the Supreme Court in the case of Asma Jilani vs. Government of Punjab (PLD 1972 SC 139). It was held in this case that Field Marshal Muhammad Ayub Khan had no power to hand over power to the Commander-in-Chief for the reason that in the Constitution of 1962, which was enacted by Field Marshal Muhammad Ayub Khan himself, it was provided under Article 12 that the President could send his resignation to the speaker of the National Assembly, who could take over as Acting President to hold elections within 90 days.

Under Article 30, the President could proclaim emergency if the security or economic life of the country was threatened by the internal disturbances. Field Marshal Muhammad Ayub Khan did not proclaim emergency himself but called upon the Commander-in-chief to perform his legal and constitutional obligations, who had no authority in the Constitution to impose Martial Law. In such circumstances, it was held that act of General Muhammad Yahya Khan imposing Martial Law amounted to the usurpation of power, which legally did not belong to him and cannot be justified as extra-constitutional step.

The third Martial law was imposed in the country on 5th July, 1977 which was challenged in the Supreme Court in the case of Begum Nusrat Bhutto vs. Chief of Army Staff etc. reported in PLD 1977 SC 657. Background of this case is that elections were held in March 1977 and result of the polling was rejected by opposition i.e. Pakistan National Alliance (P.N.A.) who had boycotted the polls for Provincial Assemblies. P.N.A. launched agitation resulting in political crisis and in consequence Chief of Army Staff, late General Muhammad Zia-ul-Haq imposed Martial Law on 5th July 1977 and held the Constitution in abeyance. It was held by the Supreme Court firstly that the Constitution of 1973 was still the supreme law of the land subject to the conditions that certain parts thereof have been held in abeyance on account of state necessity. Secondly, that President and superior Courts constrained to function under the Constitution. Thirdly, that C.M.L.A having validly assumed power in the interest of state necessity was entitled to perform all such acts including amendment of the Constitution within the scope of law of necessity. Fourthly, those superior Courts contained to have the power of judicial review and could Judge any act or action of Martial law Authorities in the light of principle underlined in law of the necessity. Subsequently, elections were not held within the reasonable time and power of judicial review of superior Courts was also taken away by promulgating Provisional Constitution Order, 1981.

Later, elections were held on non-party basis and Martial Law was lifted in the bargain of the Amendment, which was inserted in the Constitution, validating all Martial Law actions and regulations and giving more powers to the President than the Prime Minister as contemplated in the amendment made in the Constitution. Under that provision, President was entitled to dissolve the Government of the Prime Minister in his discretion.
Exercising powers under Article 58, the then President Zia-ul-Haq dismissed the Government of the Muhammad Khan Junejo, who was the Prime Minister and this action was challenged in the case of Federation of Pakistan and others vs. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166) and the Supreme Court interpreted Article 48 in conjunction with Article 58 (2) (b) of the Constitution and held that power of dissolution is not entirely discretionary but is subject to the grounds stated in the Constitution President is required to form an opinion based on objective realities which is condition precedent for the exercise of the discretion.

Exercise of such discretion must be based on conditions stated in the Constitution, namely, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. This view was reiterated in subsequent judgment in the case of Ahmad Tariq Rahim vs. Federation of Pakistan (PLD 1992 SC 646). In that case President Ghulam Ishaq Khan dismissed Government of the then Prime Minister. Supreme Court again examined the same proposition when Government of Muhammad Nawaz Sharif, the then Prime Minister, was dismissed by the then President Ghulam Ishaq Khan and that decision is reported in PLD 1993 SC 473. Supreme Court in majority decision in Nawaz Sharif’s case held that valid and cogent reasons were not given in support of order of dissolution. On 12 October 1999 the then Prime Minister Mian Muhammad Nawaz Shrif was overthrown and General Pervaiz Musharraf took over as Chief Executive of the country.

It would appear crystal clear from the judgments of the Superior Courts of this country mentioned above that the Courts including the apex Court have always tried to interpret the provisions of the Constitution and extra-Constitutional measures adopted in imposing Martial Law from time to time after every objective assessment of the Constitution and prevailing conditions to find solution to the legal and political crises. The Courts have always done so within the framework of the Constitution in order to maintain the rule of law and supremacy of the Constitution. In this manner, the Supreme Court has made a positive contribution by its judgments to interpret the Constitution as is required under the Constitution which is the supreme document, to which all laws of the land are subordinate and which provides a system of governance for running the country on democratic lines as is enshrined in the Constitution.

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