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June 9, 2002
REVIEWS: Constitution: dead or alive?
This book by a sitting judge of the Sindh High Court is the latest commentary on the constitution of Pakistan, which has been flouted and trampled with at will by the rulers, whether civilian or military.
This is a country where military dictators have invariably got away with plunder of the “basic and fundamental law” of governance because the courts never stood their ground in defence of the constitutional dispensation. They always proceeded to validate the strongman’s extra-constitutional measures and the so-called supra-constitutional PCO. It is therefore strange that a sitting judge, who has taken oath under the PCO, claims that “practically, a constitution can be abrogated, but it cannot be held in abeyance, as, so far it is alive, it accepts no authority over and above it”.
This Justice Rabbani writes in the introduction of the book where he recounts how the 1973 constitution was abrogated in 1977, though the authority claimed that it was held in abeyance and some of its provisions would remain in force under the Provisional Constitution Order (PCO) and President’s orders.
“The position was accepted by the simple nation though it was an absurdity in logic. A Constitution is basic and fundamental law and it can not be governed by any other law, order or authority,” the author writes.
“The Constitution was, however, re-enforced in 1985, and underwent the same operation in 1999. Again, the nation acquiesced and deceived itself into believing that the Constitution is still alive, having been held in abeyance. History shows that this medicine is not compatible with the disease,” Justice Rabbani observes.
His case is that a Constitution is a necessary creation of a secular state and secularism is an essential feature of a constitution. Most of the constitutions in operation in the world today declare the state to be secular, although they expressly provide a guarantee for freedom of religion. Pakistan’s constitution is a significant deviation from this principle, for the reason that the country was created in the name of Islam.
The only possible interpretation would be that the constitution recognizes the supremacy of the Sharia, that is, the Quran and the Sunnah.
Justice Rabbani believes that the powers of the President as spelt out in Article 45 was a negation of the trichotomy of power between the legislature, the executive and the judiciary each of which had separate and independent areas of functions.
Commenting on the power of the president to promulgate ordinances, as spelt out in Article 89, the author terms it a deviation from the concept that it is the exclusive function of the legislature to make laws. By empowering the president to promulgate ordinances when the National Assembly is not in session, the constitution empowers the executive to legislate.
Another important aspect of this Article is that a law made by the Parliament may be repealed by the executive through an ordinance. This makes the executive a super legislature, which is against the concept of the separation of powers.
His observations on the National Finance Commission (NFC) are very insightful. The ministers of finance at the centre and in the provinces have been made ex-officio members of the commission while other members are selected by the federal and the provincial governments. Even the number of the members to be selected has been left to the discretion of the federal government.
The federal government is required to specify the share of the net proceeds of the taxes to be allocated to each province and the recommendations of the commission, which is supposedly an independent body, are binding on the government. But the commission is a creation of the government itself and is hardly a neutral body.
The constitution gives extra-ordinary powers to the federal executive by empowering the President to decide which powers are to be exercised on the advice of the federal cabinet or the prime minister. He can make amendments and modifications in the law through a presidential order even though this is against the scheme of the constitution itself.
Commenting on Article 175, which pertains to the separation of the judiciary and the executive, he contends that the most significant fact that militates against this principle is that the executive has been given the power to appoint the judges of the superior courts.
With these powers in the hands of the executive, the separation of powers and the independence of the judiciary is merely a fiction. The highest judicial office in the country has been left totally to the discretion of the executive. Under Article 177, the president appoints the chief justice of Pakistan, and for that he does not have to consult anybody except the prime minister. Thus, it is the prime minister, who is the sole authority in selecting and appointing the chief justice of Pakistan. This hardly provides for an independent judiciary. The judiciary has attempted to restrain the powers of the executive by imposing the seniority rule, but the concept of seniority in superior courts itself is against the scheme of the constitution. Referring to the Articles providing for emergency powers, Justice Rabbani maintains that a proclamation of emergency can be issued under Article 232 or 234. Under the first, the government may allow the emergency to continue indefinitely because there is no provision for it to lapse after six months as is the case under Article 234.
This is a thought-provoking book. By analyzing the underlying implications of a number of articles of the constitution, Justice Rabbani has drawn attention to the numerous aspects of the basic law which need serious study — and may be amendments too.
The constitution of Islamic Republic of Pakistan: an analysis
By Justice S.A.Rabbani
Asia Law House, High Court Compound, Sindh High Court, Karachi
Tel: 021-9203163
Email:
alhouse@cyber.net.pk
460pp. Rs1000
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