Archive for the 'Constitution' Category

Wardi Special: The Presidential Election - An Appraisal

Understanding Pakistan Project Team September 23rd, 2007

Guest Post By: Justice (Retd.) Wajihuddin Ahmad

MUCH has been said and more is likely to be said about the implications and connotations of the constitutional provisions germane to the forthcoming presidential election. The purpose here is to highlight cognate aspects here.

The official version on the subject is simple. They say that, in accordance with Article 41(7) of the Constitution, the presidential term, upon relinquishment of the office of the chief executive by the present incumbent, began on November 16, 2002, and would end on November 15, 2007. Article 41(7), as substituted by the Legal Framework Order, 2002 (LFO), with its proviso inserted by the Constitution (Seventeenth Amendment) act, is as reproduced below:

“(7) The Chief Executive of the Islamic Republic of Pakistan

(a) shall relinquish the office of Chief Executive on such day as he may determine in accordance with the judgment of the Supreme Court of Pakistan of 12th May, 2000; and

(b) having received the democratic mandate to serve the nation as President of Pakistan for a period of five years shall, on relinquishing the office of the Chief Executive, notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly:

Provided that Paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2003.”

These being the parameters of the current presidential term, the proponents of the official point of view rely on Article 41(4) of the Constitution to suggest that the ensuing presidential election having been postulated by the Constitution to be held not earlier than 60 days but not later than 30 days before the expiration of the term of the president in office, must take place within the narrow corridor of September 15, 2007, and October 15, 2007. Article 41(4) of the Constitution (continuing unchanged since the inception of the Constitution in 1973) is this:

“(4)Election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of the President in office:

Provided that, if the election cannot be held within the period aforesaid because the National Assembly is dissolved, it shall be held within thirty days of the general election to the Assembly.”

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Wardi Special: Ineligibility of the Incumbent

Understanding Pakistan Project Team September 23rd, 2007

Guest Post By: Salman Akram Raja

THE question of General Musharraf’s eligibility or otherwise for re-election as president in uniform will depend critically on the interpretation of Article 43 of the Constitution that is ultimately adopted by the Supreme Court. Article 43 states that “the president shall not hold any office of profit in the service of Pakistan.” It is settled law that candidates for election must be free from conditions that render them ineligible on the date of filing of nomination papers.

Can Article 43 be read as imposing a pre-election ineligibility condition or does it apply only after a person has been elected as president, requiring him to relinquish an office of profit held by him at the time of his election? In answering these questions, the overall scheme of the Constitution must be considered.

Article 41(2) states that a person shall not be qualified for election as president unless he is qualified to be elected as member of the National Assembly. Qualifications for election as member of the National Assembly are given in Article 62 while applicable disqualifications are listed in Article 63. For a person to be elected as member of the National Assembly he must fulfil the qualifications of Article 62 and be free of the disqualifications of Article 63.

On this basis it can be reasonably argued that a person may not be elected president unless he is both qualified in terms of Article 62 and not disqualified in terms of Article 63. Article 63(1)(d), if read with Article 41(2), disqualifies any person from being elected the president of the country if “he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder.”

Since Article 63(1)(d) would, if applicable to the president’s election, disqualify a person holding an office of profit from being a candidate the possibility of a person becoming president-elect while holding such an office would stand obviated.If this interpretation is accepted then pre-election candidature requirements stand entirely determined by Articles 62 and 63 while the role of Article 43 in the constitutional scheme is narrowed down to a specification of post-election restrictions applicable to the office of the president.

This, however, is not the interpretation accepted by the superior courts of Pakistan.

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Wardi-Special: Aspects of Re-Election

Understanding Pakistan Project Team September 23rd, 2007

Guest Post By: Syed Sharfuddin

THE Constitution of Pakistan lays down three clear requirements for the office of president. The first is that he will be elected. The second requirement is that he should hold office for a term of five years. The third requirement is that he should not be eligible for re-election after remaining president for more than two consecutive terms.

The first requirement (the source of the current president’s power), in the event of his non-election, derives from the democratic mandate he received from the people of Pakistan in the referendum of April 2002 in which he was the sole candidate. The president subsequently received a vote of confidence by the parliamentary electoral college through a special session of each House of parliament and each provincial assembly in January 2004. Neither of these actions could satisfy the election requirement stipulated in Article 41 of the Constitution until this article was given a soft landing by adding clauses (7), (8) and (9) through the Constitution (Seventeenth Amendment) act 2003. Thankfully, these clauses are valid only for the current term of the president’s office.

On the second requirement, there is a great deal of confusion over when it began and when it would expire. This is because General Musharraf has been in power for more than seven years and has worn several hats during this period, including that of president.

The establishment view is that the current term of president began on November 16, 2002, and is set to expire on November 15, 2007. The next president of Pakistan should be chosen by the assemblies some time between September 15 and October 15, 2007.

As former Supreme Court judge Wajihuddin Ahmad’s recent appraisal of the Constitution has shown, there are several intentional or residual anomalies in Chapter 1 of Part 3 of the Constitution. When the time comes to invoke these in the application of law, these are most likely to lend themselves to political interpretation instead of standing on their own legal ground.

Like the act pertaining to the president’s holding of another office, the current parliament can be called upon to give legal cover to a political interpretation of how the issue of the term of president and his re-election is to be presented to the nation. Given the record of past legislation, it is most unlikely that the parliament will deny the government what it wants.

So how can politics influence a debate which is purely a matter of law? The previous occupiers of this post have not left a healthy precedent to guide the nation in this regard.

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Complete Text: The Constitution (Seventeenth Amendment) Act, 2003.

Understanding Pakistan Project Team September 23rd, 2007

The Constitution (Seventeenth Amendment) Act, 2003.
ACT NO. III OF 2003

An Act further to amend the Constitution of  the Islamic Republic of Pakistan

WHEREAS it is expedient further to amend the Constitution of the Islamic Republic of Pakistan for the purposes hereinafter appearing ;

It is hereby enacted as follows :-

1. Short title and commencement.-(1) This Act may be called the Constitution (Seventeenth Amendment) Act, 2003.

(2) It shall come into force at once.

2. Amendment of Article 41 of the Constitution.-In the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, in Article 41,-

(1) in clause (7), in paragraph (b), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely :-

“Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2004.”; and

(2) after clause (7) amended as aforesaid, the following new clauses shall be added, namely :-

“(8) Without prejudice to the provisions of clause (7), any member or members of a House of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, individually or jointly, may, not later than thirty days from the commencement of the Constitution (Seventeenth Amendment) Act, 2003, move a resolution for vote of confidence for further affirmation of the President in office by majority of the members present and voting, by division or any other method as prescribed in the rules made by the Federal Government under clause (9), of the electoral college consisting of members of both Houses of Majlis-e-Shoora (Parliament) and the Provincial Assemblies, in a special session of each House of Majlis-e-Shoora (Parliament) and of each Provincial Assembly summoned for the purpose, and the vote of confidence having been passed, the President, notwithstanding anything contained in the Constitution or judgment of any court, shall be deemed to be elected to hold office for a term of five years under the Constitution, and the same shall not be called in question in any court or forum on any ground whatsoever.

(9) Notwithstanding anything contained in the Constitution or any other law for the time being in force, the proceedings for the vote of confidence referred to in clause (8) shall be regulated and conducted by the Chief Election Commissioner in accordance with such procedure and the votes shall be counted in such manner as may be prescribed by the rules framed by the Federal Government :

Provided that clauses (8) and (9) shall be valid only for the forthcoming vote of confidence for the current term of the President in office.”.

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The Constitutionality of Government - Sharif Family “Exile Agreement”

Understanding Pakistan Project Team August 23rd, 2007

By: Athar Osama

When I was writing this post this morning, the Supreme Court of Pakistan had not decided this case in the favor of Nawaz Sharif and his family’s “inalienable and unqualified” right to return to Pakistan. Then Understanding Pakistan’s long-planned switchover from its servers to the new (much faster one!) ran into some glitches and the site remained inaccessible for several hours. I wanted to comment upon and archive the original copy of Nawaz-Government deal. Now, with the decision already made much of the post has been made redundant but I will do so anyway to if only to archive this agreement on Understanding Pakistan. So, here is my post, as it stood in the morning (I shall return to it later to update it with new developments)

When Chief Justice Iftikhar Chaudhary was reinstated several weeks ago, I predicted–and prayed–that this would usher in a new era of judicial independence in Pakistan (here). Several ground breaking cases, I said, were likely to come before the Chaudhary Court. Among these cases was the the likely challenge to the exile of the Sharif family and the challenge to the constitutionality of General Musharraf’s dual appointments. The first of these challenges is now before the court.

While the legal battle has only started, one interesting thing that has recently come to light is the copy of the agreement between the Government and the Sharif family. The Government–for the first time in Pakistan’s history–has submitted something of value before the court and Dawn, to its credit, has made it publicly available for all of us to see and comment upon.

(Figure: Copy of the document signed by Nawaz Sharif on December 2, 2000. Source: Dawn.com, August 23, 2007)

The document titled “Confidentiality and Hold Harmless Agreement” shows that the Sharifs had also agreed not to engage in any business or political activities or any other activities of any nature against the interest of Pakistan, or relating to their incarceration, for a period of 10 years. They had also undertaken not to disclose to any party either the name of the ‘gentleman’ or of the country involved in their release from Pakistan and relocation, without their consent.

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Aza’adi Special-Pakistan at the Crossroads: To be, But What to be? That is the Question!

Athar Osama August 14th, 2007

By: Athar Osama

Today is the Sixtieth Anniversary of the Independence of Pakistan. Today, sixty years ago, Pakistan came into being as a state established for the Muslims of the subcontinent to fashion their lives according the requirements of their own religion. Sixty years have gone by and Pakistan has a come a long way from a weak and fragile–almost by design–state that was declared a geographical absurdity to one that has not only survived but, in some ways, thrived as well. In other ways, though, Pakistan continues to struggle to define itself till this day. It is a state where power belongs to a small elite group of individuals and not to the people. It is state where it cannot be said with surety and conviction that the govern-ors govern with the consent of the governed. It is a state where extreme poverty still exists for as many as half of the country’s population and a country that continues to score among the lowest in the world on key indicators of human development whether it is education, health, mortality or economic and political freedom–alongside countries of sub-Saharan Africa.

pk11-UPPPollonGovernanceSystems.JPGWhile we should all be thankful to Allah Almighty for giving us this piece of land, that we can call our home, and its people, our people, we should also not leave any stone unturned to make this piece of land the envy of the world. We are far from that aspiration and there is a long way to go. In fact, some of us may argue that we aren’t even moving in the right direction. Ironically, Pakistan is a country that has not yet come to terms with some of the most important questions that must define a country’s march into the future:

  • What is the purpose of its existence (e.g. Whether it was created as a state for the Muslims or an Islamic State?)
  • What should be the system of governance that would be put into practice (e.g. Democracy or Dictatorship), and
  • And how do we, Pakistanis, see Law and Constitution, whether the latter is a mere piece of paper to be followed, if convenient, and discarded, if necessary or defines “rules of the game” that must be adhered-to to bring order and stability to our lives.

No wonder then, that every now and then, we, Pakistanis, find our country at a crossroads. It is also no surprise then that on this–the 6oth Anniversary of Pakistan’s Independence–a lot of Pakistanis are asking themselves the same question. What was Pakistan created for and why does it exist? Understanding Pakistan has engaged with this debate before (here, here, and here) as we looked at the passage of the Objectives Resolution (here). We add two new perspectives to this debate in this Aza’adi Special Edition of Understanding Pakistan.

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Aza’adi Special: Jinnah’s Vision of Pakistan

Understanding Pakistan Project Team August 14th, 2007

By: Yasser Latif Hamdani

Today being the 60th anniversary of Pakistan’s independence is an opportunate moment to look at Quaid-e-Azam’s vision of Pakistan delivered 60 years ago, by Mr. Jinnah, Pakistan’s undisputed Leader, Governor General and elected President of the Constituent Assembly elaborated his vision for the future of Pakistan.

Jinnah’s vision is unambiguous.

  • The state would be completely impartial to religion of the individual.
    The state where every citizen would be equal and there would be no distinction between citizen on the basis of faith or caste or creed.

A lot of controverey has emerged about this speech. Any student of political science would tell you that is the classic exposition of a modern secular democratic state. However, the issue of whether this constitutes a “secular” state or an “Islamic” state is besides the point. A rose by any name is after all a rose.

Here is what Mr. Jinnah said on that fateful day. It is worth reading in the full:

“I know there are people who do not quite agree with the division of India and the partition of the Punjab and Bengal. Much has been said against it, but now that it has been accepted, it is the duty of every one of us to loyally abide by it and honourably act according to the agreement which is now final and binding on all. But you must remember, as I have said, that this mighty revolution that has taken place is unprecedented. One can quite understand the feeling the exists between the two communities wherever one community is in majority and the other is in minority. But the question is whether it was possible or practicable to act otherwise than has been done. A division had to take place. On both sides, in Hindustan and Pakistan, there are sections of people who may not agree with it, who may not like it, but in my judgment there was no other solution and I am sure future history will record its verdict in favour of it. And what is more it will be proved by actual experience as we go on that that was the only solution of India’s constitutional problem. Any idea of a United India could never have worked and in my judgment it would have led us to terrific disaster. May be that view is correct ; may be it is not; that remains to be seen. All the same, in this division it was impossible to avoid the question of minorities being in one Dominion or the other. Now that was unavoidable. There is no other solution. Now what shall we do? Now, if we want to make this great State of Pakistan happy and prosperous we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet you are bound to succeed. If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges and obligations, there will be no end to the progress you will make.”

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Aza’adi Special: Iqbal and Jinnah’s Idea of Pakistan as an Islamic State

Understanding Pakistan Project Team August 14th, 2007

By: Allama Ghulam Ahmed Parvez 

(This is an abridged-excerpted version of a larger piece published on this website before - here.)

pk2-IQAllamaIqbal5.jpgAccording Allama G. A. Pervez Allama Iqbal was the real intellectual force behind the notion of an Islamic state and Jinnah was merely an agent to implement Iqbal’s idea. In the above-cited piece, this how he explains: 

Iqbal’s Notion of an Islamic State

This state of affairs prevailed throughout the Muslim countries for centuries together where Mazhab was accepted as true Islam. We should, however, consider ourselves fortunate in as much as a voice was raised in our time and from our own country, to distinguish between Deen and Mazhab, and the Ummah was called upon to revive true Islam in the light of the Quran. This was the voice of Iqbal, the great thinker, and still greater scholar of the Quran. This, he said, was possible only if we had a piece of land in which a State was established purely on the lines indicated by the Quran, thereby wiping out completely the rule of man, in any form, be it capitalism or priestcraft. This scheme of his he pronounced in his Presidential Address of All-India Muslim League Session at Allahabad, in 1930. Such a State, he said:

“Would mean security and peace for India resulting from an internal balance of power, and for Islam an opportunity to rid itself of the stamp that Arabian Imperialism was forced to give it, to mobilise its law, its education, its culture, and to bring them into closer contact with its own original spirit and with the spirit of modern times.”  (Speeches and statements of Iqbal–p.15)

Two years later, while addressing the nation at the Annual Session of the All-India Muslim Conference at Lahore, on 21-3-1932, he said:

“The possibilities of the faith you represent are not yet exhausted. It can still create a new world where the social rank of man is not determined by his caste or colour, or the amount of the dividend he earns, but by the kind of life he lives; where Capital cannot be allowed to accumulate so as to dominate the real producer of wealth. This superb ideal of your faith, however, needs emancipation from the medieval fancies of theologians and legists. Spiritually, we are living in a prison-house of thoughts and emotions which, during the course of centuries we have woven round ourselves. And be it further said to the same of us– men of older generation– that we have failed to equip the younger generation for the economic, political and even religious crises that the present age is likely to bring. The whole community needs a complete overhauling of its mentality in order that it may again become capable of feeling the urge of fresh desires and ideals.” (Ibid p.55)

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