Tag Archives: Pakistan 1973 Constitution

Happy Birthday Fatehyab Ali Khan

Speaking in 1962

Speaking in 1962

Fatehyab Ali Khan, President of the Pakistan Mazdoor Kissan Party and a legendary figure in the public and national life of Pakistan, passed away on 26 September 2010. A visionary in politics, his relentless struggle for democracy, fundamental freedoms, justice in society and the rule of law forms a glowing chapter in the history of our country. His support for the cause of the oppressed and under-privileged will long be remembered. Today, i.e. 19 May, is Fatehyab’s Birthday.

Fatehyab’s family migrated from Hyderabad Deccan to Pakistan after the Partition and settled in Shikarpur and Karachi. His bold stand against injustices in the local education system made him prominent at a very early age. Gifted with unusual organizing skills, persuasiveness and charm, he joined the National Students Federation and soon assumed leadership roles in the student community. He was elected as Vice President of Islamia College Students’ Union (at that time the president of the union used to be an official), President of Karachi University Students’ Union and Chairman of the Inter-Collegiate Body. He was a brilliant debater in both Urdu and English.

During the students’ movement against Ayub Khan’s martial law, when political parties were quiet spectators, Fatehyab shot to fame as a national figure and the leader of the movement. He was tried as Accused Number One and convicted by a military court in 1961. After he had served his sentence in Bahawalpur Central Jail, along with other activists, he was twice externed from all parts of the country, except Quetta. He was denied a passport to study abroad by the regime and ultimately took up law as his profession in Karachi.

Fatehyab was in the forefront of all movements against dictatorship in the country. His greatest contribution to politics came during the Movement for Restoration of Democracy (MRD). He was a fearless fighter against Ziaul Haq’s dictatorship. The Mazdoor Kissan Party, of which he was president, was a member of the MRD alliance. On 12 August 1983, he courted arrest in Empress Market Karachi as part of MRD’s civil disobedience campaign. He worked tirelessly to organize and spread the movement and to develop a consensus for the alliance to work from a common platform in the future, which was not to be. The decade of the 1980s was a period of internments, externments, and numerous prison terms for Fatehyab. He was the only signatory of the MRD declaration who was tried and convicted by a military court. However, he never yielded to pressure and never compromised on his political principles.

Fatehyab served his prison terms in the 1980s in Karachi and Sukkur jails but whenever he found respite, he turned his attention to The Pakistan Institute of International Affairs, of which he had become a member in 1972. In 1980, Ziaul Haq had taken over the Institute through a presidential ordinance, turning it virtually into a government department. Between prison terms, he led a determined and courageous legal campaign to get the Institute restored to its original independent and non-official status. After many setbacks, his persistence triumphed and the presidential ordinance was declared ultra vires of the Constitution by the Supreme Court of Pakistan in 1993.

In 1995, Fatehyab was elected as Chairman of the Institute’s Council, a position he held until 2009. As Chairman, he jealously guarded the independent character of the Institute, countering all pressure with the strength of his own personality. Free from traditional prejudices, Fatehyab was a great supporter of the rights of the marginalized, including the women’s movement, and stood by every initiative for women’s empowerment.

He was a prolific writer and has left behind a rich archive consisting of numerous constitutional petitions filed by him against martial law, articles on constitutional and international issues, political analyses and statements. These documents reflect not only his own commitment and contribution but also the dilemmas of the times in which he lived. These historic documents in the struggle for democracy will be exposed in a forthcoming book by his wife Dr Masuma Hasan.

Supreme Court Approves Swiss Letter

Today, Wednesday, 10 October 2012, the Supreme Court has approved the letter to be written to the Swiss authorities to open the corruption case against the President Asif Ali Zardari.

The irony, of course, is that Zardari looks set to win the election again! So the writing of the letter is something which is likely to take second place to that fact.

But, despite the emollient effect of the letter in the short-run, it is equally likely that the standoff between the government and the judiciary, will not disappear anytime soon.

A five-member bench of the Supreme Court, headed by Asif Saeed Khosa J, approved the draft of the letter in the implementation of the NRO case.

The vetted draft highlights that the Swiss authorities should consider the letter – sent by former attorney general Malik Qayyum – null and void and that it should be assumed that the letter had not been written and sent at all.

Whilst the draft set that all cases be reopened, it was emphasised that – subject to Pakistan’s 1973 Constitution – President Zardari had the right to defend himself in legal proceedings.

The Court noted that the draft document was satisfactory and that it was the first time that a genuine attempt had been made to write the letter.

The case was adjourned until 14 Nov 2012.

Apex court tells PM “après moi, le deluge” won’t work

The Contempt of Court Ordinance 2003 is in the news a lot. But the novelty is that the parties to the proceedings, about which we hear so much in the media, are the prime minister and the judiciary. Whoever is wrong or right, one thing is for certain: the law is sacrosanct and ought to be respected. But as Pakistanis, during our last six-and-a-half decades of “freedom”, we have become accustomed to seeing the overriding principles of democracy be compromised for the sake of a few rich and corrupt people.

In the present political climate, on the one hand, there is a feeling in the country that military rule will be re-established soon. Equally, on the other hand, loyalists of the PPP predict that they will win bigger in the next elections. I’d like to disagree with the idea that the imposition of martial law is inevitable. But after a detailed conversation with my old comrade Mr Sibghat Kadri Q.C., I reanalysed recent violent events (such as the killings of so many advocates in Karachi). Then I reread some recent supreme court judgments and orders: specifically Intra-Court Appeal No. 1 of 2012 (“the appeal”).

The appeal (Jawwad Khwaja J delivering the order of a bench of seven judges) traces its roots to the National Reconciliation Ordinance (NRO) – which was invalidated by the supreme court in December 2009 – and was aimed against the actions of the Prime Minister of Pakistan Mr Yousaf Raza Gillani (“the appellant/contemnor”) who resisted the January 2012 order of the supreme court, directing him to show cause, for not following the writ of the court as set out in the NRO Judgment: Dr. Mobashir Hassan & others v. Federation of Pakistan & others (PLD 2010 SC 265).

This post is concerned with the observations made by the supreme court in the appeal in relation to the transparency of institutions and respect for the rule of law. The clues for the country’s political future, moreover, as set out in the text of the order, are rather interesting and worth examining.

But prior to examining the “political” content of the order, it is worth noting that the supreme court was nothing less than dismissive of the appellant’s counsel Mr Aitzaz Ahsan’s reliance on Imran Ullah v. The Crown (1954 FC 123) and Cornelius J’s observation that the court could not exclude an advocate’s arguments until it was satisfied through a direct question that nothing further could be added to the substance of the case. At paragraph 13 of the order, Jawwad Khwaja J noted that in the Imran Ullah case Cornelius J was dealing with a criminal appeal from the Lahore High Court which had made a final ruling in the matter, whereas the appellant’s matter had yet to be determined. It was also explained to the appellant that, under section 3 of the Ordinance, a person could be named in proceedings for contempt of court if he disobeys or even disregards any order of a court which he is legally bound to obey.

The supreme court was at pains to point out to both the prime minister and his counsel that every effort would be made to afford the appellant/contemnor, Mr Gillani, a “fair hearing” as this was his right under Article 10A of Pakistan’s 1973 Constitution.

Jawwad Khwaja J explained that the case of Justice Hasnat Ahmad Khan v. Federation of Pakistan (PLD 2011 SC 680) had already established that where non-compliance of a court directive is not disputed, the court is, prima facie, justified in the satisfaction that the matter should proceed to trial.

The implementation of the NRO Judgment lies at the crux of the present confrontation between Pakistan’s executive leadership and the judicial authority. In that case, the supreme court ordered the prime minister to request the Swiss authorities to restart proceedings for alleged corruption – involving a sum of $60 million – connected to the present President of Pakistan Mr Asif Ali Zardari.

Following eminent British jurist Professor HLA Hart, the supreme court did not see itself as being bound to “the alternatives of the blind” when interpreting statutes and precedents and thus Jawwad Khwaja J and his brethren rejected any “‘mechanical deduction’ from rules with predetermined meaning.”

In part III of the order, entitled “The Constitutional Imperative”, the supreme court drew comparisons from  various jurisprudence (western and Islamic), literature and Islamic history to conclude that the prime minister was not entitled to any special privileges and at paragraph 19 it was made plain that

Therefore, even though we have no doubt that the appellant is a duly elected Prime Minister of the country and deserves respect, this Court cannot be expected to show any restraint and forbearance on account of his position.

It was also clarified by the court that both Prophet Muhammed (peace be upon him) and the second Caliph Hazrat Umar had warned the people that double standards in the law would lead the nascent Muslim Umma straight to disaster because such behaviour imperiled the objectives of free and fair governance. Pointing out that functionaries of the state such as the prime minister and the president act as fiduciaries of the people of Pakistan, the court also relied on the Persian poet Sheikh Saadi’s verse to make its point – “If the ruler plunders but five eggs, his minions will plunder a thousand roosters.” Very much in his element, Jawwad Khwaja J also noted that under Article 190 of the Constitution “all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court.”

The supreme court emphasized that the nature of the fiduciary relationship coupled with the nature of the oaths of allegiance to the state reflected poorly upon the behaviour of the prime minister. This is where the text of the order, at paragraphs 33 to 34, becomes very interesting and might provide us with clues for the future of Pakistan because the court did make an oblique argument that when civilian authority no longer heeds the ambit of its power and acts in contravention to the duties of its office, then the armed forces must step in (emphasis supplied, perhaps there’s some latent “doctrine of necessity” in what the supreme court said):

33. The Prime Minister’s mandate is circumscribed by Art 90 of the Constitution, which permits him to exercise, in conjunction with various other constitutional functionaries, “the executive authority of the Federation”. This exercise of authority is however, “[s]ubject to the Constitution” as expressly stated in the proviso to Art 90 (1). In the same light, Judges are required to make an oath to the effect that they will discharge their duties “in accordance with the Constitution…and the law”. In fact, this part of the oath is common to the oath of every single functionary for whom the Third Schedule prescribes an oath; one of these oaths which puts the point most clearly requires that such functionary will “uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people.” (Oath of Members of the Armed Forces, Third Schedule, Constitution)

34. It is thus clear that our Constitutional Order is founded on the fundamental instruction that each organ must give effect to and act in accordance with the Constitution. Insofar as an act of any one of the organs of the state travels beyond the limits laid down in the Constitution, the said organ can be said to have strayed from representing “the will of the people of Pakistan.”

Finally, Jawwad Khwaja J cogently ruled that the harmful attitude of “après moi, le déluge” won’t work in an system where the collective interests of Pakistan were at odds with the individual interests of the political elite and their cronies because the former trumped the latter.

We started this discussion with my conversation with Mr Kadri Q.C. and it would be appropriate to end it with the UK’s jurisdiction. That country’s supreme court recently ruled – in a terrorism related case which is known as W (Algeria) (FC) & Ors [2012] UKSC 8 – that despite the risks posed to national security and diplomatic ties of the United Kingodm, the Special Immigration Appeals Commission (which has heard the cases of notorious criminals such as Abu Qatada and Abu Hamza), could make an irreversible and absolute order which precluded the British home secretary from disclosing information (which was used in a terrorist’s trial in the UK) about the source to another country. No doubt in the mother jurisdiction of the common law, the home secretary, one of the four great ministers of the British state, will obey the court’s order.

We think that Jawwad Khwaja J and his brethren will ask Pakistan’s political elite to draw a salutary lesson from our former colonial masters and the legal system which they bestowed upon us.

Watching the funerals of two members of the Mutthida Quami Movement who were murdered in cold blood in Azizabad by terrorists today we could only reflect on what my friend Mr Kadri had argued: the people destabilizing Karachi and Pakistan today want to create circumstances which make it necessary for the armed forces to take control.

The text of Intra-Court Appeal No. 1 of 2012 is available below

The constitutional anomalies

There is a consensus in the country that the army should have no role in politics and that the military high command should be under the control of the highest political leadership. And there are no two opinions about the fact that there should be democracy in the country. However, there are different opinions about the kind of democratic setup that we should have and the manner in which the setup should operate. But there is no difference of opinion that the people should have the right to elect their government in a fair and transparent manner.

A constitution is the fundamental law of the land, and the basic framework for governance. The statutes must conform to the superior norms contained in the constitution. Pakistan’s rulers have not only amended the constitution but have hoodwinked the people by introducing far-reaching changes in the statutes such as the Political Parties Actthe Representation of People’s Act and Qanoon-i-Shahadat, thereby altering the superior law of the constitution itself.

After the departure of Nawaz Sharif and suspension of the Constitution by General Musharraf, political parties in the opposition have been demanding restoration of the constitutional structure existing prior to October 12, 1999. At the same time, they have been describing it as the unanimous Constitution of 1973. These parties should tell the people in clear words which constitution they want to be restored, because before October 12, 1999, it was not the unanimous Constitution of 1973 but Ziaul Haq’s constitution which was in force. Compare the two documents — the unanimously adopted Constitution of 1973 and the constitution as it stood in 1985 — and the extent to which Ziaul Haq had mutilated the 1973 Constitution becomes clearly evident.

After the separation of East Pakistan in 1971, Z.A. Bhutto made a reference to the Supreme Court as to whether the truncated assembly could frame a constitution. The Supreme Court presided over by Justice Hamoodur Rahman, answered in the affirmative. During the chaotic period of 1972, the ruling elite wanted a presidential system but the country’s mature leadership demanded a federal parliamentary system, and all the parliamentary parties unanimously passed the 1973 constitution.

However, when unilateral amendments were made in the Constitution the parliamentary opposition stood against them and kept opposing them until 1977. The PNA declared that the 1977 elections were not transparent and demanded fresh polls. But before the Bhutto government and the PNA could make public the agreement they had reached, Ziaul Haq imposed martial law in the country. The democratic forces, however, continued their struggle through the Movement for the Restoration of Democracy (MRD).

Ziaul Haq virtually changed the basic structure of the unanimously adopted Constitution of 1973 and held non-party elections. The MRD boycotted these elections and declared that the 1985 amendments amounted to promulgating an altogether new constitution, which should be scrapped and the country’s original Constitution of 1973 be restored. But the non-party parliament rubber-stamped the amendments contained in Ziaul Haq’s RCO (Revival of Constitution Order 1985, which was his LFO) The MRD authorised Ms Benazir Bhutto, who was then its convener, to challenge in the Supreme Court the constitutional changes imposed by Ziaul Haq. The Supreme Court gave a three-point judgment in 1988 in Benazir Bhutto’s petition:

1. National and provincial elections are a political process; national and provincial assembly elections should be held on a party basis.

2. When the National Assembly is dissolved, it is a constitutional requirement to hold general elections within 90 days.

3. The federal government is not complete without a prime minister.

Ziaul Haq had not appointed a caretaker prime minister when he dismissed Junejo and the Majlis-i-Shoora in 1988 nor did he hold elections within 90 days. After this judgment of the Supreme Court, Ziaul Haq’s amendments of 1985 became extra-constitutional.

Both the Treasury Benches and the opposition have cleverly suppressed the fact that the oath of office administered recently to the members of the National Assembly and Senate was that of Ziaul Haq’s Constitution and not that of the original Constitution of 1973.

Ziaul Haq sought refuge behind Islamization to introduce gender biased laws which take Pakistan into pre-medieval times. These laws such as enforcement of HuddTazeer and Qanoon-i-Shahadat are highly controversial and discriminatory against women and contravene the substance and spirit of the original constitution of 1973. And these are the laws which our political stalwarts want to protect.

To achieve his political purpose, Ziaul Haq destroyed the principle of one-man one-vote which was, with immense wisdom, enshrined in the procedure laid out for the election of the president. In the 1973 constitution, the electoral college for the president comprised only the National Assembly and the Senate. Ziaul Haq enlarged the electoral college to include members of the provincial assemblies. According to the original 1973 Constitution, the National Assembly elected on the basis of population and the Senate, representing equality of the federating units, elected the president. When Ziaul Haq included members of the provincial assemblies in the electoral college, the indivisibility of the principle of one-man one-vote disappeared. Provincial assembly members now voted first to elect the Senators, and second, voted along with the senators to elect the president.

Ziaul Haq was aware that suspending or keeping in abeyance the constitutional machinery amounted to subversion of the constitution which was a treasonable act punishable by death under Article 6 of the 1973 constitution. By keeping the Constitution in abeyance, he also kept Article 6 in abeyance. He tried to run the country’s affairs with a nominated Majlis-i-Shoora, maintaining that Islam does not provide for political parties and general elections.

When he failed, he took cover behind the referendum through a clause which was introduced in the Constitution by Z.A. Bhutto’s seventh amendment and got himself elected as president for five years. Article 6 was revived only by the elected Majlis-i-Shoora after 8.1/2 years of suspension through the Revival of Constitution Order in 1985. Probably they struck a deal with him.

To sum up, we have three constitutional scenarios:

1. The unanimously adopted constitution of 1973 which includes the amendments introduced by Z.A. Bhutto.

2. Ziaul Haq’s constitution of 1985 with the Junejo-Nawaz Sharif amendments.

3. General Musharraf’s amendments in Ziaul Haq’s constitution.

The attitude of some parliamentary political parties is most surprising. Their parliamentary leaders had signed the unanimous constitution of 1973 and had taken oaths of allegiance to stand by it and protect it, but today the same parties, under the cover of religion, are trying to protect the amendments Ziaul Haq made. This amounts to breaking their oath of allegiance as provided by the constitution of 1973.

Although the general elections were held in October 2002, the Majlis-i-Shoora has not been formally convened because the joint session to be addressed by the president, which is essential, has not been called because of the deadlock on the Legal Framework Order. Success in the current dialogue between the government and opposition on the LFO will be a good augury, although it will in no way be different from the one witnessed in the dialogue held between Ziaul Haq and the members of the National Assembly elected under his Revival of Constitution Order.

The political parties holding the above views should formulate their constitutional aims and incorporate them in their election manifestos. Meanwhile, they should give attention to the people’s general welfare, employment, peace and security, education, housing, health, freedom and provincial autonomy.

They should prepare for the next general elections. The party or parties which win the next elections will have the privilege to propose and enforce a constitution of their choice. There should be no effort on their part to impose their will on the people through back door devices.

The author (1936 – 2010) was the President of the Pakistan Mazdoor Kissan Party and the Chairman of The Pakistan Institute of International Affairs. This article was published as an opinion in the Dawn Newspaper during the author’s lifetime. 

Happy Birthday ZAB

Roti, Kapra aur Makan

Mr Zulfikar Ali Bhutto (ZAB) was perhaps the most popular South Asian leader of his time. Today is his birthday and had he chosen to cheat death by making a deal with General Zia he would have been 83 years of age. Born to a Hindu mother and a Muslim father ZAB married an Iranian Shia.

His vision of a free Pakistan was free from the kind of discrimination, madness and murder which we can witness in the country’s present politics.

He was a very educated man who was able to charm major leaders on the international political stage.

In her book Interview with history the Italian journalist Oriana Fallaci described ZAB as a “man with a thousand faces”. A controversial (owing to her Islamophobia) and renowned journalist, Fallaci admitted being overwhelmed by ZAB’s character and conceded that she was awestruck by his personality. Continue reading

Condition of widows in Pakistan

Dr Masuma Hasan

Being a widow is not a stigma in Pakistan either in religion or under the law. Marriage in Islam, which is the religion followed by the majority of the population, is not considered as sacrosanct. It is viewed as a civil contract between two individuals which can be dissolved. Thus the extreme sanctity attached to marriage in certain other religions does not operate to turn a widow into an outcast or be held responsible for her husband’s death. Traditionally, widows have been encouraged to re-marry and marriage to a widow has always been considered as an honourable act.

According to the latest Census (1998), in a population of 132.4 million, there were 2.7 million widows in the female population of 69 million. The largest number, 442,179, were found in the age bracket 75 years and above, followed by 416,773 in ages 60 to 64 years, and 326,176 between 50 to 54 years. However, Pakistan’s population in 2010 is estimated at over 170 million so the number of     widows has also increased.

Supportive influences

The law of the land, as embodied in the Constitution of 1973, and all previous constitutions, does not discriminate between the rights of women and men. The Constitution guarantees equal rights to both and rules out discrimination on the basis of sex. It empowers the State to make special laws for the protection of women and children and take steps to ensure the full participation of women in all spheres of national life and protect the marriage, the family, the mother and the child.

A widow inherits one-fourth of her husband’s property if she has no children, and one-eighth of his property if she has children. The Government has made humane provisions for the widows of its employees. After the death of a Government employee, his widow receives the family pension until her own death. Widows of lower paid employees also receive a one-time grant for rehabilitation from the official Benevolent Fund. In the private sector, which works for profit, there are no universal rules governing support for widows of deceased employees, but given the culture of philanthropy, some short-term provision is probably made. Continue reading

In memoriam: Fatehyab Ali Khan 1936-2010

Fatehyab Ali Khan speaking in 1962

Fatehyab Ali Khan, Chairman of the Council of the Pakistan Institute of International Affairs from 1995 to 2009, passed away on 26 September 2010. He was a legendary figure in the public and national life of Pakistan. A visionary in politics, his struggle for democracy, fundamental freedoms, justice in society and the rule of law forms a glowing chapter in the history of our country. His support for the cause of the oppressed and under-privileged will long be remembered.

Fatehyab’s family migrated from Hyderabad Deccan to Pakistan after the Partition and settled in Shikarpur and Karachi. His bold stand against injustices in the local education system made him prominent at a very early age. Gifted with unusual organizing skills, persuasiveness and charm, he joined the National Students Federation and soon assumed leadership roles in the student community. He was elected as Vice President of Islamia College Students’ Union (at that time the president used to be an official), President of Karachi University Students’ Union and Chairman of the Inter-Collegiate Body. He was a brilliant debater. Continue reading

Blasphemy and the rule of law: Asia Bibi’s case

History

A barrister by trade Mr Jinnah shared with the profession its militant passion for espousing very precisely advocated arguments and it is not by chance that six decades after his death we can still hear his principles echo. In his first speech to the Constituent Assembly of Pakistan Mr Jinnah provided his people with clues for future action. He described the evils which threatened Pakistan’s interests and suggested remedies which would aid its inhabitants in achieving the secular dream that he had dreamt for the newborn state.

Mr Jinnah

In his first address to the Constituent Assembly Mr Jinnah very famously declared that in Pakistan there could be “no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another”. He also reassured Pakistan’s citizens by his declaration that:

“You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State.”

Clearly Mr Jinnah’s Pakistan was very much about an impartial state which did not treat its minorities poorly and one which did not persecute them.

In his speech Mr Jinnah also reiterated his fears for the future. Pakistan, argued Mr Jinnah, would have to fight diseases such as “bribery, corruption, jobbery, nepotism and black marketing” and in order to win against such evils the post-colonial state would have to grant all its citizens equality and constitutional “human” rights.

Equally, even the later Objectives Resolution (considered to be the touchstone of the “Islamic” influence on Pakistan’s constitution) – which was passed in March 1949 under the aegis of Nawabzada Liaqat Ali Khan – clearly made provisions for the protection of the rights of minorities. Keeping with Mr Jinnah Nawabzada envisaged a nation: Continue reading

Human rights in Pakistan: what’s next?

To say the very least the Pakistani “human rights” lobby is comprehensively impotent in changing the diminishing fortunes of Pakistan’s poor and repressed people. Thus far, since their inception, the “fundamental rights” enumerated in Articles 9-28 of Pakistan’s 1973 Constitution have not been granted to the people. In fact military dictators and their civilian acolytes have done all that they could to murder democracy in its nascency in Pakistan. The crime, of course, has not gone unnoticed and in one instance  it has been exposed by Allen McGrath in his most excellent book The Destruction of Democracy in Pakistan in which he unequivocally holds Munir CJ as being the foremost accomplice of the Army’s designs in conclusively ousting the civilian leadership from running the country forever. Continue reading

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