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Spirit of the 1973 constitution

By Ardeshir Cowasjee 
A PROMINENT headline in this newspaper on June 25, 2009 informed us that our powerless prime minister, appointed by our power-charged president, “vows to revive the spirit of ’73 constitution”. His vehicle is the potentially everlasting committee formed to frame further amendments to restore the original Zulfikar Ali Bhutto constitution. 

Now, where was young Yousuf Raza Gilani in 1973? He was not sitting in parliament when the ‘spirit’ of the constitution in question was well aired at its unveiling on Aug 14 of that year. 

Does he recollect that the constitution was promulgated by a man who has the distinction of having been the first civilian martial law administrator; does he know that it was accepted by consensus, not unanimously as is often claimed? The majority of the members of that particular National Assembly were anxious to come up with a constitution, and any old constitution would do as it would be better than no constitution. 

So, it was grandly promulgated at noon on Independence Day, with much joy and jollity. How many of our present constitutionalists and contortionists remember that the life of the original document was of four hours duration? At 1600 hours that same day, Prime Minister Bhutto ordered the president he had appointed the meek and gentlemanly Fazal Elahi Chaudhry to sign an order which was notified in the Gazette of Pakistan, Extra, on Aug 15, 1973, No.F.24(1)/73-Pub. 

By this order the proclamation of emergency issued on Nov 23, 1971 was declared to be still in force, the reason being that while in force the president was empowered to order that the right to move any court for the enforcement of the fundamental rights conferred in the constitution was suspended and would remain suspended for the period the proclamation was in force. No court could be moved for the enforcement of the rights of the people — they were rendered non-justiciable. 

Thus were the people deprived, within the space of four hours, of 10 of the major fundamental rights guaranteed to them at noon on Aug 14, 1973. It was all a matter of premeditated fraud. 

The reason for this chicanery and short-lived constitution was Bhutto’s desire to ‘deal with’ (or to use one of his favorite terms, ‘fix’) his political opponents, men such as Khair Bakhsh Marri, Ghaus Bakhsh Bizenjo, Ataullah Mengal and Wali Khan, by having them arrested and imprisoned. 

Such was the birth of the constitution and the spirit in which it was raised. Then came Bhutto’s own amendments to his constitution, seven of them. The first, in 1974, redefined territories, covering the loss of East Pakistan in 1971. The second, also in 1974, stripped an entire community (the Ahmadis), once part of the majority, of its rights and declared it a minority. 

The Third Amendment of 1975 allowed the government to detain a person without trial for three months instead of one month as originally provided. The fourth, also 1975, enlarged the scope of preventative laws. 

In 1976 came the Fifth Amendment which extended the period of separation of the judiciary from the executive from three to five years, fixed the tenure of the chief justices of the supreme and high courts, and prohibited high courts in cases of preventative detention from granting bails before arrest or ordering the release of a person on bail. This was followed in 1977 by the Sixth Amendment by which chief justices of the supreme and high courts were to hold office for tenures of respectively five and four years irrespective of the specified retirement ages. 

These two amendments were made solely to favour judges of ZAB’s liking and to extend the term of the chief justice of Pakistan even though he had reached the age of retirement. 

The Seventh Amendment of May 1977 provided inter alia that high courts have no jurisdiction over persons and property in areas where the armed forces were brought in to aid the civil authorities. 

ZAB set the tone for further amendments to come. The rules of procedure were suspended for the passages of the Second, Fourth, Fifth, Sixth and Seventh Amendments, there was no debate, deliberation or consultation. They were all bulldozed through the same day they were introduced. The First Amendment took a week of bickering over the territorial limits and the Third Amendment was passed the day after its introduction. 

That was all ZAB had time for. June 1977 was a fraught month for him and the country and he was deposed by his own chosen anointed army chief, the wily Ziaul Haq, early in July. 

We know all about the notorious Eighth Amendment with which we live to this day and which had a catastrophic effect upon the constitution, involving 58 articles in toto and inserting three. One of the inserts was totally unwarranted — it was a simple duplication. Article 2A provided that the all-pervasive Objectives Resolution, the basis for so many ills that this country suffers from, which was and remains a preamble to the constitution would also be reproduced in the annex and made a substantive part of the document, to the nation’s detriment as has been well evidenced and sadly suffered. 

The Ninth Amendment of the Junejo government was never passed; the 10th, also of the Junejo era, concerning the summoning and prorogation of the National Assembly and Senate was passed after due deliberations. 

The 11th Amendment of Benazir Bhutto’s first government was not passed. Then came Nawaz Sharif’s first round and the 12th Amendment regarding special courts and speedy trials. Rules were suspended so that it could be rushed through the house. 

The 13th Amendment amending the Eighth Amendment to suit Sharif’s purposes for his second round was introduced in the Assembly and Senate on the same day and passed the same day. Sharif’s Fourteenth Amendment, also of 1977, ensured that there could be no dissent in any political party, and no defection from a party. It was passed the same day as it was introduced. 

We had a lucky escape from the Fifteenth Amendment by which Sharif hoped to declare himself amir-ul-momineen. It could not come up for debate in the Senate in which Sharif had no majority. The Sixteenth Amendment of 1999 affected the quota system — nothing startling. 

And then came Gen Pervez Musharraf and his government of 2002 which brought in the 17th Amendment of 2003, the main bone of contention bothering Prime Minister Gilani. His problem: his boss is not bothered. 

Now, which devilish spirit does Gilani 'vow' to revive?
arfc@cyber.net.pk