April 2008

Vol 7 - No. 10
























Legal | April 2008



Preserving the Constitution



While being formally inducted into the National Assembly, each member swears to "preserve, protect and defend the Constitution of the Islamic Republic of Pakistan". Obedience to the constitution is an inviolable obligation of every citizen of Pakistan under Article 5 of our fundamental law. But all the constitutionally mandated representatives of parliament, the executive and the judiciary are endowed with a higher obligation. They are obligated not just to obey the constitution but also to preserve and defend this hallowed contract between the citizens and the state -- a responsibility that they swear to uphold while assuming their duties and functions.


The National Assembly-elect is meeting amid a distressing phase in our national history during which the constitution was seriously bungled. Thus when members take an oath to "preserve, protect and defend the constitution" this time around, they will not merely be chanting in a ritualistic ceremony, but reciting the foremost challenge that confronts our parliament and our nation. As a repository of the nation’s sovereignty and being the legislative branch of the government, it falls upon the parliament to preserve our constitution in its legally valid form. Let us first get out of the way what is not important about the oath: the physical form and content of the constitution being published for the members to place their hands on during the oath-taking ceremony.


The idea that by swearing oath over a version of the constitution that includes the post-November 3 amendments, such amendments will magically become an integral part of the fundamental law is, to put it mildly, preposterous. What if "Alice in Wonderland" was mistakenly printed and appended within the bind of the constitution distributed in the parliament? Would the members then be duty-bound to preserve and protect the fable as part of our constitution? Placing the hand over a book during the oath taking ceremony is symbolic. What matters is the content of the oath. And the oath under Article 65 of the constitution requires members to preserve, protect and defend the Constitution of Pakistan. And there is only one Constitution of Pakistan, the content of which is objectively verifiable as the constitution itself provides a mechanism to do so.


In striking a balance between continuity and change, the constitution must at all times be reflective of and backed by overwhelming national consensus on how the state must be run. Thus Article 239 of the constitution requires a two-third parliamentary majority to establish that a pre-existing consensus has been extinguished and a new consensus has evolved. This is the only legal and valid mechanism to amend the constitution. At the risk of sounding pedantic, it must be restated clearly that there is no legitimate authority in the state, except that which is derived from the constitution. It is the constitution that makes parliament the sovereign representative of the citizens and vests in it the power to even amend the constitution. The same constitution endows the judicature with the right and responsibility to interpret the constitution. This is Constitutional Law 101_


With this backdrop let us turn to our present predicament. We have a retired general as a president who slapped an unconstitutional emergency (plus) on the country, subverted the constitution and dismissed constitutionally appointed judges (in violation of the mechanism prescribed by the constitution to fire judges under Article 209). The source of his authority was the barrel of his gun. And to give the general his due, he made a candid confession on TV that what he did was unconstitutional. He then reappointed those judges who were willing to play along. These judges, who swore upon the general’s edicts (the Proclamation of Emergency and the Provisional Constitutional Order) that subverted the constitution, then stated that he was justified in holding the constitution in "abeyance" (which they emphasized was different from "abrogation"!).


Having derived their judicial authority from the Oath of Office (Judges) Office, 2007, passed by the general, they, in turn, purported to validate his self-assumed executive and legislative powers and also provisionally blessed him with the authority to rewrite the constitution at will in the Tika Iqbal Khan case, if it "fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President…" So the general in exercise of his legislative authority to amend the constitution, granted by a court that derived its judicial authority from the general, amended the constitution through two constitutional amendment orders to give all his unconstitutional actions constitutional protection. Really!


And now Sharifuddin Pirzada and AG Malik Qayyum insist that the constitution has been validly amended. Why? Because the general has himself added a new clause 270AAA to the constitution that says that nothing done by the general between November 3 and December 14 (when the second Constitutional Amendment Order was passed) shall be considered unconstitutional or challenged in any court. They unashamedly proclaim that the retired general has single-handedly yet successfully changed the constitution. Even if he did so by means of coercion while admitting that his actions were illegal, the judges he appointed said that his illegitimate actions were valid and legal and so that is that. And here is the punchline: the time of constitutional deviation is now over and if legitimately elected parliamentarians wish to "preserve" the constitution in its pre-Novmber 3 form, the onus has now shifted onto them and they will need to conjure up a two-thirds majority pursuant to Article 239. For that is the only valid way to amend the constitution!


The problems with the fiction being propagated by the general’s legal panderers are many. First, it does not conform to the explicit text of the constitution. In emphasizing that the incoming parliament needs a two-thirds majority to undo the general’s (un)constitutional amendments, they acknowledge that there is only one legitimate way to amend the constitution i.e. by a two-thirds parliamentary majority. Second, the judiciary has no authority to validate extra-constitutional actions. The logic used by the Supreme Court in cases where it chose to become an apologist for a dictator is oxymoronic, to say the least. For example, in justifying the first coup of the general, the Supreme Court held in the Zafar Ali Shah case that he "validly assumed power by means of an extra-constitutional step…"


What gives a handful of lawyers wearing black robes the authority to impress upon a nation that their government could not be run in accordance with their constitution and hence a usurper subverted the constitution and usurped constitutional authority 'validly’? At a time when the constitution stands suspended, what divine powers does a judge have, who is himself appointed by such a usurper, to determine the validity of the usurper’s actions?


But most importantly, the constitutional and political history of Pakistan informs us that if there is anyone that can validate and affirm a breach of the constitution, it is the constitution itself. General Ziaul Haq suspended the constitution in 1977 and the court 'validated’ his martial law in the Nusrat Bhutto case. Even though he tried to introduce Article 270A into the constitution through his Revival of Constitution Order, 1985 passed on March 2, 1985, the clause only became part of the constitution on November 11, 1985 after the parliament approved the 8th Constitutional Amendment by two-thirds majority.


Likewise, General Musharaf’s first martial law of October 12, 1999 was 'validated’ by the court in the Zafar Ali Shah case (while granting him the power to amend the constitution). But Article 270AA that validated and protected the PCO of 1999 and LFO of 2002 only became part of the constitution after the 17th Constitutional Amendment was passed by the parliament in accordance with Article 239. What then makes the PCO of 2007 and the pearls of wisdom shed by the Dogar Court in the Tika Iqbal case so special that together they can 'validly’ amend the constitution in contravention of its explicit provisions?


The power to amend the constitution belongs to the people of Pakistan and they exercise it through their chosen representatives. Never before has the Constitution of 1973 been permanently amended except by parliament with a two-thirds majority. Even an ordinary agreement can be annulled by a party that is coerced into such agreement. And here we are being consumed by debates on whether the fundamental law of our land can be altered on gunpoint. The new National Assembly must live up to the trust reposed in it by this nation and preserve the Constitution of Pakistan. There are no legal hiccups here. All that is needed is a parliamentary gesture to preserve the constitution in its pre-November 3 form. If it doesn’t shirk this constitutional duty, the deposed judges will automatically stand restored and the mischief of extra-constitutional legality will be put to rest once and for all.


The article first appeared in The News. The writer’s email is: sattar@post.harvard.edu


Previous Columns by Jay Chauhan


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