Constitution is the supreme law of the state. A state cannot be without a constitution. It is the basic framework of laws. No law passed by the state can contradict the constitution.
Constitutional History of Pakistan:
Pakistan at the time of Independence didn’t have its own constitution so it was governed under the Indian Government and 1935 given by the British for United India. Through Quaid-e-Azam established the required framework for making constitution but unfortunately, he died just one year after inception of Pakistan. After him a power struggle initiated between various organs of state. The tussle damaged the country and for 9 years the constitution could be made. Finally in 1956, the first constitution was established which not even fully enforced was abrogated by Dictator Ayub Khan in 1958 as he took over the government. Afterwards in 1962, he gave the 2nd Constitution of Pakistan and introduced Presidential system through the founders had envisioned Federal Parliamentary System of Government for Pakistan. The world knows that pluralistic societies are often governed better. Quite naturally the dictator’s government could not sustain and so did his constitution. He had to resign in 1969 owing to the worse law and order situation in the country particularly in East Pakistan under Ayub’s governance. The collisions made against him also forced him to resign as they left him with no other option. Yahya Khan took reigns of the government and conducted elections which were the final blow in the separation of East Pakistan. Consequently, East Pakistan became Bangladesh and West Pakistan became Pakistanunder the government of Zulfiqar Ali Bhutto. It was under his leadership that for the first time in Pakistan the democratic forces unanimously framed the constitution of 1973, which is still intact and Pakistan today is being governed under this Constitution.
Constitution although the Supreme Law of land but certainly is not a Divine Revelation. The basic values remain same but there is a room in the constitution to amend it according to the changing needs of time or any problem that may arise later in same time once the constitution has been framed. The path to be followed for making an amendment is also provided in the constitution at the time of its framing by the framers.
For an amendment to the made in the Pakistani Constitution, 2/3 majority of both houses the Senate and the National Assembly is required. Without this majority amendment can be passed.
Amendment’s in Pakistan’s Constitution:
23rd Amendments have been made so far in the constitution. The first most important development in this respect which did even haunt the state several times was the 8th amendment.
Zia Ul Haq subverted Bhutto’s government in July 1977 and imprisoned him. He suspended the constitution and promised to conduct elections. Though he didn’t promulgate presidential system openly like Ayub but perpetuate his power conducted Sham elections as a result of which Mr. Khan June from Sindh elected as the Prime Minister. Through the so called Zia’s parliament, he got passed the 8th amendment.
After this, the article 58 allowed the President to dissolve assembly on his own without the request of Prime Minister. Before the amendment the power was vested with the Prime Minister, who if wanted could request the President to dissolve the assemblies. Zia Ul Haq also tried to give a legal cover to his military, coup by invoking the doctrine of necessity and even he got it approved from the judiciary by use of force.
Later, Zia Ul Haq used the power against his own Parliament and blaming the Junejo’s government of corruption, poor governance, nepotism etc sent them home. After Zia Ul Haq died in a plane crash, Ghulam Ishaq Khan came to power and conducted fair elections Benazir Bhutto’s PPP came to power but not with enough majority required to get rid of the amendment. Just 18 months after elections, the President put allegations of corruption on the government and dissolved assemblies by using article 58. Again elections were conducted. Nawaz Sharif came to power. GIK did the same with Nawaz Sharif too. Nawaz moved the court which restored the government but owing to the heavy pressure due to owngoing tussle in the high elections Nawaz had to resign himself. Upcoming election again brought Benazir to power with Farooq Leghari of PPP at the President. Afterwards the fortunes of Benazir using the same article yet again. If we speak in a nutshell, the 8th amendment haunted the state several times and hampered the smooth movement of democratic wheel in the country.
Finally in 1996, Nawaz Sharif was elected as the Prime Minister having the required majority to get rid of article 58.
Through the 13th amendment in the constitution, article 58 was repealed and the power to dissolve assemblies was taken away from the President. Now he could only dissolve the assemblies on the request of Prime Minister.
Floor crossing or horse trading was very much common in those times. Fearing that the majority he got after a long struggle could shift owing to the trends of floor crossing. Nawaz Sharif get passed the 14th amendment from the Parliament. After the amendment floor crossing was declared illegal and disqualification from the assembly was prescribed as the punishment for violation.
Though could not be materialized. Nawaz Sharif through the amendment tried to assume the title of Ameer-ul-Mommin and to enforce the Shariah Law.
Nawaz Sharif”s government was subverted by Musharaf in 1999, who suspended the constitution and later conducted a Sham election to get assembly installed on his own discretion. Through the puppet assembly, he got passed 17th amendment which re-invoked article 58 and gave him powers to dissolve assemblies on his own.
Benazir Bhutto was assassinated in 2007. Ultimately Musharraf had to resign and PPP’s government was established after elections of 2008. Though it had not the two third majority but had the support of the other parties due to sympathy for Benazir and cause of opposing dictatorship. With this support 18th Amendment bailed as a reform package as there was a popular demand of whole political spectrum for constitutional reforms. A constitutional reform committee was established under Raza Rabbani, a veteran politician. Committee presented its recommendations to the parliament which after discussion passed the 18th Amendment in April 2010. Following are the major achievements:-
- Article 58 was repealed. Powers were taken from the incumbent President and given to the Prime Minister.
- Concurrent list was abolished and residual powers were transferred to the Provinces in order to make them autonomous and to give a blow to seditionary forces.
- Appointment of Chief of air, naval and army staff and chief of joint staff committee and governor will be done by the President on the request of Prime Minister.
- Chief Election Commissioner will be appointed by Prime Minister after consulting with the opposition leader.
- Jurisdiction of Political Party Act was extended to FATA to allow the political activity to evolve in the region.
- President’s power of issuing ordinance was reduced in its scope.
- NWFP was named as Khyber Pakhtoon
- For declaring emergency in the province, the condition of unanimous resolution from their respective Provincial and National Assembly was deemed necessary. To declare the emergency in whole country resolutions of all provincial assemblies and National Assembly will be required.
The procedure of appointment of judges to the Superior courts was also amended in the 18th Amendment but a write petition was filed in the Supreme Court against the particular clause. Superior courts referred it back to the NA with its own recommendations. NA discussed the segment in light of recommendations and reluctantly 19th Amendment was passed on 1st January 2011.
Before 18th Amendment for appointing a judge to the apex court the Chief Justice of Pakistan forward a panel of the judges to the President who would then appoint the judge. Mostly Chief Justice also forward his top most recommendations among the panel. For appointing the Judge of High court, Chief Justice used to forward the panel to President channeled through the Governor and Chief Justice of Pakistan. All in all, the Chief Justice of Supreme Court was the most powerful man in this regard. 19th Amendment repealed the practice and gave the power of appointing judges to the Superior courts to the judicial commission.
Judicial Commission should comprise the following:
- Chief Justice of Pakistan
- Federal Law Minister
- Attorney General of Pakistan
- 9 Most Senior Judges of Supreme Court
- One former Supreme Court Judge to be nominated by Chief Justice.
- A lawyer to be nominated by Pakistan.