Sy Syed S. Hussain
New York
Constitution making and its amendment are an integral part of any democratic culture. In Pakistan, however, this aspect has assumed an altogether different purpose. Constitution making or amending has resulted more often in cessation of democratic process, rather than its progress.
We are currently witnessing more of the same these days in Pakistan. The government and the opposition are locked in a battle concerning the amendments made in the constitution by President Parvez Musharraf. This struggle has serious consequences, potential enough to derail the nascent democratic system in the country.
A look at the constitutional history of Pakistan reveals two things: First, the constitution making is still an ongoing process, as after more than half a century Pakistan is still looking for the right constitutional setup. Second, all previous attempts have largely been futile, neither serving the people that the constitution intended to serve, nor protecting the leaders that it was designed to protect.
The First Constituent Assembly of Pakistan, entrusted with the task of drafting a constitution, started its work on August 1, 1947. It took nearly two years (March 12, 1949) to produce the Objective Resolution. The First Draft constitution produced on September 28, 1950 was not approved. The Second Draft produced in December 1952 also failed to get approval. The Third Draft was produced in 1953, but before it could be approved, the Constituent Assembly itself was dissolved by the then governor general Ghulam Mohammad.
The Second Constituent Assembly elected in 1953 gave the country its first constitution when the Constitution of 1956 was passed on March 23, 1956. Pakistan finally had a constitution. However, it was not to remain for long. On October 7, 1958, President Iskander Mirza abrogated the constitution. In the meanwhile army chief, Ayub Khan, deposed Iskander Mirza on October 27, 1958, and declared himself the Chief Martial Law Administrator of Pakistan.
In 1962 Ayub Khan gave Pakistan its Second Constitution. As would be expected from a military dictator, the constitution reflected his own personality. Many called this legislation ‘constitutional straitjacket’ for the people of Pakistan. It also brought the concept of indirect elections by introducing Basic Democracy. Despite the safeguards he built for himself, Ayub Khan, as a result of massive public agitations, was forced to hand over power on March 25, 1969 to the army chief Yayha Khan, who promptly abrogated the 1962 constitution.
In December 1971, in the aftermath of the dismemberment of Pakistan, it was the turn of General Yayha Khan to be forced out of office, surprisingly, by a civilian, Zulfiqar Ali Bhutto.
The process of framing a constitution started all over again. The Third Constitution of the country was approved on April 10, 1973. As Mr. Bhutto wanted to leave no room for any misadventure on the part of the armed forces, this constitution made the Prime Minister overwhelmingly powerful.
But even that could not save him. He was removed on July 5, 1977 by his hand-picked army chief General Zia ul Haq. The general decided to deviate from the hitherto followed practice of abrogating the constitution, and placed the 1973 constitution in ‘abeyance’.
Before reviving the constitution in 1985 Zia got it extensively amended. The amendments were basically meant to dilute the powers of the Prime Minister and strengthen those of the President. He also got himself elected as President through a referendum held on December 19, 1984. All the amendments were incorporated in the 1973 Constitution as Eighth Amendment on March 20, 1985, by the partyless Majils-e-Shoora (assembly).
The Eighth Amendment saw the sacking of four Prime Ministers in quick succession: Junejo (May 29, 1988), Benazir Bhutto (August 6, 1990), Nawaz Sharif (April 18, 1993) and Benazir Bhutto again (November 5, 1996). When Nawaz Sharif was elected for the second time in 1997, with more than a two-third majority, he struck down the Eighth Amendment and took away the discretionary powers of the President to dismiss the Prime Minister.
True enough, this time around the President could not and did not oust him. This was left for the incumbent army chief to do. General Parvez Musharraf sacked Nawaz Sharif on October 12, 1999.
The Pakistani politics had come around the whole circle. Taking a lesson from history Parvez Musharraf decided not to abrogate the constitution, and placed it in abeyance. At the same time not taking lesson from history, he decided to amend the constitution. The powers of the Prime Minister were clipped again and the President given additional powers. The Armed Forces got a permanent role in the civil affairs through the establishment of the National Security Council. President Musharraf could also be both the President and the Chief of Army Staff, which presently he is.
All this in a package called the Legal Framework Order, put into operation by Musharraf. Interestingly, unlike Zia’s Eighth Amendment, Musharraf did not bother to place it before the elected assembly and cajole them to pass it. Using a Supreme Court Order to justify it, he just went ahead and incorporated the LFO in the constitution. Elections of October 2002 were held under the aegis of LFO.
The political parties comprising the government of Prime Minister Mir Zaffarullah Jamali have accepted these amendments, as part of the deal of forming the government. The opposition has not. They want, at the very least, the amendments to be brought to the assembly, debated and passed or rejected. Also they want the President to vacate the post of Chief of Army Staff. President Musharraf is not inclined to oblige, and the controversy continues.
What does all this mean for the long term politics of Pakistan? If history is any guide, this may not be the last time the country finds itself in such a situation. Starting from 1956 to 1962 to 1973 constitutions, amendments and counter amendments, the right system is yet to be found. The question is: whether the fault lies in the written words, or actions of those who are the custodians of this document?. A system is as good as the people who run it.
It is the democratic culture and traditions which make the constitution a viable, workable and enduring document. All the safeguards would not be able to save the constitution or its misuse if there was no public sanctity attached to it. And the only way public sanctity is achieved is when there is continuity of democratic process and good governance.
(Syed S. Hussain is a political analyst. He has post-graduate degrees in Political Science, International Relations, History and Law. E-mail: Sharafain@aol.com)