Constitutional Amendments
A Plan for Martial Law in the Garb of Democracy

The cat of General Pervez Musharraf’s constitutional amendments, which had been in the NRB’s (National Reconstruction Bureau) bag for two years and created quite a fuss about ‘what the government is up to?’ through the leaks to media and the statements of those who are at the helms of the government, has at last come out of the bag on June 26, 2002. But, the dawn of the new unfolding era reveals that the thing that has come out of the bag is not a cat, it is rather a demon that would become even more monstrous if not checked and controlled forthwith. The danger is before the eyes, and there is no other way than to meet it and to prepare for meeting it squarely.

We term these amendments as General Pervez Musharraf’s scheme, and not an invention of General Tanvir or other advisors, though they might have been a means to make them public. The General has take pains to defend them himself and what has at last come out is but a fuller and organized form of what he has been saying from time to time for the last about two years. He should openly accept the responsibility for this, and the nation, too, should understand as to what the Generals thinks and what his plans are. Moreover, there should be no confusion or doubts about his remaining in power and its features. What the intellectuals of the NRB and the General’s ministers are saying is but the echo of the General’s own voice.

The solitary worthwhile aspect of the whole NRB document is the opportunity for debate and discussion on it, which is valuable in spite of its being constrained and controlled. The electronic media is dominated by the government and its like-minded, public opinion is being distorted and there are almost no opportunities for expression of opinion that differs from that of the government, what to talk of equal opportunities. Yet, in spite of the media jugglery in government’s aegis, whatsoever is available as opportunity for discussion is like a silver lining on the otherwise dark horizon. This thin light, however, clearly shows the public mood and anxiety and concern of those who have political insight.

It is by now proven that all the important political parties and leaders of all schools of thought have opposed these proposals. Almost 90 per cent of analyses in newspapers (editorials, articles and columns) have opposed them. Even those who have partially supported them have done so only apologetically and with a sense of embarrassment. Also, all the bar councils have offered strong criticism to them. Along with highlighting the few positive or worth-pondering proposals, all the quarters have held the real objectives and drastic changes as absolutely unacceptable. This really reflects the nation’s sentiments and aspirations, but the government’s attitude is reflective of a negative approach, indifference, obstinacy and stubbornness. This engenders great dangers for the future of the country and the nation.

This situation necessitates a completely dispassionate analysis of the real issues so as to make the situation clear to General Pervez Musharraf and his colleagues, and so that the nation knows about the real facts, implications of the proposed amendments and their constitutional, legal, political and moral value without any hindrance or obfuscation. This would enable the nation to surmount the coming problems. We are sure that truth would ultimately prevail and that the force of reason would wash away all schemes of personal aggrandizement, group interests and other ill-founded supports.

The government has published a 58-page document for the establishment of ‘sustainable federal democracy’. It proposed 73 amendments in 28 articles of the Constitution. It also tries to furnish some reason and rationale for this. We have thoroughly studied the document and with an open heart have pondered over what General Pervez Musharraf and his colleagues have said in the defense of these proposals. We have also taken into consideration the criticism on them during the past three weeks, without any prejudice or bias. The conclusion we have reached is that these proposals are the most dangerous and have more far-reaching implications than all the proposals that have been made to date about the change in the system of government in the entire history of Pakistan. These proposals are more hazardous, imbalanced and unreal than the excesses of General Ayub and General Zia in the Constitution, and are just a means for an individual’s rule and getting the army involved in the politics in such a way that might prove catastrophic both for the army and the country. Their detailed examination is, therefore, strongly needed.

We do not deny that some proposals and dimensions of analysis of issues are such that merit deliberation at a right forum, but, overall, these amendments would result in distorting the face of the Constitution and rendering the political system of the country into such a mixture that would neither be democratic, nor federal or the one that could guarantee some durable system. These negate the three avowed objectives: sustainable, federal and democratic. Though it demands detailed analysis of each and every proposal, but the lack of both time and space does not afford this. We would, therefore, focus on just six issues of central importance. Then, we would invite the government and the nation to decide the strategy to face the situation in the interests of the country.

The Authority for Amendment in the Constitution

The first and the most important question is: whether General Pervez Musharraf is authorized to bring such amendments in the Constitution? A step that is taken without legal and moral authority can never be popular and credible. It is the legal sanction that can become the basis for mass acceptance and durability of any step. And, the system that is devoid of legal and moral sanction proves even more feeble than the cobweb.

General Pervez Musharraf and the NRB have based the General’s authority to amend the Constitution in the Supreme Court’s judgment of May 12, 2000. This necessitates that it should be discussed first of all.

Constitution has the status of the fundamental law of a country, and the most important feature of the Constitution of 1973 is that it is founded on national consensus. No doubt that it is a human effort and changes in it are not only possible but might be necessary at certain times. Yet, only that way of doing this could be acceptable as has been laid down in the Constitution itself. No other way could be legitimate. It is worth-reminding that seven amendments in it were made in the very Bhutto era in which it had been adopted, but only that one (about the Qadiani issue) could stay that had the consensus. The rest of the amendments ended with the end of the Bhutto era. The case of amendments introduced by General Zia is not much different, either. There was no consensus on them, too; but to get the unanimous approval of the Majlis-e-Shura of 1985, he introduced about a dozen important amendments and tried to create a pseudo-consensus.

The 1973 Constitution has three foundations: Islam, federalism, and parliamentary democracy that is all about supremacy of the Parliament, independence of the Judiciary, guarantee of human rights, and the Executive’s answerability before the Parliament. The Constitution has also laid down a clear strategy for amendment in it. Neither the President nor the Supreme Court is authorized to amend the Constitution. In the same way, the Chief of the Army Staff cannot change the Constitution, whose product he himself is. Brining amendment is such a critical issue that even one of the two houses of the Parliament cannot do it alone; the Constitution prescribes that a two-thirds majority of both the houses is necessary for amending the Constitution. This means that an amendment cannot be effective if either of the houses does not accede it. There is no room for joint session, either. In this background, it is necessary to know the reality of the Supreme Court’s May 2000 judgment and what its legitimate and legal intention might be.

Before deliberating on the judgment, it is necessary to keep certain facts in view. In the Nusrat Bhutto case, the Supreme Court had allowed General Zia-ul-Haq to bring amendment in the Constitution but when he imposed the Provisional Constitutional Order (PCO), the then Chief Justice Anwar-ul-Haq who was the author of the earlier decision declared it as going beyond the powers conferred in the Nusrat Bhutto case and deviation from the decision of the Court, and resigned. Deriving a lesson from this, the Supreme Court opted for giving limited and conditional powers in its May 2000 judgment. This is why the situation today is entirely different from the one that was used as an excuse in the past.

Another point that should remain in focus is that the Supreme Courts of Pakistan and India have taken two very important decisions on the issue of amendment in the Constitution. When Indira Gandhi imposed emergency in India, the Supreme Court maintained that even the Parliament cannot bring whimsical changes in the Constitution. Constitution making and amending it are two different things. Constitution-making can be undertaken only by the Constituent Assembly whom the people have given a mandate for that purpose. The Parliament that is formed under an existing Constitution cannot change the basic structure of the Constitution. It can, however, bring amendment while remaining within this structure. This is what amendment in Constitution means, and this is how ‘amendment’ has clearly been defined. This was a basic decision.

A similar decision was taken by the Supreme Court of Pakistan, as well, in the Achakzai case. It decided once and for all that even the Assembly does not have the powers to change the basic structure of the Constitution, what to think of some individual doing this. The Supreme Court, too, cannot amend the Constitution; it can only take a judicial review of some constitutional amendment or law. Its jurisdiction is interpretation of the Constitution, not its amendment. In this background, the Supreme Court has no authority to give someone the right to introduce drastic change in the Constitution.

In the light of this discussion, it is easy to understand what the Supreme Court had said in its May 2000 judgment:

That Gen. Pervez Musharraf…having validly assumed power by means of an extra-constitutional step, in the interests of the state and for the welfare of the people, is entitled to perform all such acts and promulgate all such legislative measures as enumerated hereafter, namely:

1. All acts or legislative measures that are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
2. All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.

The Court made it clear that:

That Constitutional Amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a solution for attainment of his declared objectives and further that the power too amend the Constitution by virtue of clause (6), sub-clause (I)(a) ibid is controlled by the sub-clauses (1)(c) and (d) in the same clause.

That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form of governments blended with Islamic provisions.

In the light of the Constitution and the Courts decisions about the Constitution, the interpretation of this judgment can only be that the Supreme Court gave a respite of three years to the Chief Executive to realize his declared objectives and declared the holding of new elections necessary by Oct. 12, 2002.

It should be noted that the Chief Executive’s 7-point agenda for which the Court gave him the 3-year respite and powers for constitutional amendment comprised:

1. Rebuilding national confidence and morale
2. Strengthening the federation, remove inter-provincial disharmony and restore national cohesion.
3. Revival of the economy and restore investor confidence.
4. Ensuring law and order and disperse speedy justice.
5. Depoliticization of state institutions.
6. Devolution of power to the grass-root level.
7. Ensuring swift and across the board accountability.

An objective review of the Court’s decision and the General’s agenda clearly shows that the Court had given the powers for legislation, including the constitutional amendment, for three years for the realization of this 7-point agenda; and not for establishing a new constitutional structure for the future. Overlooking what happened to these seven points (see Tarjuman al-Quran of June 2002 for a fuller review), we should try to find out as to which of them are about Presidential powers, Prime Minister’s appointment or dismissal, dissolution of the Assembly, appointment of Governors, and establishment of the National Security Council. These were not the issues that were under the Court’s consideration; under consideration were only those seven points on which General Pervez Musharraf wanted to show some performance after assuming power. The Supreme Court held that he could take measures and go for legislation as needed for the realization of this agenda. The Court made it imperative for him that his every step should be within the limits of the Constitution, and that the procedure for amending the Constitution as is laid down in it should be respected and observed. However, constitutional amendment could be introduced for the ‘removal of difficulty’, which is a well-known legal concept. The same three years was the ‘period of action’ for this, too. Any system beyond this period is out of the purview of the Court’s decision.

During this 3-year tenure, the General took many right or wrong constitutional measures, including the issue of Presidency (which he himself created quite unnecessarily). The powers given by the Supreme Court for amendment in the Constitution are for this period and for its issues, not beyond that. It does not empower him to give a new political system to the country. It is neither a part of his declared agenda, nor does the Court’s decision make any mention of it; nor can it be declared his responsibility by any sort of reasoning or argument. The amendments he is now bent upon introducing in the Constitution have nothing to do with the declared agenda, they would only be a means to trample upon all the limitations and restrictions that the Court had imposed quite unambiguously – i.e. upholding of parliamentary system and the principle of federalism. Taking refuge in the Supreme Court’s judgment for the kind of the proposed amendments is an audacity that is akin to ‘devil quoting scriptures’.

Amendment in the Constitution can take place only by adhering to the procedure laid down in it. There is only one prudent way for the General: that after the elections he presents the issue of constitutional amendments before the newly formed Parliament for discussion, and that both the houses of the Parliament consider them on merit with open debate and discussion. No individual has the right to go on rampaging the Constitution, or to distort it by imposing his own whimsically-motivated structure on the consensual Constitution of the nation. It is unfortunate that General Pervez Musharraf did not learn lesson from the similar attempts of his predecessor military rulers and self-serving lot. General Ayub’s 1962 Constitution was a one-man-show that ended with the demise of his rule. Rather, he himself gave it the last death blow, when he handed over power to the then army chief General Yahya Khan instead of the speaker as was stipulated in this Constitution. The Constitution that General Yayha gave ended with the end of his rule. General Zia-ul-Haq had to strike a compromise with the Assembly and the Senate for getting approval for his amendments; and yet they could not enjoy the sanctity and respect that is Constitution’s due. General Pervez Musharraf is trying to tread the same faulty path. He is trying to play the role of a ‘commando president’, but his fate cannot be different from others.

Moral Dimension:

The second basic issue is about the personal and moral standing of the General. He should not be forgetful about his position: however hard he may try to make people believe that ‘he is the same General Pervez as he was in 1999’, they are not going to buy this view for his standing has been badly damaged in these three years. Now the nation sees him in the light of his three-year record. None of his seven points bore fruit. The way and extent to which national honor, nay, the country’s very independence and sovereignty have been flattened in this period is shameful and appalling. The way we became a tool for America’s global hegemonist designs, and the way America used us and evolved a whole framework for strategic partnership with India have exposed the country to new internal and external threats. Friends have become foes, and foes are getting on our nerves. We are partaking the hatred that was America’s due. If the recent analysis of the American daily Wall Street Journal is to be believed, then the usefulness of the General himself for America would last till October 2002. Canadian daily The Globe and Mail had predicted even as early as in December 2001 that:

But with the battle in final stages, General Musharraf has ended up at a disadvantage on the political chessboard. (Paul Knox, Dec. 10, 2001)

It had also quoted the view of commentators:

We are looking at a picture of fundamental realignment at the international level, where the U.S., India, Israel and Russia seem to be coming together on a variety of issue and Pakistan is left out in the cold.

The review of situation in Pakistan in the American journal Newsweek, sums up the General’s performance in the three years:

Many Pakistani men joined the Army to defend their homeland from India. They are ready and willing to fight and die, if necessary. The problem is, for many of these men, they are fighting the wrong enemy. (Newsweek, July 15, 2002, p 18)

The International Herald Tribune has included in its issue of July 6 the editorial of The New York Times. It, on the one hand, confesses that General Pervez Musharraf is still needed by America in the so-called ‘war on terrorism’ and that he is useful for America also because he a supporter of ‘Western and secular governance system’, but, on the other hand, it has targeted his role with respect to the Kashmir issue for criticism. It is worried on account of the ground reality that he had weakened his position by committing the folly of referendum, and that his popular acceptance would receive setback because of the amendments he is bent upon bringing in the Constitution to control the democratic institutions.

It is a fact that General Pervez Musharraf’s position is becoming more and more precarious with the passage of each day both within the country and abroad. Today, he does not commands respect in any quarter; the situation is so worse that even Pakistan is not being dealt with dignity and honorable manner. The latest example of it is the reprimand of the US Deputy Secretary of State Mr. Richard Armitage, which he delivered to the General and his people for not fulfilling the promises of stopping the ‘cross-border infiltration’. While nobody is chastising India for its state terrorism, the pressure is on Pakistan for giving up all sort of help to Kashmiri resistance movement.

A comparison of the current situation with the one of some 10 years earlier, it shows all the difference. The memoirs that a former Indian Cabinet Secretary Mr. V. Balachandran has published in the Asian Age of July 10, 2002, are worth reading and pondering. Writing about his complaint against Pakistan for the same ‘cross-border infiltration’ to the then CIA Director Mr. Robert Gates in his office in Washington on Dec. 14, 1992, he records Gates’ reaction.

We had expected him to be concerned over Pakistan sponsored terrorism; he has been closely associated with the sub-continent’s developments. But we were in for a surprise when he administered a pedagogic admonition to our leader: "Mr. Secretary, we have taken due note of your presentations. But we are hearing similar complaints against you from Pakistan and we would like not to have such complaints." (The Asia Age, London, 10^th July, 2002, p.11).

This was the American attitude some 10 years ago, and what is our honor and standing today in spite of that the General did to gain America’s pleasure? It is possible that General Pervez might have been the same as that of 1999, but the lot of Pakistan has not been the same as it was earlier!

No individual has the authority to amend the Constitution. While we don’t tire in claiming to follow Quaid-i-Azam, we forget that the man under whose leadership the Muslim nation of Pak-India subcontinent got Pakistan and thought of him not ‘king without crown’ but as ‘crowned leader’ had said, not once but repeatedly, that no individual has the authority to make Constitution. It is the prerogative of the Constituent Assembly, and only it can do it. (His address to the Sibbi Darbar, Feb. 14, 1948; address to the people of the United States, Feb, 1948. – Jinnah: Speeches and Statements, 1947-48, Oxford University Press, pp 108, 112, 125)

The question is: the powers that Quaid-i-Azam did not deem fit for himself, on what constitutional, legal, political, and moral grounds is General Pervez Musharraf seeking them for himself? Then, he is not just seeking those powers, he wants to mould the Constitution in such a way that it becomes a tool for enhancing his own position.

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This is an English rendering of the editorial of monthly Tarjuman al-Quran of August 2002, written by Professor Khurshid Ahmad.