Is Removal of Parliamentary System Possible?

[Saiyan0321]

Parliamentary system has now been enshrined in the constitution of 1973

By Saiyan0321

With the rising incompetence of Federal Governments, both present and past, and the falling standards of governance in general be it Federal governance or Provincial, the people of Pakistan have started wondering whether a change of system will bring to them the long sought after relief. For this purpose an unknown party named “Hum Watan Party” filed a petition in the Supreme Court of Pakistan to order for a referendum to be held on whether the people wanted Presidential system or Parliamentary system. Such a case was filed previously last year and the petition was dismissed.

Social media erupted with many stating that this is an act of the establishment in consolidating its power and to bring back dictatorships whereas an equal number declared that the current system has failed and a proper change in the system is needed for Pakistan to function properly. Conspiracy theorist held that this is part of the forthcoming, yet never to have arrived, change. The question then remains whether the petition can bring forth such a change? And can we ever leave the parliamentary system? The Answer to both is a blunt NO.



For the former, the petition itself tried to create a long road that the Supreme Court of Pakistan, empowered by Article 184 (3) can declare that the system is an infringement of the Fundamental Rights of the people of Pakistan and call for the referendum based on the implementation of those rights. The notion is legally flawed since the said Article does not confer the Supreme Court with the power to bring forth Referendums nor to declare the system itself as an infringement of the Fundamental Rights since the said Article itself creates a limit that the power within 184(3) could be used on the Fundamental Rights enshrined within the Constitution and declaring a system defunct and an infringement on the rights of the people would be to act in a manner outside the borders of the Constitution 1973 which the Supreme Court of Pakistan is not empowered to do. The Supreme Court declared its power in the famous case of Imran Khan and Others vs Election Commissioner of Pakistan and Others PLD 2013 SC 120 where the court held the following

“Thus, in the light of the law laid down in the aforesaid cases, it is clear that this Court, under Article 184(3) of the Constitution, not only has the jurisdiction to pass appropriate orders in the cases involving questions of public importance with reference to enforcement of fundamental rights guaranteed under the Constitution but is also empowered to ensure fulfillment of the command of the Constitution of holding elections honestly, justly, fairly and in accordance with law.”

So we see that Article 184(3) works within the ambit of the Constitution of Pakistan and declaration of a defunct system would be an act that would be outside the powers of the Constitution. A Supra-Constitutional act is not within the powers of the Supreme Court nor within the powers of the Parliament.



Secondly the act of a Referendum is not something the Supreme Court of Pakistan is empowered with since such a power was under the control of the President in Article 96A but was removed in the 18th Amendment 2010 and is now only located in Article 48 Section 6 which states

“If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered .by either “Yes” or “No”.”

So the power of such is vested within the Parliament and not within the Supreme Court nor within the Fundamental Rights of the people. The ‘Right to Vote’ and the ‘Right to form Political Parties’ is enshrined but Referendums are not part of the Fundamental Rights. The people who support such an act or revolution need to ask the honorable Prime Minister as to why he hasn’t called for such a Referendum since it is most definitely part of its power to place such a request to the parliament and get the wheels turning.

The judgment of the Supreme Court should be the dismissal of the petition. Now coming to the latter on whether we can leave this system or not. The founding fathers enshrined the Parliamentary system within the famous Objectives Resolution which stated;

“WHEREIN the State shall exercise its powers and authority through the chosen representatives of the people”

The above was interpreted that the executive power shall be vested within the chosen representatives of the people, not a single representative i.e. the President but representatives meaning the parliament which shall hold the executive powers and shall elect amongst themselves people who shall be conferred with such powers and responsibilities i.e. President and Prime Minister. In the landmark case of “State vs Zia Ur Rehman PLD 1972 SC 49” where the Supreme Court of Pakistan held that the Resolution was the grounds for the constitutional framework of the country and it would always have a strong impact on the constitution of the country and it stated that in this case the Resolution had held that the power of the people would be in the hands of the legislative assembly along with the declaration that a court from the legal framework cannot declare that legal framework as defunct or abrogate it entirely since such a court must work within the ambit of the said framework.

The Resolution was made part of the Constitution as Article 2A. The Preamble of the Constitution of 1973 also enshrined the Parliamentary form of democracy with the words

“Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.”

And with that we can see that the representatives of the National Assembly were given the executive powers by the people of Pakistan and this is indeed part of the Preamble and the Preamble is the soul of the constitution since it reveals the mindset of the framers. The Constitution enshrined within itself the parliamentary system.

Now the enshrining of the Parliamentary system through the judgments of the Supreme Court of Pakistan was done in the following cases

“Mehmood Khan Achakzai and Others vs Federation of Pakistan and Others PLD 1997 SC 426” which brought forth the question of the basic structure of the 1973 Constitution. The case defined the Objectives Resolution and the Preamble of the Constitution. It held that the structure of the country is based on Parliamentary system and it shall be Parliamentary system blended with the provisions of Islam. The question rose on the powers of the President in line with Article 58(2)(b) where the court held that it did not alter the system itself and only provided a president with executive power with checks and balance which can be found in other parliamentary democracies. The court held that Pakistan was always a parliamentary democracy and created a bar on the legislative that it cannot amend the basic structure of the Constitution 1973 which was Parliamentary democracy, independence of judiciary and Federalism.

“Syed Zafar Ali Shah and Others vs General Pervez Musharraf and Others PLD 2000 SC 869” held the order of the PLD 1997 SC 426 and again held that the system of the state will be parliamentary and barred the legislative on passing any amendment that would change such. The most recent of such a case was PLD 2013 SC 1” which again held that the government structure of the state is Parliamentary and it cannot be changed.

Rather than taking part or giving limelight to such individuals or parties who take action to gain some spotlight, we must all ensure to work together in working with the system and bringing appropriate change from within because the problem in Pakistan is not the system itself but all of us who are a part of it. We await Messiahs and new systems but fail to understand that whether it be Presidential or Parliamentary, it is the people who make the country and in any system, the only ones that can bring proper change are the people through self-introspection and bringing all those that are incompetent or corrupt, be it a politician or military general, to justice by open condemnation of such be it the perpetrator is a politician, bureaucrat, judge or a general.

 

[VCheng]

Parliamentary system has now been enshrined in the constitution of 1973

By Saiyan0321

With the rising incompetence of Federal Governments, both present and past, and the falling standards of governance in general be it Federal governance or Provincial, the people of Pakistan have started wondering whether a change of system will bring to them the long sought after relief. For this purpose an unknown party named “Hum Watan Party” filed a petition in the Supreme Court of Pakistan to order for a referendum to be held on whether the people wanted Presidential system or Parliamentary system. Such a case was filed previously last year and the petition was dismissed.

Social media erupted with many stating that this is an act of the establishment in consolidating its power and to bring back dictatorships whereas an equal number declared that the current system has failed and a proper change in the system is needed for Pakistan to function properly. Conspiracy theorist held that this is part of the forthcoming, yet never to have arrived, change. The question then remains whether the petition can bring forth such a change? And can we ever leave the parliamentary system? The Answer to both is a blunt NO.



For the former, the petition itself tried to create a long road that the Supreme Court of Pakistan, empowered by Article 184 (3) can declare that the system is an infringement of the Fundamental Rights of the people of Pakistan and call for the referendum based on the implementation of those rights. The notion is legally flawed since the said Article does not confer the Supreme Court with the power to bring forth Referendums nor to declare the system itself as an infringement of the Fundamental Rights since the said Article itself creates a limit that the power within 184(3) could be used on the Fundamental Rights enshrined within the Constitution and declaring a system defunct and an infringement on the rights of the people would be to act in a manner outside the borders of the Constitution 1973 which the Supreme Court of Pakistan is not empowered to do. The Supreme Court declared its power in the famous case of Imran Khan and Others vs Election Commissioner of Pakistan and Others PLD 2013 SC 120 where the court held the following

“Thus, in the light of the law laid down in the aforesaid cases, it is clear that this Court, under Article 184(3) of the Constitution, not only has the jurisdiction to pass appropriate orders in the cases involving questions of public importance with reference to enforcement of fundamental rights guaranteed under the Constitution but is also empowered to ensure fulfillment of the command of the Constitution of holding elections honestly, justly, fairly and in accordance with law.”

So we see that Article 184(3) works within the ambit of the Constitution of Pakistan and declaration of a defunct system would be an act that would be outside the powers of the Constitution. A Supra-Constitutional act is not within the powers of the Supreme Court nor within the powers of the Parliament.



Secondly the act of a Referendum is not something the Supreme Court of Pakistan is empowered with since such a power was under the control of the President in Article 96A but was removed in the 18th Amendment 2010 and is now only located in Article 48 Section 6 which states

“If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered .by either “Yes” or “No”.”

So the power of such is vested within the Parliament and not within the Supreme Court nor within the Fundamental Rights of the people. The ‘Right to Vote’ and the ‘Right to form Political Parties’ is enshrined but Referendums are not part of the Fundamental Rights. The people who support such an act or revolution need to ask the honorable Prime Minister as to why he hasn’t called for such a Referendum since it is most definitely part of its power to place such a request to the parliament and get the wheels turning.

The judgment of the Supreme Court should be the dismissal of the petition. Now coming to the latter on whether we can leave this system or not. The founding fathers enshrined the Parliamentary system within the famous Objectives Resolution which stated;

“WHEREIN the State shall exercise its powers and authority through the chosen representatives of the people”

The above was interpreted that the executive power shall be vested within the chosen representatives of the people, not a single representative i.e. the President but representatives meaning the parliament which shall hold the executive powers and shall elect amongst themselves people who shall be conferred with such powers and responsibilities i.e. President and Prime Minister. In the landmark case of “State vs Zia Ur Rehman PLD 1972 SC 49” where the Supreme Court of Pakistan held that the Resolution was the grounds for the constitutional framework of the country and it would always have a strong impact on the constitution of the country and it stated that in this case the Resolution had held that the power of the people would be in the hands of the legislative assembly along with the declaration that a court from the legal framework cannot declare that legal framework as defunct or abrogate it entirely since such a court must work within the ambit of the said framework.

The Resolution was made part of the Constitution as Article 2A. The Preamble of the Constitution of 1973 also enshrined the Parliamentary form of democracy with the words

“Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.”

And with that we can see that the representatives of the National Assembly were given the executive powers by the people of Pakistan and this is indeed part of the Preamble and the Preamble is the soul of the constitution since it reveals the mindset of the framers. The Constitution enshrined within itself the parliamentary system.

Now the enshrining of the Parliamentary system through the judgments of the Supreme Court of Pakistan was done in the following cases

“Mehmood Khan Achakzai and Others vs Federation of Pakistan and Others PLD 1997 SC 426” which brought forth the question of the basic structure of the 1973 Constitution. The case defined the Objectives Resolution and the Preamble of the Constitution. It held that the structure of the country is based on Parliamentary system and it shall be Parliamentary system blended with the provisions of Islam. The question rose on the powers of the President in line with Article 58(2)(b) where the court held that it did not alter the system itself and only provided a president with executive power with checks and balance which can be found in other parliamentary democracies. The court held that Pakistan was always a parliamentary democracy and created a bar on the legislative that it cannot amend the basic structure of the Constitution 1973 which was Parliamentary democracy, independence of judiciary and Federalism.

“Syed Zafar Ali Shah and Others vs General Pervez Musharraf and Others PLD 2000 SC 869” held the order of the PLD 1997 SC 426 and again held that the system of the state will be parliamentary and barred the legislative on passing any amendment that would change such. The most recent of such a case was PLD 2013 SC 1” which again held that the government structure of the state is Parliamentary and it cannot be changed.

Rather than taking part or giving limelight to such individuals or parties who take action to gain some spotlight, we must all ensure to work together in working with the system and bringing appropriate change from within because the problem in Pakistan is not the system itself but all of us who are a part of it. We await Messiahs and new systems but fail to understand that whether it be Presidential or Parliamentary, it is the people who make the country and in any system, the only ones that can bring proper change are the people through self-introspection and bringing all those that are incompetent or corrupt, be it a politician or military general, to justice by open condemnation of such be it the perpetrator is a politician, bureaucrat, judge or a general.

A nice, but wishful read.

In Pakistan, anything is possible, depending on the circumstances. The Constitution is nothing but a document, dictators amend or abrogate it was they wish, any court can render a needed rubber-stamped verdict according to the doctrine of necessity, religion is the hand-maiden of power centers, and the law serves those who flout it with the most impunity the best. Any pretense that Pakistan, and Pakistanis, have somehow discovered the importance of the rule of law is just that - a pretense designed to obfuscate, and nothing more.

In summary, the uniquely Pakistani system is working exactly as intended.

 

[Saiyan0321]

A nice, but wishful read.

In Pakistan, anything is possible, depending on the circumstances. The Constitution is nothing but a document, dictators amend or abrogate it was they wish, any court can render a needed rubber-stamped verdict according to the doctrine of necessity, religion is the hand-maiden of power centers, and the law serves those who flout it with the most impunity the best. Any pretense that Pakistan, and Pakistanis, have somehow discovered the importance of the rule of law is just that - a pretense designed to obfuscate, and nothing more.

In summary, the uniquely Pakistani system is working exactly as intended.

Not really. Even the boldest of dictators had to work under the parliamentary system and while they manipulated the system to suit themselves however they couldnt escape the basic structures. Ayub was able to declare a Constitution defunct and brought a new one but Zia was not able to do that because the Constitution had clauses that protected its sanctity and people empowered it no matter how little was, it was there, enough for the most powerful man in Pakistan to declare it a piece of paper but never having the guts to throw it away as such and post him, we witnessed how the constitution was empowered more and we witness this with Musharraf where the courts did fight and used the Constitution against his martial law and contained his emergency powers and again it was highlighted that Musharraf couldnt change the basic structure of the constitution and post him, it is now empowered even more. I get where you are coming from however it is not pretense because many stood by the Constitution and have defended it through whatever and wherever they could and while the military may have the biggest gun yet steamrolling the opposition became all the more harder for them that they are now forced to do this behind the scene stuff which is also being challenged every step of the way. Even my effort to write about just this is also a form of opposition. As generations of dictators come and go, so do the generation of those that opposed them come and go and tomorrow, when we are all dead, others will stand.

 

[Saithan]

Pakistan will have to introduce auditing on a different yet institutional level untaintable/unreachable by Parliament.

I would argue that should an institution of the sort I mentioned be established. Parliament, ministers and such would be held accountable. And any parliamentarian etablishment should consist of all parties present in the parliament.

So they can tear each other apart.

Autocracy alone is not good enough to manage a nation, but semi autocracy while politicians rip into eachother and/or make coalitions and inter party cooperation on top of it might yield the desired result

 

[Nilgiri]

Pakistan will have to introduce auditing on a different yet institutional level untaintable/unreachable by Parliament.

Honestly it can be done by judicial branch (since that is the repository of arbitration regarding such w.r.t the highest legal document known as constitution)....

Checks, balances and sound analysis/discussion on and of the supreme court etc are supposed to be effectively done by political parties (and media outlets, other societal power groups etc) winning power and appointing (as neutral as possible but nuanced/directed too) judges (over terms much longer than their political tenure)...so that over time there is balance there in interpretation and application over longer time period that helps to counter more impulsive political forces that may arise....or in case of Pakistan all too often: the military.

It basically comes down to respect for the system set up already, everyone doing their bit to implement it in good faith and honesty (in greater interest of the country past politics) and allowing passage of time to iron out the gross violations of it in the previous decades....and build up the bedrock credibility for say a century of time or so. The more robust the system, the longer it lasts....some have now lasted for many centuries (somewhat an aberration in larger history) and that is where lot of the ideas are taken from in the fundamental setup of a nation state.

In my overall conclusion, this is all taken broadly as far as the elite/elitists have that good faith and honesty....regardless of how many further steps and fixes and channels you may find in some current snapshot to micromanage it more...given the fealty to the macro-managing ideals must be there as first principle as far as possible in as many as possible with the power and position.

The judicial branch is a very excellent branch to develop and consolidate (especially on the effective mid and final tier implementation on the citizenry, regardless of their many other identities and statuses etc) for any country for this bedrock approach.

All are equal before the law, its all really fundamentally encapsulated there.

@Joe Shearer

 

[VCheng]

Not really. Even the boldest of dictators had to work under the parliamentary system and while they manipulated the system to suit themselves however they couldnt escape the basic structures. Ayub was able to declare a Constitution defunct and brought a new one but Zia was not able to do that because the Constitution had clauses that protected its sanctity and people empowered it no matter how little was, it was there, enough for the most powerful man in Pakistan to declare it a piece of paper but never having the guts to throw it away as such and post him, we witnessed how the constitution was empowered more and we witness this with Musharraf where the courts did fight and used the Constitution against his martial law and contained his emergency powers and again it was highlighted that Musharraf couldnt change the basic structure of the constitution and post him, it is now empowered even more. I get where you are coming from however it is not pretense because many stood by the Constitution and have defended it through whatever and wherever they could and while the military may have the biggest gun yet steamrolling the opposition became all the more harder for them that they are now forced to do this behind the scene stuff which is also being challenged every step of the way. Even my effort to write about just this is also a form of opposition. As generations of dictators come and go, so do the generation of those that opposed them come and go and tomorrow, when we are all dead, others will stand.

And I thought you were doing so well in your argument until the last line destroyed it all.

As long as generations of dictators are able to usurp power periodically to eliminate any institution that may dream of mounting any effective challenge to the military, and set the nation back by decades relative to other countries, the sanctity of the Constitution follows the value of its currency right down the toilet.

And the present circus is more of the same, albeit with the proverbial lipstick on the unholy animal.

 

[Saiyan0321]

And I thought you were doing so well in your argument until the last line destroyed it all.

As long as generations of dictators are able to usurp power periodically to eliminate any institution that may dream of mounting any effective challenge to the military, and set the nation back by decades relative to other countries, the sanctity of the Constitution follows the value of its currency right down the toilet.

And the present circus is more of the same, albeit with the proverbial lipstick on the unholy animal.

Generation of dictators did not mean future martial law but how the transition of generations that stood against Ayub to those that stood against Musharraf. How it follows and no matter how much you try to suppress a voice, it doesnt get suppressed. It gets passed on, from one to another even if the maker of the previous voice never met the maker of the current voice, it still gets passed on and eventually no matter how many you kill, it doesnt stop.

Think of it as a metaphor giving light to the fact that People have stood for the sanctity of the rule of law no matter how small or large that resistance maybe.

 

[VCheng]

Generation of dictators did not mean future martial law but how the transition of generations that stood against Ayub to those that stood against Musharraf. How it follows and no matter how much you try to suppress a voice, it doesnt get suppressed. It gets passed on, from one to another even if the maker of the previous voice never met the maker of the current voice, it still gets passed on and eventually no matter how many you kill, it doesnt stop.

Think of it as a metaphor giving light to the fact that People have stood for the sanctity of the rule of law no matter how small or large that resistance maybe.

I understand your point, but as long as there is a periodic resetting of the proverbial clock, the people get sent back to zero, to start all over again. One never wins a race by standing. Walking is better, and running is best, preferably forwards, and with a direction in mind.

 

[Saiyan0321]

I understand your point, but as long as there is a periodic resetting of the proverbial clock, the people get sent back to zero, to start all over again. One never wins a race by standing. Walking is better, and running is best, preferably forwards, and with a direction in mind.

I dont think there is a resetting. We can call it a crawl but not a reset. Reset would be what Ayub did. Abrogate a constitution and bring in a new one that proclaimed him as the sole Sovereign. No other dictator post that was able to do that.

Ayub took down the Constitution and brought a new one that made him the central figure

Yahya took down that central figure constitution but didnt bring a new one and left it to the winner of the 1970 elections.

Zia struggled to set aside the constitution and was then forced to amend the constitution to bring in some presidential powers but the Constitution remained and fearing that document, he so arrogantly proclaimed a piece of paper, continued a martial law till his death.

Musharraf could was barely able to hold it away and was only able to bring amendment that brought forth Article 58 (2) (b) and the constitution was restored. He couldnt beat the system like Ayub could.


Do you see the slow and eventual growth of the Constitutional setup of the country. Its not a reset. We are crawling but there is movement. The same court that once declared Ayub to be a savior and his action to abrogate the Constitution as justified, declared Musharraf an Usuper, declared Zia as a dictator. Where the court gave Yahya the power to throw away the 1962 constitution, it also told musharraf to restore the assemblies in three years and told him that the constitution will remain in force.

I see this as minimal progress and i see this as the result of people who fought and stood against dictators.

Today they hide behind elected governments afraid to show their faces, fearing the backlash any front assault would bring. This hiding will also be taken from them one day until they will have no choice but to surrender

 

[Saiyan0321]

To tell you the time frame, i will most likely not be alive to be see that day or perhaps my children wont be either. It is that far away but it will come.

 

[VCheng]

To tell you the time frame, i will most likely not be alive to be see that day or perhaps my children wont be either. It is that far away but it will come.

Ah yes, the good old "lazim hey ke hum bhi dekhain gey" refrain. Hum ney bahut suna hey yeh.

The present setup alone is enough to prove that nothing substantial has changed as you hope. It remains the same, with some lipstick, that is all.

 

[Saiyan0321]

Ah yes, the good old "lazim hey ke hum bhi dekhain gey" refrain. Hum ney bahut suna hey yeh.

The present setup alone is enough to prove that nothing substantial has changed as you hope. It remains the same, with some lipstick, that is all.

I have no doubt. you are my elder and have experienced and seen enough to declare as such and i am not going against it. I may come to the same conclusion with my experience, as i grow old or i may witness something different. Let us see. Another thing for 'Dekhain gey'.

 

[Saiyan0321]

At 9:50 PM i would say Good night friend and wish for better days.