Daily Times

Pakistan has become a
laboratory for constitutional experiments is the very first line of a book titled Constitutional Development in Pakistan by G W Choudhry. This seems relevant and reasonable in 2013 as the constitution of 1973 has had 20 constitutional amendments. Here, it seems pertinent to briefly put together a few lines on historical aspects concerning previous constitutions of Pakistan. In the 20 years it has had three constitutions. Firstly, the Government of India Act 1935, as adopted under the Indian Independence Act 1947, which was known as the’ interim constitution’ of the country and under which it was governed from 1947 to 1956. Secondly, the constitutional of 1956, officially designated the ‘late constitution’, framed as a result of the deliberations of two constituent assemblies over nine years of effort but which remained in operation for only two and a half years. Thirdly, when following a period of martial law and 44 months, constitutional government was restored on June 8, 1958 and a new constitution promulgated by Ayub Khan in accordance with the mandate that he had received from the people in 1960.

The purpose of this article is to demonstrate the chronology of 1973 constitutional amendments in Pakistan. The article will consider all 21 amendments made by several parliaments starting from 1973 to 2013.

Prime Minister Zulfiqar Ali Bhutto put into practice the 1973 constitution, and in the first five years he made seven amendments. He remains the only prime minister who in his tenure amended it more than any other to date. When Nawaz Sharif came to power in the 1990s, he made six attempts but succeeded in introducing only five, as one attempt was withdrawn. Muhammad Khan Junejo was successful in making two amendments out of three. General Ziaul Haq, who has the credit of ‘Islamisation’ of Pakistan, was provided a ‘licence’ by Junejo in the form of the eighth amendment, which can be regarded as a notorious amendment because it enabled General Zia to dissolve the elected parliament at any given time. It appears that the amendment in the constitution of 1973 was the worst one as it opened the gate for military dictators to overthrow parliament, dismiss prime ministers and get the control of the country by imposing martial law.

When Benazir Bhutto became the prime minister in 1988, the Pakistan People’s Party failed to secure an absolutely majority in parliament, and therefore did not do any harm to the constitution of 1973. The National Assembly adopted the 1973 constitution unanimously but the process to introduce amendments in it began soon after. Six amendments were introduced between May 8, 1974 and January 4, 1977, and the seventh on May 16, 1977 in its short tenure.

When Ziaul Haq dismissed Prime Minister Zulfiqar Ali Bhutto, he suspended the constitution and imposed an authoritarian rule. The Supreme Court of Pakistan sanctioned Zia’s martial law on the basis of the doctrine of necessity. The Supreme Court on July 7, 1977 endorsed the action of the chief martial law administrator, followed by the authorisation to the CMLA to inculcate necessary amendments in the constitution.

The general elections of 1985 were non-party. Parliament had to pass the eighth amendment, which was mandatory for its own survival. A review of constitutional amendments revealed that the first amendment in the 1973 constitution was introduced on May 8, 1974, which reviewed 14 articles of the constitution including, 1, 8, 17, 61, 101, 127, 193, 199, 200, 209, 212, 259, 260 and 270, and the First Schedule were amended. Under these amendments, curbs were imposed on political parties, and they were barred from indulging in activities against national interest, besides making it mandatory on them to declare their source of income. It appears that to declare the source of income was sensible.

Under the second amendment on September 21, 1974, changes were made in Articles 106, 209. The changes declared the Ahmadis non-Muslims, and seats were reserved for them in the Assemblies. It is arguable that Articles 106 and 209 were changed to appease the right wing entities to get their support in parliament. It also appears that this amendment has put Pakistan under immense pressure and test. The state of Pakistan has always appeased the right wing political parties as it has no sense of secularism. The foundation of Pakistan was made on religion and in the 1960s it was made clear that religion and the state were not separable. Fundamentalism, in the last 20 years, has increased and intolerance in society is at its peak, which is alarming.

Through another amendment in the constitution on February 18, 1975, Articles 10 and 232 were amended. The executive was given the power to detain and arrest any person involved in activities against national security. The executive was also authorised to impose emergency in the country through a joint session of parliament. The review of constitutional history discloses that various laws pertaining to anti-terrorism were introduced. The purpose of introducing these laws was to arrest and detain politicians, intellectuals, and activists from all over Pakistan. Furthermore, it appears that the power given to the executive was unjustifiable.

Under the fourth constitutional amendment, brought into effect on November 25, 1975, changes were introduced in Articles 8, 10, 17, 19, 51, 54, 106, 199, 271, 272, 273, and the Fourth and First Schedules. Under these amendments, laws pertaining to fundamental rights were diluted and High Courts were barred from allowing bail to political detainees. The Fifth Amendment was on September 5, 1976 in which 16 Articles including 101, 160, 175, 179, 180, 187, 192, 195, 196, 199, 200, 204, 206, 212, 260, 280, and the First Amendment were amended. Due to the Fifth Amendment, the Bhutto government impaired the working of an independent judiciary and the high court was stripped of the power to issue orders on fundamental rights. The Sixth Amendment in the constitution was introduced on January 4, 1977, and considered Articles 179, 195, 246 and 260 for amendment. The Sixth Amendment added further curbs on the independence of the judiciary and the retiring age of the Supreme Court and High Court judges was fixed at 65 and 62 years, respectively.

(To be continued)

The writer is an attorney and a lecturer in Law of International Trade and can be reached at greenlaw123@hotmail.com