Constitutional Throes in Pakistan

– Bablu Sharma

After the independence of Pakistan, many constitutional problems had been faced in Pakistan due to the role of the army in the state. The strength of the army was growing in the political system of Pakistan. On October 7, 1958, the president of Pakistan had abrogated the constitution of Pakistan and imposes martial law in the country. This was the first martial law in the history of Pakistan after its independence. Due to the imposition of martial law various central and provincial assemblies were dissolved and the ministers were also dismissed and political activities were also banned in Pakistan. The parliamentary system of governance in Pakistan came to an end because martial law was imposed. Yaub Khan had set up a commission to examine the failure of the parliamentary system of governance in the country. The commission had submitted its report but Yaub Khan was not satisfied with the finding of the commission. The constitution of 1962 was very much different from the recommendation of the commission but Yaub khan believe in the presidential for of the government. The constitution of 1962 was invoked on Mach 01, 1962 and the Martial law came to end and constitutional government was established and Martial law was replaced. Basically. Pakistan was suffering from a constitutional crisis from the year 1958 to 1969.

Yaub Kahn’s Period

The martial law was imposed on the first week of October 1958 as soon as martial law was imposed in Pakistan the spirit of the constitution was violated. There was chaos in the legal institution of Pakistan. To manage such types of chaos in society the law and order were introduced on October 10, 1958. This order aimed to validate and support martial law in Pakistan. The new order was able to restore the power of the high court and Supreme Court. Any citizen can file a writ petition before the High Court or Supreme Court for the enforcement of fundamental rights. The competent was empowered to issue the writ of prohibition, quo warranto, habeas corpus, certiorari, and mandamus. Due to this new order, any military action cannot be questioned in the Court of law.[1] This means that during this period neither constitution of Pakistan nor rule of law was followed.  However, the validity of the order and martial law was challenged before the supreme court of Pakistan. The chief justice of Pakistan upheld martial law as well as order.

Constitution Commission Report

In 1960, the president of Pakistan Yaub Khan constituted a constitution commission report to know the reason for the failure of the parliamentary form of the government. The commission consists of 10 members various experts from the field of administration, civil service legal experts were included. This commission was headed by the chief justice of Pakistan. The yaub khan had given a reason for the constitution of the commission.

“It has been explained by the present President that he, as the Head of Army was on more than one occasion asked to take over by the then Heads of the State and still he desisted and when he did take over in 1958, he promised to restore Government after establishing the conditions in the country and the fact that this Commission was appointed indicates that he is going to carry out that promise.”[2]

The commission had submitted the reports and cited the reason for the failure of parliamentary for of the government in Pakistan. The reasons are as follows:

• There was a lack of proper election as well as defects in the late election
• There was unnecessary interference of the head of the states with ministers and by the central government with the functioning of the government in the provinces
• There was a lack of leadership and undue interference in the administration.

The various recommendation had been given by this commission. According to A.K Brohi, the report was not accepted in the original form and the recommendations were also modified during the cabinets meeting.[3] Further, the president of Pakistan had rejected all the recommendations of the constitution commission. He accepted that only one name of the constitution should be in the presidential form.[4]

The Constitution of 1962

The Constitution commission had submitted its report in, May 1961 but the president of Pakistan was not satisfied with the report of the commission. He had rejected all the recommendations and it was redrafted and promulgated on June 08, 1962. This constitution includes 250 Articles 12 parts and 3 Schedules and the presidential form of the government were recognized.

Feature of the 1962 Constitution

There are various features of the 1962 constitution of Pakistan which are as follows:

• Preamble – the preamble of the constitution of Pakistan begins with the almighty of god alone and that the authority exercisable by the people within the limits prescribed by God is a secret trust.
• Fundamental Rights- the constitution of Pakistan of 1962 recognized the fundamental rights of the citizen but it was not justifiable. Further, the first amendment was passed in 1963 then fundamental rights were justifiable before the court of law.[5]
• President and his power- the constitution of 1962 provide the presidential form of government. The constitution states that the President shall be the head of the executive as well head of the state and also enjoy extensive powers.
• The legislature- the constitution of Pakistan provides that the central legislation of Pakistan consists of one house is known as the national assembly. The president has all the power to dissolve the house of the national assembly. The impeachment of a president is also given in the constitution of Pakistan[6]
•  Federal judiciary – the constitution of Pakistan provides for a supreme court of Pakistan. The supreme court of Pakistan consists of the chief justice of Pakistan with many judges as may be determined by the law.[7]
• Supreme Judicial Council- the concept of the supreme judicial council was also introduced in the constitution of Pakistan. It means that if the judge of the high court of the Supreme Court is unable to perform his duties, the president was empowered to refer the matter to the supreme judicial council for inquiry.[8]
• Islamic provision- some Islamic provisions were also introduced in the constitution of Pakistan.

Constitutional Crisis in Pakistan

Nowadays Pakistan is facing with a constitutional crisis. Recently, a no-confidence motion is introduced in the national assembly of Pakistan. But the deputy speaker of the national assembly rejected the no-confidence motion against the present ruling government of Imran Khan on the ground that it was part of a foreign conspiracy. The opposition leader challenges the decision of the deputy speaker of the national assembly before the Supreme Court. The national assembly has been dissolved by the president of Pakistan on the advice of the prime minister of Pakistan. The president has all the right to dissolve the national assembly by using Article 58 of the Pakistan constitution.[9] The decision of the Supreme Court is still pending. The prime minister of Pakistan will remain the charge of prime minister until the interim government is formed. One of the journalists has cited the line of constitutional crisis in Pakistan. She observed that “What is dangerous is that the government itself, which is tasked to protect and implement the constitution and law, is comfortable violating the constitution to stay in power”[10].

The current position of Pakistan creates a legal crisis in the country. This crisis may affect the development of the country as well as the economy of the country. Pakistan’s economy is already weakened due to various reasons ultimately citizens of Pakistan shall suffer.

Conclusion

After the independence of Pakistan, the founding father of Pakistan was ready to prepare the draft of the constitution. Pakistan was facing a constitutional crisis till 1969 due to the undue involvement of the army. In 1962 the constitution of Pakistan was framed but there were so many challenges before the government. Presently Pakistan is facing a constitutional crisis because the government of Pakistan is not functioning in the spirit of the constitution even. The vote of a no-confidence motion against the prime minister is rejected by the deputy speaker of the national assembly. The leader of the opposition has challenged the decision of the deputy speaker of the national assembly. The argument on the constitutional crisis is being heard by the supreme court of Pakistan but the judgment is still pending before the supreme court of Pakistan.

The author has completed his LLM from Central University of Punjab, Bathinda and did his B.Sc LLB from Central University of South Bihar

Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.

Readers may submit his/her blog for publication. Click Here or Scan the QR Code to submit your Manuscript.

[1] President’s Order (Post-Proclamation), op.cit.

[2] Report of the Constitution Commission, 31

[3] Interview with A. K. Brohi, Supreme Court Advocate, Daily Dawn, February 22, 1985

[4] Interview with A. K. Brohi, Supreme Court Advocate, Daily Dawn, February 22, 1985

[5] Government of Pakistan, The Constitution of the Islamic Republic of Pakistan 1962, (Karachi: Ministry of Law and Parliamentary Affairs, 1968), Articles 1 to 12, Part-II

[6] Government of Pakistan, The Constitution of the Islamic Republic of Pakistan 1962, op.cit., Articles 23

[7] Government of Pakistan, The Constitution of the Islamic Republic of Pakistan 1962, op.cit., Articles 49

[8] Government of Pakistan, The Constitution of the Islamic Republic of Pakistan 1962, op.cit., Articles 128

[9] Article 58 Constitution of Pakistan

[10] https://www.aljazeera.com/news/2022/4/3/pakistan-political-crisis-live-news-no-confidence-vote-blocked