THE 1973 CONSTITUTION
The Constitution looked at in detail through the remainder of this book is the one Zulfiqar Ali Bhutto is credited with having gifted to the nation; he was the President under whose aegis it was drafted in 1973.
After assuming power, Bhutto’s first act was to call on the leaders of all the parliamentary parties to contribute to building a consensus about the nature of the new Constitution that would govern Pakistan. While himself a proponent of a strong presidential system, a series of compromises would lead to the promulgation of a Constitution that provided for a federal parliamentary system.The federation was to comprise the four provinces, FATA, the Northern Areas, and Azad Jammu and Kashmir; and the formula of power sharing seemingly one that favoured devolution to a greater extent than in 1962. The Prime Minister was also designated the Chief Executive and Head of Government. He could only be removed by a vote of no-confidence of the Assembly. The President would be the Head of State, voted in by a joint session of the bicameral legislature and act only on the advice of the Prime Minister. The upper house of the legislature, the Senate, was conceived as a counter-majoritarian, regionally representative, and indirectly-elected body. The system of proportional representation that was the electoral formula for the 1971 elections was retained for the lower house, the National Assembly. Additionally, an expansive list of fundamental rights was guaranteed for citizens and, for some rights at least, other non-citizen residents of Pakistan.
Although Bhutto traded the office of President for that of Prime Minister, his record was not one of steadfast adherence to this constitutional division of powers. While he would succeed through much of his tenure to keep the army occupied and away from politics,[151] it must be noted that Bhutto’s inheritance and choice in many ways was to replicate the style and substance of martial rule.
The class basis of the support that the PPP had secured was quite diverse and included the ranks of the small peasantry, students and the urban working class. Nonetheless, the basis of power for the regime was in fact an insecure coalition of ‘the military-bureaucratic elite, the urban bourgeoisie, the landowners and the neo-colonialist military-capital interests’[152] and its role was to mediate, through strong central governance, the competition between them. Thus, in reference to both electoral and strategic power, the choice was to adopt constitutional divisions of power and decentralise through federalism, whilst enabling the military in particular to remain strong by bolstering its budget and enforcing laws that restricted criticism of it.Significantly, Bhutto used an emergency provision of the Constitution to whittle down the expanse of fundamental rights guarantees on the day that the Constitution was passed. Further, his regime passed a number of constitutional amendments aimed at curtailing the powers of the judiciary and undermining its independence. While Bhutto was actively engaged in seeking to insulate and expand his powers as Prime Minister, he was also establishing the conditions for his own demise. One regrettable aspect of this was the way in which he himself compromised judicial independence.[153]
In 1973 the Supreme Court had delivered a verdict on Yahya’s rule which declared him a usurper to power and the doctrine of revolutionary legality inapplicable to his claims for power. The case was decided after Yahya had been ousted, but was significant nonetheless for articulating a higher morality to ground valid laws and legitimate authority. Had a strict line been drawn from this, the Asma Jilani case onwards, it is hard to see how the two military coups following the passage of the 1973 Constitution could have been validated so readily by the courts.
However, both for political expedience and in the pursuit of radical transformations through a programme of Islamic socialism, Bhutto coopted the courts into his enterprise of rule.
Thus, when Bhutto took special interest in the dispensation of a case involving army personnel who had helped to dispose Yahya in an act of mutiny, allegedly to install one of Bhutto’s competitors in power, the Supreme Court compliantly delivered a judgment that upended many of the principles that Asma Jilani had elaborated.[154] The case was an appeal by these former officers not to be tried by military tribunals, as Yahya had authored the change in law that allowed for such trial of retired officers. Whereas Jilani had laid out the principle that only those acts of a usurper that were conducive to the good of the populace would be condoned, in the FB Ali judgment it was given that neither standard of ‘reason or morality’ nor any ‘philosophical concepts of law’ would be the means of judging the validity of existing law. Rather ‘positive law, that is to say, a formal pronouncement of the will of a competent law-giver’ is always to be construed as valid.[155]The tension between seeking a higher law to contain executive and legislative powers as against the maintenance of a minimalist position of according deference to procedural validity has played out repeatedly in the higher courts in the decades since the passage of the 1973 Constitution. This is discussed in subsequent chapters through a number of cases, in which the basic structure doctrine is employed to argue that such a higher law exists in the form of ascertainable principles that undergird the Constitution as a whole.[156] This tension was ablated during Bhutto’s rule through the determinate affirmation of a minimalist position by the court, and this surely indicated to another usurper, Zia-ul-Haq, that the judiciary could be relied upon to abstain from straining itself in complicated jurisprudential exercises.
There have been two lengthy military dictatorships, which followed upon the promulgation of the 1973 Constitution, both validated by courts through the doctrine of state necessity.
General Zia engineered the second coup in Pakistan’s history in 1977, declared martial law and eventually ensured Bhutto’s execution. Seven years of his reign (1977—1988) occurred in a state of constitutional abeyance. The 1973 Constitution was only restored after significant alterations were made through the Eighth Amendment of 1985. The most significant change augured by this instrument was to bolster the powers of the President, to the extent that he could order the dissolution of elected Assemblies on the basis of fairly broad criteria.It was only in such conditions that Zia could countenance the return of democracy, which during his life was controlled to the further extent of ensuring that the first electoral exercise of 1985 was held on a nonparty basis. When in 1988 the first free elections were held after Zia’s death, the government that was installed had Benazir Bhutto, daughter of Zulfiqar, as its Prime Minister. However, this Assembly was dissolved by President Ghulam Ishaque in 1990. Nawaz Sharif, a favourite of the establishment that included the army elite and the President was then elected in 1990 but his government too was to face the same fate, now at the elapse of three years. Bhutto and Sharif would each have one more reign in power during the 1990s but neither, again, was able to complete their constitutionally-mandated term of five years in office. Although Sharif ensured the passage of the Thirteenth Amendment to the constitution, taking away the President’s powers of dissolution, the seizure of power by General Parvez Musharraf in 1999 was the means by which this Assembly and Sharif’s majority government stood dissolved.[157]
By the time that General Musharraf engineered his coup in 1998, a previously authored script for military rulers engaging in such extraconstitutional acts was available for reenactment. Like Zia before him, Musharraf administered a loyalty oath upon members of the higher judiciary and promulgated a Provisional Constitutional Order. One stark difference was that he was compelled by a judicial decision to reconstitute the National Assembly within three years from the time that he assumed the office of President. Ultimately, Musharraf’s reign tottered when a popular uprising framed in the idiom of rule of law set in chain a series of events that led to elections and the assumption of power by a People’s Party government in 2008. This was to be the first Assembly in Pakistan’s history that both served its mandated five- year term and was smoothly succeeded by another elected government.