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Why a new Constitution?

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    Why a new Constitution?

    It is only 27 years since Pakistan got its present suspended constitution yet already there are calls from many quarters for a brand new constitution or at least radical changes to the existing one? The Islamic parties, the nationalists, and minorities all have made such calls but is that feasible in the present political climate in Pakistan ?

    I think a constitutional convention of all the parties, minorities, the military and other interests shoul be formed to agree changes to the existing constitution rather than draft a new one? Pakistan will eventually return to democratic government and it can only function under a stable constitutional set up. The 1973 constitution is a detailed document agreed by all the major political parties of the day and drafting a new constitution could become an administrative and political nightmare.

    What changes would you reccomend to the existing constitution?


    Why a new Constitution?

    by Khaled Ahmed

    There are many voices in Pakistan who object to the contents of its Constitution. They belong to all kinds of aggregates of interests. The clergy is dissatisfied with it because it is not Islamic enough. The human rights groups are unhappy with its anti-minorities and anti-women articles. The minorities don't want the separate electorate it clearly makes provision for. The smaller provinces object to provisions that curtail their rights. The Constitution places the shariah above itself, which means that the Federal Shariat Court and Council for Islamic Ideology can continue to challenge it. If you look at the amendments made to it, most will be seen to take away the rights originally given. It also indemnifies orders passed by General Zia and carries 69 changes accepted by a non-party based National Assembly when it succumbed to the 8th Amendment under duress.

    Our respected journalist Mir Jamilur Rehman has made an appraisal of the present Constitution in his article Why a New Constitution? ( The News 13 October 2000) after a meeting of the leaders of the MQM and PONEM held in London on 17 September 2000 demanded a 'liberal and democratic' constitution in its place. The rebel leaders, representing the third largest party at the polls (MQM) and a number of smaller parties, have stated that 1) the 1973 Constitution had been 'repeatedly tarnished and crushed under boots'; 2) that the civil and military autocrats had made too many changes in it without the consent of the people; 3) that it could not provide fundamental rights and security to the people; 4) that it could not even protect itself; 5) that it had failed to resolve the problems of the people. In his assessment, Mr Rehman comes to the conclusion that the Constitution is in fact okay and doesn't need to be replaced by a new Constitution. Renowned lawyer Mr S. M. Zafar tells him that trying to change or replace it would open 'a new Pandora's Box'. Both are perhaps right but the Constitution continues to arouse discontent.

    The clerical point of view:The clergy has not accepted the post-Zia Constitution without reservations. Objection is made to the continuance of 'many laws'. There is objection also to the character of the judiciary. Although qazi courts have been established in some parts of the state, the clergy would like to have a clear constitutional provision about them. The judges have compensated by keeping beards and referring less and less to Western case law and more to fiqh, but it is not enough. The Muslim League tried to meet the clerical objections by drafting the 15th amendment which its opponents interpreted as an attempt at acquisition of supra-constitutional powers. Significantly, the draft amendment was supported by the clergy and would have passed in the beginning of 2000 had the government not fallen in October 1999. The clergy's first assault on the 1973 Constitution came from the Senate which Mr Rehman thinks was correctly expanded by the 8th Amendment. There is no cavil with that, but the 'cleric' as 'expert' was not properly defined and some cleric-senators were not formally trained in any profession, including religion. The Talibanised Islam advocated by the clergy of Malakand is completely opposed to the present constitution.

    Nationalism, in its march towards fascism, tends to outstrip the Constitution which needs to be changed to keep up with the passions aroused by it. The shariah nationalism of Pakistan was assuaged to some extent by General Zia, but hunger for more remains till another 'redeemer' like him comes along. The Constitution is not clear on the status of the non-Muslim. Even at the time of the formulation of the Objectives Resolution this issue had remained unresolved. Historian Shariful Mujahid tells us that the Hindu members of the Constituent Assembly did consult the ulema in Lahore only to find that non-Muslims could only be zimmis. The issue of apostasy is also unresolved in the Constitution and the Penal Code. The ulema want death for apostasy (NB: not blasphemy, which is already there in the Penal Code) and want it stated clearly in the Constitution. The Deobandi section of the ulema, overtly or covertly, want the Constitution to state clearly that the Shia are non-Muslims, just as it states with regard to the Qadianis in an amendment.

    The human rights point of view:The human rights community is unhappy with the supra-constitutional status of the Federal Shariat Court which can rescind any law it deems violative of what its current member judges think is the shariah. Since the Shariat Appellate Bench of the Supreme Court comprises conservative judges, there is little chance that they would listen to any rational argument. Inductions into the higher judiciary have not been honest in the past, thus further lessening the moral authority of the judges who hand down shariah verdicts. A PPP parliament amended the Constitution to declare the Qadianis non-Muslims, which violates an Article relating to freedom of religion in the Universal Declaration of Human Rights to which Pakistan is a signatory. Under this Amendment, General Zia issued further disabling orders against the Qadianis which were indemnified by the 8th Amendment. Another amendment by General Zia through his infamous 8th Amendment will not be to the liking of Mir Jamilur Rehman: the inclusion of the text of the Objectives Resolution (already in the Preamble) in the Constitution 'after' deleting the word 'freely' from a sentence that guaranteed freedom of religious practice to non-Muslims.

    The Constitution is a bit behind on the question of civilian litigation involving army personnel. With judicial practice, the article that exempts army personnel from the jurisdiction of the civilian judiciary has become a factor of constitutional obsolescence and must be made more explicit. For instance, the ISI was exempted by a judge of the Lahore High Court in the Najam Sethi case because 'officers working in it were serving army officers'. The case against the government for kidnapping Najam Sethi in 1999 went up to the Supreme Court but was withdrawn before the matter could be decided. In Brigadier Tirmazi's memoirs, the ISI routinely kidnaps citizens for investigation and questioning during which torture is also used. Many anti-human rights aspects of the Constitution relate to the general lack of reinterpretive intellect in the Muslim World, and are not specific to Pakistan.

    The smaller provinces' point of view:Another aspect of the Constitution which is subject to dangerous obsolescence is the one which describes the provinces. MQM and PONEM objections are indirectly levelled at the province of Punjab which contains over 60 percent of the population of the country. Almost all intellectuals, Punjabi or non-Punjabi, are agreed that Punjab should be sub-divided into at least three to dilute the straight two-thirds majority of the Punjabis in the National Assembly. Anyone who has heard the Senate question hour (where provinces have equal representation) on the PTV will realise that the smaller provinces link their grievances to the preponderance of the Punjabis in the federation. In India, the Uttar Pradesh province contains more population than Pakistan but is only 12 percent of India's total population. Inside Punjab, Seraiki and Pothohari provinces can be carved out on the basis of administrative and national factors. Most MPAs who represent South Punjab and the Plateau at the Punjab Assembly live in Lahore, with the result that their own areas remain under-developed.

    Once again, the putatively Islamic principle of not treating regional identities separately is responsible for the anger and frustration of the smaller provinces. Pakistan did the most backward thing when it sought to destroy regional identities under One Unit and 'separated' the religious identities by rescinding joint electorates. The shariah has been interpreted under the Constitution as being in favour of abolishing the quota system in state employment. If this were to happen, the smaller provinces will be forced to opt out of a federation which employs only Punjabis albeit on merit. The periodic 'recommendations' of the Council of Islamic Ideology under the Constitution spread fear and abhorrence in the country, especially among regional identities like Sindhis and the Baloch whose will is increasingly less involved in the determination of Pakistan's internal and external policies.

    The minorities' point of view:The Constitution will clearly have to be amended if joint electorates are to be restored as per manifestos of parties like the PPP and Insaf (Imran Khan). There is an ambiguity on the subject in the Constitution which simply testifies to the arrogance and illiteracy of those who amended it under the spur of shariah nationalism. The minorities don't want to live under separate electorates because they are not properly represented by their leaders elected on fixed seats. Even by extrapolation, Jinnah's demand for separate electorates does not justify the separate electorates of General Zia's constitution. The only way the non-Muslims can be served well under separate electorates is to get them to live in special enclaves. This trend has taken root and there are many non-Muslims enclaves now in Pakistan.


    first of all, because its british based, i oppose our constitution...second,,there arent many islamic laws to females and religious coverings..and all...

    Yesterday is history,
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      Is Islam really alive in Pakistan? Islam is a religion of Peace and Brotherhood, now analyse yourself whether these thing are in existent in Pakistan?


        Originally posted by Khan Bahader:
        Is Islam really alive in Pakistan? Islam is a religion of Peace and Brotherhood, now analyse yourself whether these thing are in existent in Pakistan?
        not really.....sad but true


          x-communist the 1973 constitution actually replaced the British-era constitution and was thf first constitution agreed by all the major political parties in Pakistan including the Jaamat-e-Islami.

          I agree that the peace and tolerance preached in Islam is not in action in many places in our country but my point here is not necassrily a religious one. It is up to our religious leaders to concentrate more on preaching tolerance and peace for all in Pakistan and less on petty political quarrels.

          My point is whether we should have a brand new constitution only 27 years after the last one was agreed or radically change the existing one?