Ex-SC judge says Constitution should only be amended for people’s benefit

Published July 28, 2019
RETIRED Justice Sarmad Jalal Osmany. — White Star
RETIRED Justice Sarmad Jalal Osmany. — White Star

KARACHI: Retired Supreme Court judge Justice Sarmad Jalal Osmany said on Saturday that the Constitution should only be amended to facilitate the people of the country, but unfortunately, rulers in Pakistan had tinkered with it to enhance their powers.

He said this during his talk at a seminar — Constitutional Evolution of Pakistan: Projecting Beyond Horizon — at the Dadabhoy Institute of Higher Education (DIHE) here.

Giving a brief history of the Constitution, Justice Osmany said on the eve of independence Pakistan did not have a constitutional document. There was the Government of India Act 1935, which was adopted as the provisional constitution.

The 1973 Constitution was amended seven times in Zulfikar Ali Bhutto’s tenure

“More or less it was a colonial constitutional structure. Event­ually the first constitution of Pakistan came into being in 1956. What took Pakistan nine years to come up with it, whereas it took India two years to do it,” he asked, explained that the reason for it was the unfortunate demise of the Quaid-i-Azam Mohammad Ali Jinnah and the assassination of Liaquat Ali Khan.

The only beneficial thing that came out of the Constituent Assembly was the Objectives Resolution in 1949, he said, adding that it laid down the principles of the state: Pakistan will be an Islamic polity, it will be a democracy, there will be fundamental rights, there will be independence of the judiciary, and protection of minorities.

Justice Osmany said in typical Western thinking a constitution was a social contract, but as far as Pakistan was concerned, it’s a trust, and God Almighty is the centre of the trust. Everything belongs to Allah.

After the 1956 constitution came into being, the real issues started. [Earlier] the first draft of the constitution went to Governor General Ghulam Mohammad. Since it talked about a parliamentary system, he discovered he would not have any powers, so he immediately dissolved parliament. Subsequently, the cases started pouring such as the Maulvi Tamizuddin Khan case. Ultimately Iskandar Mirza became governor general, after which Ayub Khan came, threw him out and evolved the 1962 constitution, which was a presidential form of government, he said.

He said that the Supreme Court upheld martial law, then Ayub Khan was shown the door in 1969 and Zulfikar Ali Bhutto came in and the 1973 Constitution was passed.

At this point Justice Osmany asked the question: “Why do we need so many amendments to the Constitution? The American constitution is 250 years old, it has only had 12 or 13 amendments, and for the past 100 years there has been no amendment to it. Why do we do that? Because the rulers want to tinker with the Constitution in order to enhance their powers. Mr Bhutto ushered in the first seven amendments to the Pakistan constitution within the space of four years. Two or three of them were person-specific; he wanted to favour some people in the judiciary.”

He said former military dictator Ziaul Haq brought in the 8th Amendment to suit himself, and that was upheld by the Supreme Court. Benazir Bhutto didn’t tinker with it too much. Then Mian sahib [Nawaz Sharif] came. He wanted to declare himself the Ameerul Momineen through an amendment, and it didn’t happen. “People have grandiose images of themselves that they are indispensible. That is one of the reasons that the Constitution has been amended so many times. Gen Pervez Musharraf also did it to save the form of government he had introduced,” he said.

Justice Osmany said the Constitution should only be amended for the benefit of the people. After all, the state of Pakistan is a trust. Perhaps the only redeeming feature [of it all] is the 18th Amendment; it sought to bring back the Constitution to its original picture, how it was originally drafted etc, though there are some anomalies in it, he said.

Advocate Asad Jamal in his presentation said that constitution-making was a difficult process. In societies such as Pakistan, which have been decolonised, there’s multiethnic population. The colonisers had the divide and rule policy; there were ethnic divisions which were hidden during those times because the people were struggling against colonial rulers to gain freedom.

In Pakistan, a number of transitions had taken place in the last seven decades, he said, adding: “We also experienced separation of one major part of Pakistan, East Pakistan, so the first amendment made to the 1973 Constitution was the recognition of Bangladesh.”

Mr Jamal said 25 amendments have been introduced to the Constitution — 22 have been carried through and three were not approved by parliament. Between 1974 and 1977, in Bhutto’s tenure, seven amendments were introduced and between 1977 and 1986 two amendments were introduced, including the 8th Amendment which was a very long document that gave protection to all the actions taken by Gen Zia.

The seminar was organised by the Centre for Peace, Security and Development (CPSD).

Published in Dawn, July 28th, 2019

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