the looming constitutional crisis

a couple of comments on Cyril Almeida’s column on the whole basic structure controversy:

1. It’s rather depressing that the two strongest arguments we have against the judiciary’s power to overturn a constitutional amendment (articles 239(5) and (6) and the Lawyers Forum case) are both a product of a dictator pushing in constitutional amendments via a rubberstamp parliament.

2. It’s significant he Chief Justice mentioned last week that judicial independence was guaranteed via Article 2A. That does sound like he’s building up a case for the argument that since the Objectives Resolution is part of the basic structure of the constitution, anything that challenges it can legitimately be struck down. In India, according to Justice Jaganmohan Reddy, the basic structure could be discerned from the preamble of the Indian constitution

3. the basic structure doctrine applied to Pakistan would be a complete disaster in terms of any hope for reforming the ISlamic character of the constitution. To understand this, compare the preamble of the Indian Constitution to the preamble of the Pakistani Constitution

Indian:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Purpose of Having a Preamble:

The Preamble to our Constitution serves two purposes: –

A) It indicates the source from which the Constitution derives its authority;
B) It also states the objects, which the Constitution seeks to establish and promote.

The Preamble seeks to establish what Mahatma Gandhi described as The India of my Dreams, “…an India in which the poorest shall feel that it is their country in whose making they have an effective voice; …an India in which all communities shall leave I perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of Intoxicating drinks and drugs. Woman will enjoy as the same rights as man.”

Pakistani:

Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;

And whereas it is the will of the people of Pakistan to establish an order :-

Wherein the State shall exercise its powers and authority through the chosen representatives of the people;

Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;

Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;

Therein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;

Wherein the independence of the judiciary shall be fully secured;

Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;

So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity :

Now, therefore, we, the people of Pakistan,

Cognisant of our responsibility before Almighty Allah and men;

Cognisant of the sacrifices made by the people in the cause of Pakistan;
Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice;
Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;
Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;
Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.

4. “Constitutionalism” as a system of ethics is meaningless. Constitutionalism in the US means something entirely different from constitutionalism in India and totally different from constitutionalism in Pakistan. Also, a written constitution is ultimately simply a means to suppress the sovereignty of the people’s representatives. This is mitigated somewhat when there’s a semi-decent constitution th at gives supremacy to the elected will of the people anyway, but when you have a constitution like Pakistan that explicitly surrenders sovereignty to god, the power of parliament invariably suffers.

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6 responses to “the looming constitutional crisis

  1. stuka

    OK, so I am sorry but I did not get it. I am familiar with the Indian constitution’s preamble from civics class and this was the first time I read the Pakistani one. What is the big deal that you speak of? Going through the preamble it seems to be in line with the Muslim welfare state ideology of Pakistan and then touches upon other aspects of governance same as India’s such as

    “guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

    Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;

    Wherein the independence of the judiciary shall be fully secured;”

    etc. etc.

    Can you elucidate?

  2. stuka

    maybe the crux of ur post is “reforming the Islamic character” but you seriously think there is any chance of making the constitution secular?

  3. Rabia

    well, given the overtly Islamic nature of the preamble – if this is considered as the foundation of the ‘basic structure’ of the Pakistani constitution by the judiciary, the judiciary will be able to strike down any proposed constitutional amendments that are not in line with the Islamic character of the state as envisioned in this preamble.

    thus far there has been a very limited method of Islamizing existing laws – it is described in part IX of the constitution and is only limited to the council of islamic ideology (which is, on the recommendation of the president able to advise on the islamicness of a law and its advice is non-binding). and i don’t think that it has any authority to strike down constitutional articles or amendments. even the federal sharia court added by Zia did not have the mandate to review articles of the constitution.

    under this new system of “basic structure” (if the judiciary does decide to go this route) – any constitutional amendment would be at risk of being struck down by the supreme court if it doesn’t conform with the ‘basic structure’ of the constitution.

    and yes, I do think that there was a chance of making the constitution secular – certainly there is a chance of making it more secular than it currently is, but this move by the judiciary would make that very difficult.

    by the way, the first part of the preamble is the objectives resolution… the munir report has a really good explanation of why, if the sovereignty is vested in god alone, then it basically means that the represenatives of the people can never be supreme. . Sris Chandra Chattopadhya also made a speech in the constituent assembly that makes that point.

  4. stuka

    “under this new system of “basic structure” (if the judiciary does decide to go this route) – any constitutional amendment would be at risk of being struck down by the supreme court if it doesn’t conform with the ‘basic structure’ of the constitution. ”

    Isn’t the judiciary undercutting it’s own viability then? After all the judges are not experts in Islamic law, how can they be final authority on the Islamic interpretation of the law?

  5. takhalus

    what was the constitution pre zia like minus the objectives resolution?

  6. Rabia

    takhalus i don’t think zia added the objectives resolution to the preamble, it was already there. he just made it a substantive part of the constitution via article 2a

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