PROF. KHURSHID AHMAD
In response to my rejoinder to groups, and dialogue between the rights of the people, which is usually expressed in his statement published in the Pakistan Times of August 24, 1989, the Attorney General chose to draw upon an article of mine written in October 1985 during discussion in the National Assembly on the Eighth Amendment, when a final version of the Bill, on which consensus was sought, had yet to crystallise.
In that article, I had emphasised that “the Constitution must never be tailored to suit individuals, howsoever noble or great they may be. Whenever institutions have been tailored to fit individuals, such institutions have not outlived the persons for whom they were made.”
I also emphasised that “Constitution should always be a consensus document. It should be above party politics.” In view of this, I had submitted that the amendments made by the PPP government during 1972–77 (except the one about the Ahmadis) had been incorporated arbitrarily in the Constitution in the interest of, and at the strength of, the party in power alone, and “were never accepted by the nation and never enjoyed the confidence of the people.”
I had requested the Parliamentary Group and the Independent Parliamentary Group to arrive at a consensus, as dialogue between representatives in the National Assembly and the Senate is the only way to arrive at an agreed set of amendments to the Constitution.
Secondly, the Attorney General disclaims my observation that “during the entire PPP rule, 1972–77, the country was under Martial Law or was under emergency powers and suspension of fundamental rights.” He justifies that Bhutto had to become a civilian Chief Martial Law Administrator because the Supreme Court laid down that after abrogation of the Constitution, the law-giver of the land was the CMLA.
If this was the position, then what was the status and role of the National Assembly in adopting the Interim Constitution (1972) and the Constitution of 1973? And if this is to be the position, then were President Ayub Khan and Gen. Yahya Khan not valid law-givers? Has not the Supreme Court observed in the Asma Jilani case that: “Parliament is competent to amend a constitution only through a new consensus”?
Was it really essential for Mr. Bhutto to take over and continue as Chief Martial Law Administrator? Did Mujibur Rahman become a CMLA in Bangladesh, or did he just take over as Prime Minister and frame a new Constitution? Is it not a fact that the Assembly was called in April 1972 only after persistent demands from all parts of the country, and after all efforts on the part of the PPP government to justify continuation of Martial Law had totally failed? Is it not a fact that all actions taken under Martial Law were incorporated arbitrarily?
Every Constitution is a living document and is expected to respond to the challenges that emerge from time to time. I had written in my first rejoinder (full text published in The Nation) that “even those who had certain reservations about some provisions of the Eighth Amendment are now heaving a sigh of relief, admitting that now there is a better balance of power and a more effective set of checks and balances between the President and the Prime Minister, safeguarding the process of democracy in the country and restraining the People’s Party from becoming wielders of despotic power.”
While I stand by the general thrust of my argument and acknowledge that the final consensus version of the Eighth Amendment did correct a number of weaknesses and lapses of P.O. 11, 14, 20, and 24 of March 1985, there is scope for improvement in a number of provisions of the Constitution as they stand today. Negotiations between the PPP and other opposition groups are the only way to arrive at a consensus.
CIVILIAN CMLA
I would like to thank the learned Attorney General for correcting me on the matter of constitutional amendments made by Gen. Zia-ul-Haq. I have no hesitation in admitting that he is right in the case of President’s Order No. 3 of 1979, through which Chapter 3-A in Part VII of the Constitution was added, i.e., the creation of the institution of Shariat Benches at High Courts and the Supreme Court. However, it deserves to be noted that this amendment represented a step in the direction of fulfilling the Islamic provisions of the Constitution and was vastly acclaimed in the country and abroad.
While I stand by the general thrust of my argument, I must point out that emergency was imposed on November 23, 1971, and continued in force by Article 280 of the Constitution of the Islamic Republic of Pakistan, and was revoked by Presidential Proclamation dated September 15, 1977. During the period of Mr. Bhutto’s government, there was not a single day on which emergency did not remain imposed on the country.
The learned Attorney General claims that Fundamental Rights were suspended on July 5, 1977. Perhaps, he has forgotten that the accord between PPP and PNA, which he has invoked, contained as item number seven the provision relating to Fundamental Rights.
“Kelson, therefore, does not contemplate an all-omnipotent President and Chief Martial Law Administrator sitting high above society and handing its behests downwards. No single man can give a constitution to the society which, in one sense, is an agreement between the people to live together under an order which will fulfil their expectations, reflect their aspirations, and hold provision for the realisation of their selves. It must, therefore, embody the will of the people.”
The declaration further states:
“…by shall be withdrawn on the signing of the Accord and all Fundamental Rights shall stand restored, nor shall a new Emergency be imposed for the duration of the Accord except with the previous approval of the Council.”
If Fundamental Rights were not suspended, what had been sought to be restored?
He claims Fundamental Rights were restored in 1975-76. To set the record straight, let me quote from the Report of Amnesty International, London, for the year:
“The pattern of arrest and detention in Pakistan of critics of the government, mainly under the emergency laws, has continued over the past year. Those arrested include writers, editors, printers and, on one particular occasion, even lawyers assisting in cases of a political nature…”
Attorney General Yahya Bakhtiar stated that there were only nine political prisoners in Pakistan. Amnesty International feels that this figure in no way reflects the true scale of political imprisonment. In November 1975, unofficial estimates of the number of political prisoners in Pakistan ranged as high as 38,000. This figure appears to be based on a statement given by the Government of Sindh province, giving the total of persons detained during 1974 under preventive detention laws (other than DPR) as 36,279. Figures of a similar range were given by the government for 1972 and 1973. Amnesty International estimates, on the basis of these and other reports, that at least several thousand prisoners are actually in prison for political reasons.
Amnesty International Report for 1977 expressed deep concern about the detention, trial procedures, and treatment of government opponents in Pakistan. It is estimated that “before 1977, there were already at least several thousand political prisoners in Pakistan, the vast majority held without trial.” The report described “the serious erosion of fundamental rights in Pakistan reflected in the post-election events.”
The learned Attorney General has also claimed that “not a single amendment was passed by throwing out any member of the opposition from the Assembly,” and has asked me to specify the date and the amendment which was passed by throwing the opposition MNAs out. He has called my allegation “baseless” and a “wild statement.” It is not my memory that is failing; it is the Attorney General who is trying to hide facts and to mislead the public.
The facts are that on November 14, 1975, when the Assembly was discussing the Constitution (Fourth Amendment) Bill, members of the opposition were not allowed to introduce amendments, were harassed and then, on the pretext of disorderly behaviour, were thrown out physically from the Assembly. Although only three persons were named by the Speaker, almost all opposition members, including the acting Leader of the Opposition Mufti Mahmud and Mr Ahmad Raza Khan Qasuri, were expelled.
This is the evidence given by one who was physically thrown out. The disgraceful event has also been recorded in a number of books published in the world. Let me quote Professor Khalid B. Sayeed, who records in his book Politics in Pakistan: The Nature and Direction of Change (Praeger, New York, 1980):
“Later, during a National Assembly session in November 1975, when the opposition members voiced their bitter opposition to the way the government was pushing through a constitutional amendment limiting dissent, the Federal Security Force was brought in and several protesting opposition members were beaten and physically ejected from the assembly (p. 107).”
A special correspondent of The Guardian, London, also records the incident in a story published on February 6, 1976. Let the readers decide who is distorting facts: the Attorney General or someone else.
The Attorney General insists that amendments to the 1973 Constitution were not arbitrary because they were passed by the majority. Nobody denies there having been passed by majority. PPP had 102 captive votes in an Assembly of 144. The real question about their arbitrariness relates to three aspects: first, they were introduced by the government on the basis of brute majority.
Eighth Amendment and the Attorney General-IV
By Senator Prof. Khurshid Ahmad
The Attorney General has contended that in a parliamentary system the Prime Minister can be removed by a simple majority and has no absolute power over parliament. The Prime Minister is a creature of parliament and is accountable to it. The 1973 Constitution made parliament subservient to the Prime Minister. It was not a parliamentary system, but a mockery of it.
So the situation is not as monolithic as the learned Attorney General would like us to believe. In the constitutional debate that arose on the Home Rule Bill in 1913, The Times took the position as to the “undoubted right of the sovereign to dissolve parliament,” that: “Legally there is no question that under the Constitution there are certain reserved rights of the Crown; but they are atrophied by long disuse.” In response to this, Sir William R. Anson, a leading constitutional lawyer, wrote:
Allow me to express my complete agreement with Sir William Anson’s masterly exposition of the principles regulating the exercise of the prerogative of dissolution.
It is not too difficult to realise that in a case where the head of the state has to arbitrate between the executive and the legislature, his power is discretionary. If he were to act on the advice of the executive head (the Prime Minister), how could he arbitrate? The power to dissolve parliament in all these cases is not dependent on the advice of the Prime Minister, but is there in spite of him. If this is not discretion, what else is?
The learned Attorney General also tries to shift the ground from “all parliamentary democracies” to “the Westminster model.” He says: “Besides, we are following and talking about the British pattern of parliamentary system.” Let us now take up the British model.
First of all, the 1973 Constitution is based on the British model, as we have already shown. In the British constitutional law, Sir Ivor Jennings says in his book Cabinet Government:
“The Queen’s function is, it is suggested, to see that the Constitution functions in the normal manner. It functions in the normal manner so long as the electors are asked to decide between competing parties at intervals of reasonable length. She would be justified in refusing to assent to a policy which subverted the democratic basis of the Constitution, by unnecessary or indefinite prolongations of the life of parliament, by a gerrymandering of the constituencies in the interests of one party, or by fundamental modification of the electoral system to the same end. She would not be justified in other circumstances; and certainly, the King would not have been justified in 1913.”
After establishing the fact that the power to dissolve parliament is one of the prerogatives of the head of the state, who is called upon to arbitrate in disputes between the executive and the legislature, the Inter-Parliamentary Union reference book Parliaments of the World states:
“In its classic form, the power to dissolve parliament is, strictly speaking, one of the prerogatives of the head of the state…”
Even if we ignore all these realities, I want to submit with all humility that the learned Attorney General is not correct when he asserts that the issue is so firmly settled in the British parliamentary system. If anyone cares to study and examine the literature produced on this issue during the last one century, one cannot but agree that the issue is not uncontroversial and settled as the learned Attorney General assumes.
Eighth Amendment
While Lord Hugh Cecil, Prof. Dicey, J.H. Morgan, and others did not ignore the prerogative powers of the Crown, leading constitutional lawyer Prof. A.V. Dicey supported the view that the prerogative can, in certain cases, be so used as to set aside the will of the nation.
“Dissolution is, in its essence, an appeal from the legal to the political sovereign. A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be, different from the wishes of the nation.”
The legal position, as far as I could ascertain, is that this prerogative has remained unchanged and operative. That it has not been resorted to in practice is a different matter. If all parties to the democratic process respect rules and conventions, the prerogative would not be used but that does not mean its non-existence.
Moreover, the fact remains that in extraordinary situations, the Crown has taken initiatives. One such example is the establishment of a national government in the 1930s at the initiative of King George V.
My intention is not to go into the political history of the United Kingdom. I only wanted to show that the position about discretion to dissolve parliament without the advice of the Prime Minister, even in the Constitution of the United Kingdom, is not what the learned Attorney General is trying to establish.
Finally, I want to make two more assertions: First, the clear November 1988 mandate given by the Linked mandate to the parties that have been voted into the National Assembly. The PPP has received only 39 per cent of the only 14 per cent of the total registered voters in the country. It could get only 104 seats in a House of 237.
The government must try to operate within the framework of the mandate people have given to the two major parties in parliament.
It should also be understood clearly that the Constitution cannot be amended by a referendum. The honourable minister has stated that an amendment to the Constitution can be made only through the process laid down in Article 239 of the Constitution. Referendum is not a constitutional option in this respect.
There is some clamour that the Eighth Amendment should be repealed. It is an accepted principle of law that merely by repealing an amendment, the amended law is not only changed; a new amendment is required, which needs a two-thirds majority of both the Houses of Parliament. Moreover, it must be understood that if the entire Eighth Amendment goes, the whole fabric of the present political system would collapse.
The Eighth Amendment increased the strength of the National Assembly from 200 to 237. Women’s representation has increased from 10 to 20. Representation for non-Muslims has also been ensured. If the Eighth Amendment is taken out in toto, the National Assembly will collapse with it, otherwise there has to be a complete reallocation of seats. All constituencies would have to be re-allocated and re-demarcated. If the Senate’s position is affected, so would be the authority of the Acting President, who took over by virtue of being the Chairman of the Senate, and under whose authority the election of November 1988 took place.
The whole system would collapse.
The talk of revocation of the Eighth Amendment, as let loose, is not only wild but an invitation to disaster. People in responsible positions should be careful before making such statements. There is no harm in reasoned discussion on constitutional issues, including the merits and demerits of changes made in the Constitution through amendments.
The only reasonable course to amend the Constitution is to develop a new consensus. Unless PPP and IJI, in the National Assembly and the Senate, concur, no amendment in the Constitution can take place. The PPP government has refused to respond to the IJI’s offer to come to a consensus on constitutional amendments and initiate negotiations. They are instead resorting to agitational tactics, which can hardly help in this respect.
Justice (Retired) Mohammad Yaqub Ali Khan is also very critical of the Eighth Amendment. But his proposal contains the most reasonable way out of this controversy: that a committee of Parliament (both Houses) may review all the amendments made in the 1973 Constitution since it was enacted on August 15, 1973, and submit its report to both the Houses. This is a course of action that deserves serious consideration.
Unless there is cooperation and unless the National Assembly and the Senate work together, no meaningful constitutional change can take place. The manner in which this crusade against the Eighth Amendment is being carried out shows that it is an effort to subvert the Constitution. If they are honest about democracy, they must accept the realities as they are.
