SUBVERSION OF THE BASIC LAW
In Pakistan's constitutional history, neither the politicians nor the military leaders respected the Basic Law. General Zia had once proudly proclaimed that he could tear up the constitution and throw it into the dustbin whenever he liked. This he nearly did with his wanton disfigurement of the constitution through the Eighth amendment.
Subversion of the basic law began with the dissolution of the Constitutional Assembly in October 1954 when it was about to complete the drafting of the constitution. Governor General Ghulam Mohammad dissolved the Assembly that was clipping his powers. The second Constitutional Assembly, selected by the provincial legislatures, finally approved the first constitution that was enforced on 23 March 1956. Major General Iskandar Mirza, the first President of Pakistan, on 7 Oct. 1958 abrogated the 1956 constitution and appointed General Ayub Khan as the Martial Law Administrator. Three weeks later President Mirza was himself overthrown by General Ayub Khan.
In March 1969, General Ayub Khan himself violated his own constitution by handing over power to the Commander-in-Chief of the army, General Yahya Khan, instead of the National Assembly Speaker as was provided for the transfer of power in the constitution. General Yahya Khan abrogated the 1962 constitution of Ayub Khan and introduced the "Legal Framework Order" containing the rules relating to the holding of general elections and framing of the future constitution.
On 10 April 1973, Zulfikar Ali Bhutto secured a unanimous approval of the constitution from the National Assembly. The constitution came into force on 14 August. However, before Bhutto was overthrown by General Zia in July 1977, he had introduced seven amendments, some of them changed the shape of the basic law.
Only one year after the unanimous approval of the 1973 constitution, the first constitutional amendment was introduced on May 9, 1974 to amend the Article 199 which barred the judiciary from "issuing writs in the instance of a person who served in the armed forces of Pakistan, or who was for the time being subject to any law relating to any of those Forces, or in respect of any action in relation to him as a member of the armed forces or as a person subject to such law." The first Constitutional Amendment Act amended 15 articles and one schedule.
Under the second constitutional amendment, the Qadiani sect was declared as non-Moslem. The third amendment empowered the government to detain a person without trial up to three months. In November 1975, by means of the Fourth Amendment to the Constitution, the power of the High Court under Article 199 for the grant of bail to a person detained under any law providing for preventative detention was taken away. The High Court was also denuded of the power to make an order prohibiting the detention of a person. Its power to grant a stay order against the government was confined to the span of 60 days only in relation to public revenue and other specified cases. In September 1976 there followed notorious Fifth Amendment under which the grotesque provision was made that after a Chief Justice, whether of the Supreme Court or of a High Court, had held office for a period of five years, then notwithstanding the fact that he had not attained the age of retirement he was liable to be demoted to the status of an ordinary judge of his court or else forced to leave office. Suspending the rules of procedures, both these debilitating amendments were pushed through parliament, without discussion, in a matter of hours.
In October1985, Prime Minister Mohammad Khan Junejo's government persuaded the National Assembly to pass the 8th Amendment to the Constitution. The agenda for the amendment was President's Constitutional Order No. 14 of 1985 which incorporated severe constitutional changes for ratification by the Assembly. Article 8 of the PCO said that any laws inconsistent with fundamental rights are void, shall not apply to the president's orders. This finesse was necessary because General Ziaul-Haq had agreed to support and defend the 1973 constitution in the Nusrat Bhutto case (1977). The National Assembly passed the 8th amendment unanimously, under threat of martial law, on 17 October. Martial law remained in force while the National Assembly discussed the 8th amendment and was lifted on December 31, 1985, two and half months after the house had approved the amendment.
Criticizing the 8th constitutional amendment International Commission of Jurists said "its foremost purpose is to uphold the rule of the present President, Ziaul Haq.. The constitution contains nothing to prevent the President from reintroducing martial law." Writing under the title "Zia moves to consolidate power" the Financial Times London said: "The constitution has been personalized by Zia."
General Zia's Eighth Amendment to the constitution has created two centers of power. While the Prime Minister is the chief executive and the President has virtually no role in the day-to-day running of the country, the Article 58 (2) empowers the indirectly elected president to dissolve the National Assembly if "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."
The Twelfth Constitutional Amendment
During Nawaz Sharif's first stunt in office, the constitution was amended to add article-212B in order toestablish Special Courts for trial heinous offences. The Artice-212B envisaged that in order to ensure speedy trial of cases of persons accused of the heinous offences, the Federal Government, or an authority or person authorized by it, in view of their being gruesome, brutal and sensational in character or shocking to public morality, the Federal Government may constitute as many Special Courts as it may consider necessary.
The article further said that notwithstanding anything contained in the Constitution, no Court shall exercise any jurisdiction whatsoever in relation to any proceedings before, or order or sentence passed by a Special.
13th Constitutional Amendment
At midnight on April 2, 1997, all rules and procedures of the parliament were suspended and in the middle of the night, the 13th amendment Bill was rushed through both houses, signed by the president the next day, and notified on April 4. By this amendment, the president was dis-empowered and the prime minister further empowered. The President cannot dissolve the National Assembly, he cannot appoint governors at his discretion but on the advice of the prime minister, the provincial governors cannot dissolve their assemblies, the president, though he remains supreme commander of the Armed forces, no longer has the power to appoint or sack the services chiefs.
Rules dictate that a constitutional amendment is an extraordinary measure involving a great deal of deliberation on the part of the ruling party, consultation with the opposition, and an objective study of public opinion on the subject. Thereafter, according to the rules of procedure governing parliamentary proceedings under the 1973 constitution, a bill (other than a finance bill) upon its introduction in the House stands referred to the relevant standing committee, unless the requirements of Rules 91 and 92 are dispensed with by the House on a motion by the member-in charge. The standing committee is required to present its report within 30 days and, on receipt of this report, copies of the bill as introduced, together with any modifications recommended by the standing committee, must be supplied to each member within seven days. Two clear days then must elapse before the bill can be sent down for a motion under Rule 93.
Ever since Nawaz Sharif assumed power on Feb. 17, he had been apparently not feeling very comfortable with several developments. President Leghari forced him to give PML ticket for the Senate elections to his cousin, Mansour Leghari, who had contested the National Assembly on a PPP ticket and was defeated. The President appointed Hamid Shahid as the Governor of Punjab against the wishes of his brother Shahbaz Sharif, who happened to be the Chief Minister of the province. Gen. Moinuddin Haider was appointed the Governor of Sindh against the wishes of PML and MQM. The president was also reluctant to replace the Governor of Baluchistan, General Imaraullah Khan. At a parliamentary meeting PML MNAs demanded repeal of the 8th amendment in order to get rid of the presidential interference in day-to-day affairs of the government.
The 8th amendment had made more than 40 changes in the constitution. However, Nawaz Sharif opted to remove only those parts of the 8th amendment which were a potential threat to his government but has failed to touch those parts which pose a threat to society, particularly the weaker and disadvantaged sections like women and minorities. There are several constitutional and legal distortions created by the 8th amendment and several black laws, such as the Hudood Ordinances, under its protection which need to be removed. Thousands of innocent women are languishing in jails under the notorious Hudood laws. Some other article which deserve immediate attention and action by the parliament are:
1. Article 51(1) that was amended to establish separate electorate for minorities.
2. Article 51 (2)b that was amended to increase the age-limit for votes from 18 to 21 years.
3. Article 51(4) that abolished the reserved seats for women in the National Assembly.
The 14th Constitutional Amendment
Less than three months after this transgression, on June 30, in the Senate, the rules of procedure were again suspended, the 14th Amendment Bill went through like a shot, passed in less than a day, without one single protest or dissent being recorded. On July 1, the bill was presented to the National Assembly, again rules of procedure were suspended, and the bill was passed immediately, again without a single protest or dissent. It went up to the president, on July 3 he put his signature to the bill, and on July 4 the 14th Amendment Act of 1997 came into force.
This amendment admittedly has the aim of putting an end to lucrative defections, popularly known as lotaism. But who was responsble for defenctions. Lotaism only existed because all our political parties were in the business of buying and selling bodies. However, that was not deemed to be sufficient. The prime minister had to be further empowered, and so he was. A member of a parliamentary party will also be deemed to have defected if he breaches any declared or undeclared party discipline, code of conduct or policies, or if he votes contrary to any direction issued by his parliamentary party, or if he abstains from voting as instructed by his party on any bill. The prosecutor, defense counsel, judge and jury who will decide the member's fate is the head of the party, whose decision is not justifiable in any court of law.