home > by publication type > backgrounder > Pakistan’s Constitution
Email
| Author: | Jayshree Bajoria, Staff Writer |
|---|
March 6, 2008
Pakistan’s constitution has been undermined greatly by a circular pattern of military coups interspersed with short-lived civilian rule. Today, Pakistan’s leading political parties are demanding a shift away from presidential power and far greater executive power for the prime minister. Additionally, they demand an independent judiciary and the reinstatement of judges sacked by President Pervez Musharraf in November 2007 under his state of emergency. Demands for such sweeping changes have a long history in Pakistan, which has repeatedly revised or reinvented its government’s charter, often under duress during times of military rule. Not until 1973 would a constitution be written by a democratically elected assembly. Even following that, the document has been continually reshaped by coups and the wishes of powerful members of Pakistan’s political elite.
Experts say some of Pakistan’s main constitutional principles and controversies still stem from colonial times. At the time of its independence in August 1947, Pakistan inherited the Government of India Act of 1935 (PDF) as its constitutional model—a framework designed by a colonial power to govern a colony that provided for a strong central government, a bureaucracy dominated executive unanswerable to the legislature, and very limited representation with continuation of feudal domination over politics. Under this act, the head of the state was the governor-general and legislative functions were performed by the constituent assembly, which was tasked with enacting a new constitution. The governor-general had the power to appoint or dismiss ministers at his discretion as well as assume emergency power.
In 1969, the 1962 constitution was suspended, martial law was declared, and General Yahya Khan took over. After the secession of East Pakistan to form the new state of Bangladesh, a new constitution was brought in 1973.
The 1973 Constitution was the first constitution to be framed by elected representatives in Pakistan. It provided for fundamental rights and provisions to accommodate Pakistan’s status as an Islamic state.
“The doctrinally inconsistent, judicially inappropriate and politically timid responses fashioned by the courts ultimately undermined constitutional governance.”
–Tayyab Mahmud, legal history expert
The 1973 constitution created a parliamentary form of democracy in which the executive power is concentrated in the office of the prime minister. It established the Pakistani president as the formal head of state, bound to act on the advice of the prime minister. The parliament consists of two houses—the national assembly and the senate. The Constitution also provides for four provincial governments and the distribution of legislative power between the federation and the provinces. Moeen Cheema, assistant professor of law and policy at Lahore University of Management Sciences, says that though the constitution provided for it, provincial autonomy was never really implemented by the 1973 constitution. He holds all military and civilian governments guilty on this charge.
The new constitution included an article (6) which stated anyone who now abrogated or attempted or conspired to abrogate or subvert the constitution shall be “guilty of high treason.” It was an attempt to guard against the takeover of the state by future military rulers. This did not stop army chief General Zia ul-Haq from staging a coup, proclaiming martial law in 1977, holding the constitution in abeyance, and putting in its place a Provisional Constitutional Order (PCO). The PCO not only gave the military regime the right to rule but also the right to amend the constitution at will. The regime used this to fashion a new constitutional order for the post-martial law period. In 1985, the 1973 constitution was revived but an eighth amendment was introduced into the constitution that changed its basic structure and some of its essential features. It shifted the executive power from the office of the prime minister to that of the president and under article 58(2)(b) he was also given the right to dissolve the national assembly at his discretion. Experts say the amendment diminished provincial autonomy and created a weak legislature and a docile judiciary.
Article 58(2)(b) was used in the 1990s by the president to dismiss the elected governments of Prime Ministers Benazir Bhutto and Nawaz Sharif on charges of corruption. Sharif, when he came to power a second time in 1997, abolished the article and instead gave the prime minister the power to dissolve the national assembly. When Army Chief General Pervez Musharraf deposed him in a coup in 1999, yet another phase of constitutional amendments began.
Experts say there is a clear pattern to the military coups and the classic maneuvering that follows to give these coups legitimacy and strengthen the powers of the military rulers. Tracing it from the first military takeover to the most recent one (in 1999 by Musharraf), Cheema says the army chiefs take six important steps. They co-opt the bureaucracy; use accountability against politicians; entrench the army in political and civil affairs; create a new breed of politicians subservient to them under the guise of local government reform; hold elections to create some sort of democratic legitimacy; and finally move to co-opt the judiciary.
Ali Khan, law professor at Washburn University of Law in Kansas, says the military rulers give themselves immunity through the constitutional amendments so that they can’t be tried for proclaiming emergency or for any of their other actions. “They also say these amendments can’t be challenged in a court of law,” he says.
As this Backgrounder points out, Pakistan’s courts and judges are cast as protectors of the constitution in a separation-of-powers system. In many circumstances, however, they have found it expedient or necessary to accommodate constitutional changes or unconstitutional maneuvers by Pakistan’s leaders. They have done so either because they thought this was essential to their own survival or that of the state.
Legal history expert Tayyab Mahmud writes in Utah Law Review that while the successive constitutional crises that confronted the Pakistani courts were not of their own making, “the doctrinally inconsistent, judicially inappropriate and politically timid responses fashioned by the courts ultimately undermined constitutional governance.” The refusal of the Chief Justice and twelve other Supreme Court judges to sign Musharraf’s decision to suspend the constitution and rule by decree in November 2007, for the first time, brought the judiciary and the executive in direct confrontation with each other.
Musharraf’s 1999 coup, declaration of emergency, and creation of a PCO were also validated by the Supreme Court on the basis of the doctrine of state necessity. The PCO barred any court from making any order against the Chief Executive (Musharraf) or calling into question the emergency. The Supreme Court gave Musharraf the authority to amend the constitution and three years to hold general elections. In 2002, Musharraf engineered a controversial referendum which elected him as president for five years. The referendum also put in place a legal framework order which, through article 58(2)(b), restored power in the president to dissolve the national assembly at his discretion.
Musharraf was reelected in October 2007 in another controversial election. The following month, he declared another state of emergency, suspended the constitution (which had been amended through the legal framework order), and brought in another PCO. This time the PCO targeted the judiciary and the media.
“The military is Pakistan’s principal human rights abuser, yet Musharraf has changed the law so that it can play judge, jury, and executioner.”
–Ali Dayan Hasan, Human Rights Watch
As per the constitutional provision, a presidential ordinance in Pakistan can only be effective for four months unless it is approved by parliament or is reissued. Human rights activist I.A. Rehman writes “the extra-constitutional regimes have developed a tradition of exempting ordinances issued while the constitution is in abeyance.” Therefore, he says, the ordinances issued by General Musharraf between October 1999 and November 2002 are not subject to the lapse rule even though they never received the parliament’s approval. These include the two ordinances that amended the basic media laws barring the use of any material which defames or brings into ridicule the Head of State, or members of the armed forces, or executive, legislative or judicial organs of the state. “A more draconian curb on the freedom of expression cannot be imagined,” writes Rehman.
Under an amendment to the 1952 Army Act, the military can now try civilians for a wide range of offenses previously under the country’s judiciary. “The military is Pakistan’s principal human rights abuser, yet Musharraf has changed the law so that it can play judge, jury, and executioner,” says Ali Dayan Hasan, a South Asia researcher at Human Rights Watch. Another decree has ended the independence of the Pakistani Bar Association. Hasan sharply criticizes the move as politically motivated: “This is a despicable attempt to end political opposition by threatening the livelihoods of government critics.”
Weigh in on this issue by emailing CFR.org.
In Restoring the Balance: A Middle East Strategy for the Next President, experts from the Council on Foreign Relations and the Saban Center at the Brookings Institution propose a new, nonpartisan Middle East strategy drawing on the lessons of past failures to address both the short-term and long-term challenges to U.S. interests.
This report lays out a thoughtful agenda for U.S. policy toward the Democratic Republic of Congo, arguing that what happens there should matter to the United States--for humanitarian reasons as well as economic and strategic ones.
In this report, CFR Senior Fellow Michael A. Levi analyzes the potential use of deterrence in preventing terrorist groups from acquiring nuclear weapons and recommends a new approach to U.S. declaratory policy, as well as ways to improve U.S. capabilities to determine the sources of terrorist attacks.
Complete list of Council Special Reports.
This report argues that the United States must lead with domestic action on climate change and proposes a U.S. negotiating strategy for a global UN climate agreement that includes commitments from all major economies, while also promoting a less formal Partnership for Climate Cooperation that would focus the world's largest emitters on implementing aggressive emissions reductions.
This Task Force report examines changes in Latin America and in U.S. influence there, while taking account of the region's enduring importance to the United States. The Task Force offers an agenda for U.S. policy toward Latin America and identifies four critical areas that should provide the basis of a new U.S. approach.
About Independent Task Forces at CFR.
A selection of Foreign Affairs pieces by and about the preeminent political scientist of the last half century.
To order Task Force reports, Council Special Reports, and Critical Policy Choices, please call, fax, or order online from our distributor, the Brookings Institution Press: phone +1.800.537.5487, fax +1.410.516.6998.
For information on other reports that are not for sale, or for general publications information, please call +1-212-434-9516 or email publications@cfr.org.
To request permission to reuse Council materials, please email publications@cfr.org or fax +1.212.434.9859.
Please include the complete information of the requested work—author, title, sections/pages to be copied or reprinted, and number of copies to be made—along with a brief description of where and how you would like to reuse the work.
You may also request permission for Council material through Copyright Clearance Center. For more information, please click on the link below.
Copyright 2009 by the Council on Foreign Relations. All Rights Reserved.
Global Economy 