Daily Times

Constitution is a back bone of a parliamentary or presidential form of government. It also carries equal weight in modern system of kingship. A constitution always remains open to improvement as situation arises or as circumstances require. A governing system working in accordance with the constitutional provisions creates harmony and makes a nation and a country strong internally and externally. A situation is reversed in adverse scenario.

The constitutional history of Pakistan begins with All India Act, 1935 which was adopted under Section 8 of Indian Independence Act 1947 with some amendments as interim constitution of the country. Pakistan enacted its first constitution in 1956. The country took long time to have its first original constitution which provided for the Parliamentary form of government. It was mainly due to death of founders of our country and great and first line leadership in early years of the country. This leadership blessed us with independence in 1947. The founder of the country, Quaid-e-Azam Muhammad Ali Jinnah died after one year of the independence on 11th September 1948. The first prime minister of Pakistan Nawabzada Liaqat Ali Khan was shot dead on 16th October, 1951. The sudden and untimely death of these two great leaders brought ship of the country into shallow waters. It is also main cause of political instability of Pakistan in the current days.

In October, 1958, first Martial law was imposed in Pakistan. After four years another constitution was enacted in 1962. It supported the Presidential form of government. Soon crisis began and President, Field Marshal, Muhammad Ayub Khan had to leave the power. He was succeeded by Martial Law Administrator, General Muhammad Yahya Khan. The general elections were held under Legal Framework Order (LFO) in 1970. Twenty-four parties prepared to participate in the general elections for 300 seats of National Assembly. Pakistan Peoples Party won 81 seats and Awami League got 160 seats. Both the largest parties did not win seat in both wings of the country. Some are of the opinion that this divide indicated thinking of East Pakistan about their objective. East Pakistan became Bangladesh in 1971.

Pakistan People’s Party formed a government in rest of Pakistan in December, 1971. The national assembly adopted interim constitution on 17th April, 1972. It provided a presidential form of government. On 14th august, 1973, current constitution replaced the interim constitution. The new constitution provided for the parliamentary form of government having bicameral legislature. The website of the Senate of Pakistan displays twenty amendments, so far made, of the constitution of Pakistan.

The Parliament soon deemed fit to introduce amendments to the constitution within one year of its enforcement. First amendment was enacted in May, 1974. From 1974 to 1977, seven amendments, three amendments from 1985 to 1987, six amendments from 1989-1999 and six amendments from 2003 to 2016 took place.

Article 70 (3) of the constitution provides “If a Bill transmitted to a House under clause (1) is rejected or is not passed within ninety days of its laying in the House or a Bill sent to a House under clause (2) with amendments is not passed by that House with such amendments, the Bill, at the request of the House in which it originated, shall be considered in a joint sitting and if passed by the votes of the majority of the members present and voting in the joint sitting it shall be presented to the President for assent”. Article 239(5) provides, “the President shall assent to the Bill within seven days of the presentation of the Bill to him, and if he fails to do so he shall be deemed to have been assented there to at the expiration of that period”.

Promulgation of laws is not enough. Non-implementation or partial implementation of laws reduces their respect, obedience and dignity. Justice in toto also requires attention

The above articles of the constitution may be interpreted that the President has been made part of the process of legislation. His assent is necessary for finality of the bill, to be enforced as an Act, approved by houses of the parliament. If he does not even assent the bill within the specified period, the bill shall be deemed to have been assented. The constitution contains same situation in the case of Governor in the provincial legislation.

Though, in parliamentary form of government, the office of President is ceremonial and for the fulfilment of constitutional requirements. Here point to be pondered over is whether powers of the President merit re-consideration keeping prestige of the office of the President in view.

Article 70 provides that bill presented in a joint sitting if passed by the votes of the majority of the members present and voting in the joint sitting, it shall be presented to the President for assent. The total strength of both the houses, National Assembly and the senate, are four hundred forty-six members. Each house passes a bill with majority of three-fourth, but, when a bill is presented in the joint sitting, under clause three of the article, then votes of the majority of the members present and voting in the joint sitting shall be enough to pass the bill. Probably the constitution is deficient of minimum required quorum of jointing sitting required for passing the bill.

Article 55(1) provides “subject to the constitution, all decisions Voting in of the National Assembly shall be taken by majority assembly of the members present and voting, but the person quorum, presiding shall not vote except in the case of equality of votes”. Clause (2) of the same article provides quorum of national assembly shall be one-fourth of the total membership of the Assembly.

Three hundred forty-two are total members of the National Assembly. Thus, one-fourth quorum shall be about eighty-six members. Its majority shall be forty-four. Sometimes, the House lacks minimum quorum but bill gets approval. The decision will reflect approval of majority of three hundred forty-two members. Minimum quorum required for holding session of the national assembly and minimum percentage of vote for approval of a decision are two different matters. The majority of three-fourth for passing a bill may be reconsidered as it may increase sense of responsibility.

There is proper procedure of passing a bill. It includes First, Second and Third Readings. If necessary a draft of bill is referred to the concerned committee. This procedure has been introduced for thorough consideration and discussion before making a bill an Act. If the bill seems against public interest, it may be dropped at proper stage. It has been observed that due procedure of constitution/law does not take place. Laws passed in haste may neither yield due fruit to the country nor command respect in the masses.

Democracy is a system of government. It includes government of the people, by the people and for the people. It also includes the protection of the human rights, rule of law and working of different organs of a state in accordance with constitutional powers assigned to each one. The head of a government is elected by a simple majority. This majority comes under discussion when differences exist between federating units and federal government and among the federating units, democracy based on ethnicity and political process and projection of government and system working on the basis of personal or party projection instead of promoting national interest and creating national unity.

The eighteenth amendment is landmark amendment in the constitutional history of Pakistan. It devolved the powers to the provinces and abolished Concurrent List. The amendment still requires to be implemented in letter and spirit. Statements are published in media that some vested interests want to either undo it or create hurdles in its proper implementation etc. There is row between federal government and the provincial governments on the subjects of education and health. It only costs financial and administrative resources etc of the country. Duplicity creates uncertainty which affects performance and it leaves impact on service delivery.

Abuse of power is often reported in various offices of Pakistan. The constitutional principle of “Checks and Balances” is introduced in a constitution to keep check on abuse of powers. It requires cooperation of different branches of a state and helps them to confine to their respective jurisdiction and powers. In a country where abuse of power is often reported this principle may restrict it for smooth functioning of the constitutional structure.

It is not enough to pass more and more laws but its implementation matters a lot. Non-implementation or partial implementation or discrimination in it reduces the respect, obedience and dignity of a law. Moreover, justice in toto also requires attention. Legislation must be in the public interest. It must not be based on personal thinking or interest. Legislation requires thorough assessment of its necessity, examination, discussion and due consideration etc. Moreover, amendment in the constitution may be in the public interest instead of vested interests.

The writer is an author and has a doctorate in Political Science

Published in Daily Times, February 23^rd 2018.