Seventh Amendment and the Constitutional Evolution of the Country

Saiyan0321

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ok, so i have been working on another book titled 'Legal Evolution of the 1973 Constitution' and this is excerpt from that project in works. It is still undergoing shifts and shifts on how much should i include the previous constitutions and all that. I have included them but should i include them alot. Anyhow this is an excerpt of it from the viewpoint of the 7th amendment in the Constitution.

Seventh Amendment; By this time, the country had witnessed great protests and Zulfiqar Bhutto had announced early elections, which were to be conducted originally in later 1977, were now conducted on 7th March 1977. The reason for such early election calls were to give Bhutto the edge by not giving the PNA anytime to prepare for the election. The PNA was struggling already as the party was home to internal rifts and they were unable to present a proper solution to the problems faced by the country and were only able to criticize the Pakistan People’s Party. Bhutto also used political targeting and suppressive force, thanks to the above amendments as a means to secure the election. The extremely conflicted election resulted in the victory of Bhutto who decided to form the government however the country saw utter chaos as the PNA came on streets and violence grew, Bhutto knew that he might need the help of a popular referendum thus he enacted the seventh amendment on 16th May 1977, just three weeks before the announcement of Martial Law. The amendment empowered the Prime Minister of Pakistan to take a vote of confidence from the people of Pakistan as a referendum. This was meant to be used as a means to quell the protesting PNA workers and with the referendum favoring Bhutto, he could then crush the united opposition. He also amended that any place where the armed forces were deployed, the high courts could not use Article 199 which is the Article of Writs meaning that anywhere the army was deployed for aid to civil power, the Fundamental Rights could not be enforced through court orders and those rights could be violated without any recourse or consequences. This was followed by brutal crackdowns and in the end Bhutto, after hearing that the army was about to take over, tried to fast track a compromise but unfortunately it was too late and on 5th July 1977, the Constitution which had been abused so badly and weakened to such an extent for the security of the power of a single person, was abrogated by the military once more and Bhutto, the framer of the Constitution who had used it for his personal gain, was now jailed by General Zia Ul Haq.

The above period of 1973-1977 was another sad chapter in the history of Pakistan and the abuse of constitutional power has been displayed above and this was done to secure the position of power but what the good prime minister did not take into account was that the power he was trying to secure came, not from authoritarian amendments but from the constitution itself and it was the constitution that was his defense but he had weakened it to such an extent and used it for his personal gain and power, that it led to the most undemocratic of institutions, once again come and remove the constitution. The story was the same. The legal order was set aside, the political leaders were jailed, the excuse of the country being in precarious situation and needed saving and lastly that a promise of new elections was made. The same speech was made and the symbiotic relationship between the people of Pakistan and the constitution, weakened for securing of power, was now cut.



Despite all of that. Bhutto and the 1973 Constitution faced a broken country that was broken on ethnic lines and it was their strength that the country was able to survive such a dangerous situation and when Bhutto crushed all separatist movements by 1978, the country was healed through the 1973 Constitution. This cannot be ignored and it must be stated that had the Constitution not been used for personal gains, then perhaps the country would have seen exponential constitutional growth but unfortunately that didn’t come to pass and the country would see a long dark night that would last till 1988. The lesson would be repeated on 12th October 1999.

Begum Nusrat Bhutto Vs. Chief of Army staff

The case was relying mainly on the judgment in Asma Jilani Case of 1972 asking the court to declare the Martial Law to be unconstitutional and a treasonous act in accordance to Article 6 of the 1973 Constitution. The petitioner argued that Martial Laws have been declared illegal and such abrogation was now an act of treason and the doctrine of necessity was no longer applicable since it had been declared void in 1972. The defendant argued that since Bhutto had done massive rigging in the 1977 elections and was the reason behind the chaos that had engulfed Pakistan thus his government had lost all constitutional validity and the ensuing situation of a civil war was only brought under control thanks to the timely action of the army. The 9 bench court passed a judgment stating that the petition was not maintainable and with it brought forth a new version of Doctrine of Necessity. This version would plague Pakistan till the coming of the 18th amendment.

In summary the court decided that The Supreme Court said that the legal consequences of an abrupt political change, by imposition of martial law, have to be judged not by application of an abstract theory of law in vacuum but by consideration of the total milieu preceding the change. That the action of and motivation of the persons bringing the change and to the extent that the old legal order is being preserved. The judges highlighted that if the judges were taking oath based on the 1973 constitution post the Martial Law then this means the 1973 constitution was still the supreme law of the land apart from certain parts which were held in abeyance on account of state machinery. That the steps taken by the Chief Martial Law Administrator are an extra-constitutional step taken to protect the people of Pakistan and the integrity of the country and thus he is empowered to take all executive and legislative measures for the country.

The views of the judges were

Justice Nasim Hasan Shah; The situation that had happened between the four months and the condition of the country had repudiated the constitutional and moral authority of both the Federal and Provincial governments for which the 1973 Constitution had no solution provided in it. As the Constitution could not measure upto it, the Doctrine of Necessity becomes necessary and applicable, for where the safety of the state and the welfare of the people are in imminent danger, necessity justifies a departure from ordinary course of law.

Justice Qaiser Khan; The good justice declared that a constitution could be annulled, abrogated or destroyed through two methods. One by a constitutional act which would be the method provided in the constitution itself for changing or replacing it and the other by an unconstitutional act such as through a revolution or a coup d’état. In this case the constitution was put in abeyance which is to say that it was suppressed for the time being by an extra-constitutional act of issuing a proclamation of emergency. Now the validity of this act could not be tested on the basis of the constitution of 1973 as it was no longer there having been suppressed and there was no other superior norm on the basis of which it could be tested. Such an action is called as meta-legal by some jurists. By the case of Asma Jilani 1972, the legitimacy of the Dosso case of 1958 could not be applied here since it was overruled however the Asma Jilani case of 1972 could not be applied here in the present case as the facts and circumstances of the takeover are quite different from the facts and circumstances of the previous takeover. In the present case the takeover was quite justified and the Chief of Army staff could not be declared an usurper.

Justice Muhammad Afzal Cheema; The good justice utilized Islamic principles to justify the military takeover by stating that Islam is the ideological foundation of the country and any man-made legal system would be declared repugnant if it clashed with Islamic principles. He stated that the principles are subjectively centered around morality and are aimed at the establishment of an orderly and peaceful moral society by taking an equally pragmatic view in the matter of their application and placing the security, safety, and welfare of the people above everything else. Thus the doctrine of necessity is an inevitable outcome of this realistic approach and this has been recognized by Islam both in the individual as well as in the collective.

Justice Muhammad Akram; The good justice also utilized Islamic principles in his reasoning where he stated that Pakistan is an Islamic country and the basis of this is the Objectives Resolution with e4mphasis on Islam and morality thus we cannot divorce morality from law and the pure theory of law is not suited to the genesis of the state. It has no place in our politics and is unacceptable to judges charged with administration of justice in the country.

Justice Nasim Hasan Shah; The justice reasoned that despite the fact that the armed forces are in full control of the country. They have no intention to establish a new Legal Order and abrogate this the 1973 Constitution. The Constitution remains the supreme law and the judiciary and the president of Pakistan are functioning based on the powers of the Constitution. The change is only in the nature of Constitutional deviation rather than the destruction of one Legal Order and its replacement by another.



The justices above provided little more than excuses to give power to the dictator that would hold the 1973 Constitution hostage till 1988. The reasoning of the judges could be broken down to the following points.

That the 1973 Constitution was not abrogated but simply some of its Articles were held abeyance. The Constitution largely remained in power as the Supreme Law.

That the government had lost all moral and constitutional authority and the courts function on morals as well as law.

That Islam allows for such for the good of the welfare of the people and thus the takeover ws in line with Islamic principles and since Pakistan’s ideology was based on Islam thus the takeover was entirely legal.

The reasons were little more than excused that made Pakistan, a country formed through constitutionalism and law, a laughing stock in front of the world once again, The court tried to deviate from the 1958 Martial Law as much as they could but failed in their reasoning to justify a takeover and the courts abject surrender wrote a dark chapter in the history of Pakistan and brought all constitutional evolution to a screeching halt.

Firstly the act of arresting an elected prime minister and taking down his government was without a doubt an act of treason by the army since they are, by oath, tasked to defend the government and state and this was highlighted in the famous case of Asma Jilani 1972 and the courts back then had stated that the action of the armed forces did not help situation but only fed the chaos through their action. The army is no authority to set aside any Article of the constitution and the emergency powers, provided in the 1973 Constitution for such an act, are provided to the government. The army cannot claim that they have not attacked the Constitution by simply holding a few Articles in abeyance. This would provide justification for the army to hold in abeyance only Part II of the constitution out of 12 parts thus the action is legal since majority of the Constitution is still in power. Such reasoning weakens the constitution itself and while Bhutto damaged the 1973 Constitution by his authoritative amendments and usages of Articles, however it was this damage that dealt a fatal blow. Some of the best jurists in Pakistan shocked the entire world by this rash explanation. Even the holding in abeyance or to abrogate even a single Article is an act that deserved the punishment of treason.

Secondly it is not the duty of soldiers to decide when and how the government had or had not lost the moral authority to rule the country. That is for the people of Pakistan to decide and while the courts may highlight the failures of the government and punish them where they can for the excesses the government may have committed however what they can’t do is declare an entire elected government to be declared void due to moral reasoning. The courts were not authorized to decide whether a government is moral or not much less whether such immorality makes the government void or not. While the court may claim reasoners of morality according to some jurists however to dismantle an entire government which was elected just a few months ago is not amongst the powers of the court. The courts can find moral reasoning within law however what they can’t do is create their own morals as laws justifying unlawful acts and that is exactly what the courts did here. This also came as a huge blow to the constitution as the courts had to degrade the value of Law and the rule of law and bring forth concepts of morality and rule of morals as a justification. This was a concept worse than the Doctrine of Necessity since it provided infinite ammunition to the military to interfere in government and judicial administration by declaring the actions of both as immoral and against the welfare and interest of the people of Pakistan. The courts here weakened their own authority since they could wield the Law as a weapon or shield but when the courts threw this shield and sword to justify a hostile takeover by giving moral reasoning, they injured their own authority to such an extent that the country, to this day struggled to shake the talons of undemocratic forces. The courts also could not find reasoning even if morality was to be involved since the Martial Law had happened before the courts had declared the government of Bhutto as morally corrupt and void. Guns and tanks rolled before such a conviction was made and this act was similar to a policeman executing a person before his crime was adjudged. Would such an act be considered legal by any court or by any jurist? Then why was such considered legal here? This act brought upon the tyranny of a dictator and would do so again and even then, the Constitution would always be under siege by them.

There exist similarities between the 1958 takeover and the 1977 takeover since both overthrew governments formed and both of them brought the Army into politics. Both of them blamed the politicians for the chaos in the country and both of them promised to hold elections as soon as possible. The two Martial Law Administrators decreed that the provisions of their constitutions in hostage would remain in power till further notice and both of them claimed moral authority and justified their act as righteous since the act was committed for the sanctity of thr integrity of the state, to defend against the internal enemies attacking the state and for the welfare and betterment of the people. The two Martial Laws gained another similarity. Both of them were justified by the top judicial minds of the country through the infamous Doctrine of Necessity whether that doctrine stemmed from Kelson’s theory or from the Islamic principles or from the Objectives Resolution.

Lastly the court used Islamic reasoning however the honorable judges did not give take into consideration that Islam has always upheld rule of law to this extent that in Hadd, the act of rebellion or action against state is considered as a serious offence that is punished severely. The people laid siege to the house of Hazrat Usman (R.A) and martyred him and this act of rebellion and murder of a leader was condemned by all parties and by all jurists and that event was evidence that such arbitrary and rash actions can lead to civil war since post his martyrdom, the Rashidun Caliphate witnessed Fitnah that would engulf the empire till the rise of the Ummayad Caliphate. This is the strongest of evidence that the act of removing an elected leader through forceful and rash actions can only lead to more chaos and is condemned in Islam and Shariah. If the judgment truly took inspiration from the Islamic ideology of Pakistan and from the Objectives Resolution, then it would have condemned this hostile takeover and the court would not have feared from doing so. Unfortunately the courts did not do that and brought upon Pakistan a form of fitnah and civil strife that would continue till the end of 2008 with Pakistan being home to two Martial Laws, extreme political infighting and constant interference from undemocratic forces.

With the enforcement of a new Doctrine of Necessity, the country plunged into absolute chaos as Zia Ul Haq focused on creating a friendly judiciary for the trial of the incarcerated prime minister and through that post the ending of the presidential term of Fazal elahi, Zia became president and revived the 1973 Constitution partially where he kept most of the powers in his own control. The Constitutional evolution of the country was no in regression and in 1979, the new president banned all political parties and called the parliamentary system, a system of disorder and preferred the presidential system however it must be stated that no country, where rule of law exists, allows an all-powerful president. Such countries are considered a joke by the international world. The US system is a very good example of a presidential system and the United States President is both powerful and constrained by the Congress and the Judiciary. He is neither supreme nor omnipotent. Whether the system if parliamentary or presidential, it does not matter as long as the country has separation of powers and balance so that a tyrant may not rule the country. Unfortunately the dictators of Pakistan have focused entirely on a system that was little different than a monarch ruling a kingdom. The 1973 Constitution revival was only to allow him to exert his power to Pakistan more easily and without any administrative difficulties. In 1981, he disbanded the defunct parliament and created a Shura which was a board of advisors to help his Islamization of the country.

To delay the elections and hold his power more, he utilized the 7th amendment to hold a popular referendum where he won by 97.6% on the question whether he should continue as President of Pakistan or not? Needless to say such high victories are only witnessed by dictators in dictatorial regimes and through that he used the excuse that the people supported his regime and his ideals and were no longer interested in a parliamentary system nor were they interested in the 1973 Constitution. However Zia was not confident that he could keep the Constitution nor the parliament under control no matter how much control he had. He had seen how Ayub and Yahya had struggled and even the Constitution made for Ayub Khan and by Ayub Khan, could not save him. Thus on 2nd March 1985, he introduced the Presidential Ordinance No. 14 which revived the 1973 Constitution with great amendments. The order had amended many articles in the Constitution of 1973 effectively making the country a presidential system where the president held major powers. It was also through this order that the Constitution underwent Islamization where the Parliament was changed to ‘Majlis e Shoora’ and Article 2A was added which annexed the Objectives Resolution into the Constitution of 1973. The order also provided for the addition of qualification and disqualification of Parliamentary members. It also added Article 239 which empowers the parliament to amend any article in the constitution. Previously the parliament was empowered to act as such however such power was not mentioned before but now such power was explicitly mentioned so that the President could use the power to make changes anywhere in the Constitution of 1973 and this created an obstacle in the evolution of the 1973 Constitution.

The Articles of the Constitution are meant to empower the other Articles and not act as an impediment to the others. They draw their strength by being pieces of a grand puzzle put together. Even a single misshape would ruin the puzzle and that was exactly what this dictatorial amendment did. Article 239 empowers the parliament to make any amendment they see fit however Article 8 states that any law which contravenes the Fundamental Rights shall be considered void. So if the parliament is empowered under Article 239 to remove the Fundamental Rights when is it void due to Article 8 or valid due to the power allotted under Article 239 and then to make sure such question never comes to pass the Order added that such cannot be challenged in court which meant that if parliament passed an amendment or passes any law then the courts have no locus standi thus breaking the concept of Trichotomy of Power which was the cornerstone of the 1973 Constitution. One can argue that this was Zia’s attempt to make the Constitution of 1973 more like the Constitution of 1962 and lastly it gave credence to all the orders passed by him.

The order was a severe blow to the constitutional evolution of the country and the fact that such amendments remained in the constitution leading the political turmoil of the 1990s and the ultimate Martial Law of 199
9.

@VCheng @Joe Shearer @Kaptaan @T-123456 @Saithan @Yankeestani
 

VCheng

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The reasons were little more than excused that made Pakistan, a country formed through constitutionalism and law, a laughing stock in front of the world once again, The court tried to deviate from the 1958 Martial Law as much as they could but failed in their reasoning to justify a takeover and the courts abject surrender wrote a dark chapter in the history of Pakistan and brought all constitutional evolution to a screeching halt.

And not much has changed since then in this regard. Pakistan's regression into a classic banana republic is nearly complete, and just about irreversible. Witness the recent interview by the "I am democracy" PM who then went on to support the military as the "rightful" power above the Constitution.
 

Kaptaan

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PM who then went on to support the military as the "rightful" power above the Constitution.
Where did he say this? And I am jusat curious which country do you use as measure of Pakistan's evolution? USA, India, UK, Turkey, Nigeria etc ???
 

VCheng

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Where did he say this? And I am jusat curious which country do you use as measure of Pakistan's evolution? USA, India, UK, Turkey, Nigeria etc ???

His interview is a matter of public record. Pakistan is unique, to be sure.
 

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His interview is a matter of public record. Pakistan is unique, to be sure.
Ffs it may be on record but could you possibly, pretty please with mountain of sugar on top be so kind as to give a link to this dunce. Many thanks in advance.
 

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Kaptaan

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Maybe I am losing my eyesight but where does it say in the links provided by you that PMIK said "military power above constitution"? Maybe @Saiyan0321 has better eyesight then me and can point out this to me. Some quotes from your links -

"Prime Minister Imran Khan said on Thursday had an ISI DG asked him to step down as the premier, he would have immediately demanded his resignation."

“I am a democratically elected prime minister, who could dare tell me that,” the prime minister said.

"We learned that the military’s job is not to run the country,” he said. “If democracy is harming the country, it doesn’t mean that it should be replaced with martial law.”


From this PMIK is saying exactly the opposite of what you claimed.
 

VCheng

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Maybe I am losing my eyesight but where does it say in the links provided by you that PMIK said "military power above constitution"? Maybe @Saiyan0321 has better eyesight then me and can point out this to me. Some quotes from your links -

"Prime Minister Imran Khan said on Thursday had an ISI DG asked him to step down as the premier, he would have immediately demanded his resignation."

“I am a democratically elected prime minister, who could dare tell me that,” the prime minister said.

"We learned that the military’s job is not to run the country,” he said. “If democracy is harming the country, it doesn’t mean that it should be replaced with martial law.”


From this PMIK is saying exactly the opposite of what you claimed.

Of course. It takes not only eyesight, but the freedom to rise above sycophantic boot-polishing to see the reality of what he said.

Let me help you. Did he not admit that the ISI was not under a previous civilian government. but now we are to believe that it is under his control simply because he is not corrupt, as if the ISI is the arbiter of political corruption? May be handing out envelopes with cash on international media does not count? :D
 

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Did he not admit that the ISI was not under a previous civilian government. but now we are to believe that it is under his control simply because he is not corrupt
He does NOT in that sentance state that military power is above civilians. He merely made statement of fact of what existed prior. I already pasted what he said quite unambigously -

"We learned that the military’s job is not to run the country,” he said. “If democracy is harming the country, it doesn’t mean that it should be replaced with martial law.”

As to rest your merely indulging in what is best described by your favourite word "what-a-boutery". Or what I would call shifting goalposts.
 

VCheng

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He does NOT in that sentance state that military power is above civilians. He merely made statement of fact of what existed prior. I already pasted what he said quite unambigously -

"We learned that the military’s job is not to run the country,” he said. “If democracy is harming the country, it doesn’t mean that it should be replaced with martial law.”

As to rest your merely indulging in what is best described by your favourite word "what-a-boutery". Or what I would call shifting goalposts.

" He merely made statement of fact of what existed prior." And now we are to believe that the situation has changed? Without any evidence?

(BTW, under what legal cover does ISI investigate political corruption? :D )
 

Kaptaan

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BTW, under what legal cover does ISI investigate political corruption?
Non. He already said the military should NOT take over civilan governments even if they are bad. If the question is to me then my reply is the same legal cover police officer Chauvin had when he wasted that Negro. And before you start farting about "oh he got arrested" this type of thing happens regularly. Hundreds of cases have occured over the decades with officers facing little sanction and as such continue with umpunity to use every third Negro as target practice.

And Trump is on record for showing clear support to the bent police forces, white supremacists militias. Poiint to note. Nothing is perfect. Not even land of freedom. So stop expecting this utopian standards from Pakistan and then lacerating it because it does not live upto them.
 

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Non. He already said the military should NOT take over civilan governments even if they are bad. If the question is to me then my reply is the same legal cover police officer Chauvin had when he wasted that Negro. And before you start farting about "oh he got arrested" this type of thing happens regularly. Hundreds of cases have occured over the decades with officers facing little sanction and as such continue with umpunity to use every third Negro as target practice.

And Trump is on record for showing clear support to the bent police forces, white supremacists militias. Poiint to note. Nothing is perfect. Not even land of freedom. So stop expecting this utopian standards from Pakistan and then lacerating it because it does not live upto them.

None. Thank you for accepting the illegality of what ISI does.

(The rest of your classic whataboutery I will ignore. D )
 

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Firstly the act of arresting an elected prime minister and taking down his government was without a doubt an act of treason by the army since they are, by oath, tasked to defend the government and state and this was highlighted in the famous case of Asma Jilani 1972 and the courts back then had stated that the action of the armed forces did not help situation but only fed the chaos through their action.

So what exactly has been the post litigation on this kind of stuff? If there is no real justice given on something as high as treason (as soon as courts are able to investigate and prosecute such illegal actions of a previous era when there is finally a return to constitutional rule)...what deterrence is really offered to would-be-violators again? That is precisely why after Zia, Mushy played his hand just decade later....and things have been shaky and very unresolved on this matter since.

I would also like to ask what is the process for constitution re-convention out of interest (say first step of a hypothetical complete fresh robust start)...is there a 2/3rds vote requirement for this in federal and provincial legislatures or something?

I have only really studied US constitution in depth as it is the one that most interests me (in a way its all roads lead to Rome in lot of events I studied "above" it first that I needed to analyse more) and one that I can robustly read huge amount of intellectual debate on, I have fairly limited study into others.
 

Saiyan0321

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So what exactly has been the post litigation on this kind of stuff? If there is no real justice given on something as high as treason (as soon as courts are able to investigate and prosecute such illegal actions of a previous era when there is finally a return to constitutional rule)...what deterrence is really offered to would-be-violators again? That is precisely why after Zia, Mushy played his hand just decade later....and things have been shaky and very unresolved on this matter since.

the period between Musharraf and Zia was of absolute turmoil. The thing is that zia had left the army well in control but he had allowed for no successor to come forth due to his own power security issues so after his death, there was no single face of the army to continue the martial law whereas the people, the politicians and the international community no longer wanted a dictatorship. So we had a civilian setup come forth in a largely militarized country where the army still held the threads Zia had used to control the country and one of them was the semi-presidential system where the president could dissolve the assemblies and declare emergency. Now this is where the 90s battles began as internal party conflicts and military involvements saw the two Major parties PPP and PMLN enter into absolute chaos. Ironically it is also that period that created some landmark judgments and would leave the scars that would pakistani politics for decades to come and was the necessary happening for the eventual 18th amendment. In this period no litigation was done against Zia, atleast i am not aware of such however there did happen three things.
1. That Fundamental rights in the constitution must be enshrined and the courts declared themselves guardian of such paving the way for landmark judgment like the Al-jehad judgment and Mehmood Achaklzai vs Federation of Pakistan. These paved the way for constitutional evolution.
2. The parties immediately realized that you cant give a single office such a huge power that it could basically shatter the very government of the country. The Trichotomy of power must be secured and it was this feeling that paved the way for the 13th amendment which was basically a lesser version of the 18th amendment but was reversed by musharraf and 14th amendment as ordinance which was another lesson so corrected. The 13th amendment and the 18th amendment basically removed the power of the president to declare an assembly defunct and abrogate it. This meant that the assembly would complete its five years which were witnessed by the assembly of 2002-2007 complete its term, 2008-2013, 2013-2018 and even this hung parliament looks to be constitutionally strong due to the fact that nobody can remove the assemblies.
3. That there must be placed a control on politicians voting against party lines and you can lose your membership for this and this was done because of the 90s politics where it was so common to create 'Hum Khiyal' groups that were basically a group that would declare itself ideology different in a political party and would rebel against party lines and this would weaken political party mostly sitting governments and they would be forced to surrender powers to the hands behind. Imagine nilgiri for a second that you are a leader in Pakistan and in an assembly of 342 members you have won the majority with 200. You are happy, elected prime minister and suddenly you find that 35 of those cretins in your party have formed a separate ideological group and are threatening the integrity of your assembly. They rebel and your majority becomes less than the required 171 and your government has fallen down. To secure your government you would concede everything and anything and there you go the 90s politics. You had this with the president rebelling and the army far stronger than it is now.

Come then to 2010 and there came the 18th amendment where president could no longer declare the assemblies defunct and remove them from power nor where there would be situations that a party would be broken from the inside so easily. There was another change (Ignoring provincial autonomy) that i will discuss now.

Deterrence were created and there we witnessed constitutional evolution and the constitution strengthened. For this you must look at the relationship between the constitutions and the dictators and how they have fought since the inception of Pakistan. The 1956 Constitution had no claw to fight. It held no article in the event of its own abrogation and Ayub came and removed it like a piece of paper and created the 1962 constitution which i have often joked was Ayubnama and due to it being a nothing constitution, it was easily removed by Yahya. So we saw the that next dictator did the same thing that the previous dictator did which means that there was little constitutional evolution in this period save for court judgments which pave for legal evolution. Then came the 1973 constitution and with we had the High Treason Act 1974 which made sure that nobody could abrogate the constitution and even Zia couldnt and he didnt. His entire rise to power was based on constitutional protection but Bhutto Consciously did not consider Abeyance of the Constitution since he himself wanted to utilize this legal loophole for his own gains and he did show that he would employ such tactics. He was powerful enough to do that. So when Zia came to power, he could not abrogate the constitution since the constitution held its won defenses and he knew that doing so would only weaken his control. Zia was smart and he created the pathway for Musharraf and for a long period he held the constitution in abeyance but never abrogated it. He wanted to convert it into something like the 1962 constitution but he couldnt even do that due to enshrining of the parliamentary system so all he could do was hold it in abeyance and pass ordinances. Isnt this a stark difference from the operations of Ayub and Yahya? This is constitutional evolution even if it is the simple act of a piece of paper becoming something that cant be removed, it is still constitution. For all his boast of the constitution being a piece of paper, Zia would not enter into open conflict with the constitution.

Then we had musharraf, who knew very well that this would not work. You cant abrogate the constitution nor even hold it in abeyance., The courts scrutinized his martial law with extreme severity and the 7th amendment was his only saving grace in 2002 when his time was being up and he earned himself 5 more years through a referendum. The constitution was restored in 2002 and elections anew. We can talk about how the military still held the country in chains but here is a fact that Ayub which easily removed a constitution passed by a constituent assembly could not be emulated by Zia and Musharraf simply because of the fact that there happened to be constitutional growth in the country. Yes you may scoff at this growth and compare it to the growth of a person going from crawling to standing with legs shaking from the weight but even that is growth. Sad growth of what should have been a constitutional marvel but growth nevertheless. It went from a dictator ripping a piece of paper with fervor to a dictator writing the obituary to military takeovers in Pakistan.

2008 and the most powerful man is locked left and right. He is forced to make concessions and eventually forced to escape as the country returns to democracy in a manner unseen in Pakistan for this one did not happen to be gifted to a single politician after a defeated dictator having lost 1/7th of the country and half the population, it did not come to the people after a dictator died in unseen circumstances. It was snatched in a manner that is still celebrated especially by my fraternity. You should hear some of the speeches in bar on this. Alot of throwing, invincible dictators, black coats reddened and restoration and end of cruel kings. Anyhow this happened then as civilian supremacy restored a few things happened.

18th amendment made sure to place abeyance and all the abrogation or anything you could do to the constitution was placed in it as protection of the constitution. This is why you see hidden coups and hidden hands but never upfront. It killed the era of a dictator marching tanks.

In litigation we had musharraf conviction and then in 2015 we had courts declare that Zia was a dictator and the ordinances he passed defunct especially one which chained the courts and the courts unleashed themselves post that.

Then we have political discourse where it has become common to defame the party by calling them products of dictators. So there has been evolution and all of this is not made up. This is something you can see in the study of our constitutional structure.

I would also like to ask what is the process for constitution re-convention out of interest (say first step of a hypothetical complete fresh robust start)...is there a 2/3rds vote requirement for this in federal and provincial legislatures or something?

Are you asking about amending the constitution? or writing a new one? Well i will answer both.

For new one. Well we only ever had three so the first was from the constituent assembly so that was the first one which was removed and then the next one was constructed by Ayub and his committee which was then approved by his cabinet and then enforced. the 1973 was different because post 1970, the 1962 was abrogated and there Bhutto basically presented a constitution to the assembly formed from the 1970 election as was the purpose since before the election 1970, it was held in an agreement between yahya and the political parties that the party that would form the government would bring forth a new constitution and they would present the constitution in the elected assembly and have it passed. The problem was that Mujib wanted the new constitution to be formed from his 6 points and that is where the mess started. The meetings between them largely held that 6 points should not be used as the base for the constitution. Anyhow through this bhutto presented the 1973 constitution in the assembly and it was approved. Didnt have a new constitution again.

If you are asking for amendment then here is a thing.

We had article 238 and 239 which speak of this procedure and hold that an act of parliament shall amend the constitution and dictators have amended the constitution based on this loophole that if the executive can pass ordinances in the absence of an assembly to be considered as an act of the assembly then the executive can also pass amendments in the absence of an assembly since the ordinance is considered an act of the assembly in the absence of an assembly and an amendment is considered an act of an assembly. This legal roundabout was answered when there was a limitation placed on ordinances.

Anyhow so the procedure is like this and there were some amendments.

1973 procedure was

A bill will originate in the national assembly and would be passed with a 2/3rd majority post which it would then be transmitted to the senate where it must pass with a majority only and if the senate passes such a bill by making amendments to it then the bill shall return to the assembly, where if passed by 2/3rd majority, it shall be presented to be assented by the president. If the senate does not pass the bill in 90 days then it shall be deemed rejected. If a president does not provide his assent in 7 days then he is deemed to have assented to the bill. If the bill concerns altering the limits of the province then the bill will not be presented to the president until the provincial assembly passes a resolution passed by 2/3rd


Then came 1985 presidential ordinance 14

The procedure changed and it was now that the bill could originate in either house and would be passed by 2/3rd majority both houses and it shall be transmitted to the provincial assemblies if it concerns their limitations and it must be passed by the majority of that provincial assembly. 7 days assent thing was removed and clauses were added that the parliament could amend any section of the constitution and the courts could not call it into question.

Mehmood Achakzai vs federation of Pakistan interpreted the article and declared that this does not include the basic structure of the constitution nor the fundamental rights.

and then in 2015 the DC declared that there can be no bar upon the courts and Zia was a dictator and his ordinance was defunct and could not be used to chain the courts.


So i hope i have given you a good glimpse of the constitutional evolution of the country . If you have more inquiries then feel free to ask and if i answer late my friend then please forgive.
 

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That there must be placed a control on politicians voting against party lines and you can lose your membership for this and this was done because of the 90s politics where it was so common to create 'Hum Khiyal' groups that were basically a group that would declare itself ideology different in a political party and would rebel against party lines and this would weaken political party mostly sitting governments and they would be forced to surrender powers to the hands behind. Imagine nilgiri for a second that you are a leader in Pakistan and in an assembly of 342 members you have won the majority with 200. You are happy, elected prime minister and suddenly you find that 35 of those cretins in your party have formed a separate ideological group and are threatening the integrity of your assembly.

Yah but this is slippery slope to over-legislate with a severe control etc. (given a representative in the end is acting in the represenation of votes he got from people)...especially given it can be abused by changing goalposts for say party purist higher ups to purge say more bipartisan benchwarmers at will.

I feel simply there should be party whip to handle this stuff (and eject the member(s) if issue is serious enough, so they become independent or another party's problem), and then maybe legislation for a party to primary its own seated members with special elections (or keep the terms short enough to recycle with that) or something within a logical defined process and then using that to explain to the seat constituents why they are running another guy against the existing one etc....and leave to their vote to correct.

The courts scrutinized his martial law with extreme severity and the 7th amendment was his only saving grace in 2002 when his time was being up and he earned himself 5 more years through a referendum.

That is exactly kind of thing that a new constitution is needed if you ask me. He clearly came to power illegally, a later referendum is kind of silly route for legal basis and also overly dependent on election and related institutions (already weak and recovering from the last dictator) now very likely controlled/influenced by the usurper.

Are you asking about amending the constitution? or writing a new one?

The former (with a caveat for "reconvention" which I will briefly mention here at end).

The US has two processes, one is by a well known precedent-established federal process (both houses pass amendment bill by a 2/3rds majority and then 3/4ths of total states have to ratify it by 1 of 2 available processes decided federally)

But there is also a state convention process where a 2/3 majority of current US states (34/50 currently) can call for a constitutional convention (in the name of passing amendments to then be ratified federally, but it is being debated if this can go even further since there is no precedent yet....many legal experts actually want to set the precedent and have effectively a new constitution made by using this process...or argue on the basis of the 1st convention being the precedent). Nautrally also a huge amount of counter-debate and resistance to it.



So i hope i have given you a good glimpse of the constitutional evolution of the country . If you have more inquiries then feel free to ask and if i answer late my friend then please forgive.

Yes a most detailed reply. To me it overall seems a game of cat and mouse in Pakistan...with the cat finding loopholes and then mice finding way to plug that gap/angle (more amendments addressed that way etc) when the cat has given them respite to do so.


Thank you for the time you put into the answer. @Joe Shearer might find it a good read.

That will be all the questions for now from my end, as I have other stuff to get a move on (China series etc) and my basic (cat/mouse) conclusion is formed on this matter in Pakistan's case.

We will thus see if there are any remaining loopholes (for overt non-democratic power grab and justification of it)....but even if there aren't now (and there is an increasing argument for it given succession of peaceful democratic power transfers that have happened now).... I feel the cat just has other less overt means to get its way anyway on what it most desires.
 

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feel simply there should be party whip to handle this stuff (and eject the member(s) if issue is serious enough, so they become independent or another party's problem), and then maybe legislation for a party to primary its own seated members with special elections (or keep the terms short enough to recycle with that) or something within a logical defined process and then using that to explain to the seat constituents why they are running another guy against the existing one etc....and leave to their vote to correct.
you know that guy actually had a whip right. Look there is little point of having whips when the politicians would simply meet others and them leaving would be even more damaging as they would jump ship. So once again lets say that you won a majority of 200 and are PM. Suddenly your hum khayal group rebelled and you kicked them out and as you did you just lost your majority in the parliament. US is a presidential system that evolved as such with a system in place and checks and balances to create democracy. We are a parliamentary system. A party that just lost a sitting majority because its members rebelled and left is a greater nightmare and was also employed in 1990s.

That is exactly kind of thing that a new constitution is needed if you ask me. He clearly came to power illegally, a later referendum is kind of silly route for legal basis and also overly dependent on election and related institutions (already weak and recovering from the last dictator) now very likely controlled/influenced by the usurper.

Yes and that was also corrected. He explained that he had brought the constitution back and a referendum was his legitimacy and dont think that the courts just sat down and took it. Many judges refused and resigned. In the 18th amendment the referendum was made subservient to parliamentary will.

Yes it is a cat and mouse game but that is what it is. The country constitutionally evolves that way and waisay slowly their places to hide is ending and the strings that were so open are now forced to be hid. At one point entire polling areas would be taken over by them and now rigging means having independents join various parties. Is that not progress?
 

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you know that guy actually had a whip right. Look there is little point of having whips when the politicians would simply meet others and them leaving would be even more damaging as they would jump ship. So once again lets say that you won a majority of 200 and are PM. Suddenly your hum khayal group rebelled and you kicked them out and as you did you just lost your majority in the parliament. US is a presidential system that evolved as such with a system in place and checks and balances to create democracy. We are a parliamentary system. A party that just lost a sitting majority because its members rebelled and left is a greater nightmare and was also employed in 1990s.

Yah hence I mean make the whip more procedural in (democratic) recourses available if its broken past well defined threshold. There is lot of options here for parliamentary democracies, compared to US system actually.

I do not think a "fire/replace/muzzle at will" will cut it (well)....because that can later be used to cut to good-faith use of bipartisan cross-voting too.

Rest has to be application of time based, i.e parties and people maturing.

Like 19th century US and even up to post WW2 wasn't very clean era at all either....lot of mistakes (in hindsight) were made with these kind of defections too (one even lead to a civil war)...but you stay the long course and learn from mistakes and put in better checks and balances....and with time (esp as people mature and educate more) the parties get institutionalised more as well so they carry heritage/weight and affect their own credibility by pulling stupid stunts in the eyes of the people.
 

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I do not think a "fire/replace/muzzle at will" will cut it (well)....because that can later be used to cut to good-faith use of bipartisan cross-voting too.
Well i would say that for this you need some every legal parliamentarians and their committees. Our legal evolution will always be hampered by incompetence so it is a slowly process
Like 19th century US and even up to post WW2 wasn't very clean era at all either....lot of mistakes (in hindsight) were made with these kind of defections too (one even lead to a civil war)...but you stay the long course and learn from mistakes and put in better checks and balances....and with time (esp as people mature and educate more) the parties get institutionalised more as well so they carry heritage/weight and affect their own credibility by pulling stupid stunts in the eyes of the people.


Lets see where the constitutional evolution takes us. Our first immediate problem should be to solve literacy, awareness and provide for supremacy of trichotomy of power and constitution. As each impediment gets removed, the evolutionary process will grow. This internal grouping left a scar. Lets hope there is evolution of the people themselves.
 

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