sharply restricted by many of those amendments.
Constitutional development in Pakistan
129
Initially, among the earlier amendments, they limited the guarantees for
civil rights and independent courts, but also sharply heightened the institutional
and political power of the prime minister. 99 Sadly, this has been a tendency until today – most politicians are unable to share power and devise ever more
devious methods of concentrating power. Consequently, this has left little
respect for the law. Sarmad Ali persuasively argues that this sad state of affairs
began with Zulfiqar Bhutto.100 Using amendments, first to secure his own power base and then to placate rival ideologies, he was constantly walking a tight-rope between secular and traditionalist forces. For the traditionalists, he
restricted the rights of a religious minority group called the Ahmadiyya and
passed the Second Amendment, which declares them heretics.101 Contrarily, to conciliate secularist forces, he began the construction, in Karachi, of the
biggest casino in Asia, with the assistance of a local land developer. 102 The building stands unfinished to this day – having finally become a shopping
centre – as a monument to the failure of his government to maintain a
coherent ideology with respect to the role of Islam and the state.
People, civic society actors and non-governmental organizations were
aware of the infringements on their rights, and they acted by filing numerous
constitutional cases to challenge the validity of the amendments.103 As a matter of fact, six amendments were introduced between 8 May 1974 and 4 January
1977, and a seventh on 16 May 1977. 104 Yet it was not until the Seventh Amendment had been implemented that the courts took a stand, since it
restricted their ability to hear cases of military abuse during times of ‘civil
unrest’.105 The Arbey case challenged the legality of the Seventh Amendment.106
In its verdict, the Arbey case recognized that any interpretation of the law must
abide by the Objectives Resolution and that this rule could not be altered. 107 In effect, the courts had decided that the government had gone too far and identified
Islam, federalism and democracy as the essential features of the 1973 Constitu-
tion. Thereafter, it concluded that if these features did not survive on account of
an amendment, then such an amendment would be ultra vires.108 Yet, even with the courts cautioning Bhutto, he had no respect for constitutionalism. In
May 1977, when elections were held in Pakistan, the first since 1970, Bhutto’s
party, the People’s Party of Pakistan (PPP), fraudulently won. To everyone’s
disbelief, the polls declared the PPP victorious, immediately setting off
protests and claims of widespread rigging. Of course, evidence of fraud was
Downloaded by [University of Connecticut] at 18:26 09 January 2017
staggering. ‘All political parties in Pakistan joined together to form one party
against the PPP. This nine-party alliance was undeniably going to win’. 109
Hence, when it did not, grand protests astounded the country, and then on 5 July
1977 the military, led by General Zia-ul-Haq, took over.
This, though, led to a major problem, since the 1973 Constitution con-
sidered usurpation an act of treason. In his defence, General Zia said that the
constitution was in abeyance until fair elections could be held. The Supreme
Court accepted that interpretation when they heard the constitutional case in
the Nusrat Bhutto case.110 Nusrat Bhutto, the wife of Zulfiqar Ali Bhutto, filed a petition against General Zia and wanted serious sanctions to be taken
130
Islam and Pakistan’s Political Culture
against him for treason. The court looked at the doctrine of necessity again
and, thereby, justified the military takeover by General Zia via implied mandate.
Then, once he had the approval of the judicial authorities, General Zia
arrested Bhutto and had his bail application denied on account of accusations
of murder. He was tried in a military tribunal, and the presiding judges ruled
that the murder of the two politicians was the work of the Federal Security
Force and that Bhutto had commanded the act. Bhutto faced a military court
and was hanged. 111
If Pakistan had been fortunate, with the hanging of Zulfiqar Bhutto con-
stitutional amendments would have ended. But they only increased in fervour
and intensity. The Chief of Army staff, General Muhammad Zia-ul-Haq,
proclaimed Martial Law on 5 July 1977. His martial rule lasted until 1985
and he continued to rule as president from 1985 to 1988. During this time, the
1973 Constitution remained supreme, excluding certain parts held in abeyance
out of necessity. The Supreme Court of Pakistan recognized the right of the Chief
Martial Law Administrator – General Zia – to perform all such acts or legisla-
tive measures, which included the power to amend the Constitution. By this
verdict, General Zia was able to make a series of amendments, which changed
the whole complexion of the 1973 Constitution. Khan, commenting on these
amendments, says General Zia ‘could amend and alter the constitution at will
and he kept making amendments to the constitution every now and then. In some
cases, such amendments were made through the chief martial law administrator’s
orders and others through presidential orders. It was after all his sweet will as
to when, how, and in what manner, he made such amendments’.112
General Zia, a traditionalist, was a proponent of Islam and vigorously
appealed to religious sensibilities. His approach for aggressive Islamization
began in 1979 with the promulgation of the ‘Hudood’ laws and continued
until February 1985.113 Some of the key amendments General Zia initiated in his drive for Pakistan’s Islamization were top-heavy religious enforcement,
and included empowering the Supreme Courts to declare any law un-Islamic
if it was repugnant to the Islamic injunctions. In addition, Hudood laws were
introduced on 9 February 1979 that prescribed ‘hadd’ punishments covering
three areas: (1) alcohol: the consumption, manufacture, import, export,
transport, bottling, selling or serving of any intoxicant; (2) cases of theft or
robbery; and, (3) the offence of ‘adultery’. 114 These laws generated considerable Downloaded by [University of Connecticut] at 18:26 09 January 2017
controversy among the secularists, who saw them as limiting their personal
freedoms. Proponents, alternatively, argue that these laws are derivative of
Islamic injunctions, and, resultantly, are permanent. Undoubtedly, these laws
have been abused to embarrass political opponents, or even by police for
blackmail. Recently, this ‘hadd’ law was used to falsely accuse an innocent
Pakistani Christian of desecration of the Qur’an. 115 However, the courts threw out that case, and have generally been cautious in the application of
these laws and ‘hadd’ punishments. Actually, despite more than twenty years
of being introduced in the constitution, ‘no one has been stoned to death and
no one’s hand or foot has been amputated’.116
Constitutional development in Pakistan
131
Notwithstanding his intent, these amendments were enforcing respect for
Islam, which cannot be coerced. Rather, law should prohibit hate speech,
includin
g disregard of religious sensibilities. This protects the people’s sensitiv-
ities concerning their faith. Instead, a sloppy and poorly thought-out ruling has
become the bane of Pakistan, in direct contradiction of the Qur’anic restriction
on compulsion in matters of faith. These constitutional amendments were
motivated by a coercive traditionalist approach for managing dissent, which
is simply browbeating. Following these amendments, in 1985 general elections
were held on a non-party basis. That required the consequent National
Assembly to make another significant revision – the Eighth Amendment to
the 1973 Constitution.
In 1985, Pakistan returned to a pseudo-democratic state, with General Zia
discarding his military uniform to become President. To maintain authority over
the civilian government, he passed the Eighth Amendment.117 This fundamentally altered the basic structure and essential features of the 1973 Constitution,
bringing it in line with the military’s preferences. ‘It created a strong executive, a weak legislature, a docile judiciary, and it diminished provincial autonomy’.118 Also, this amendment prevented any laws enacted during the eight years of martial law from being challenged. In addition, the head of the state
was no longer the Prime Minister, but the President, who had all the powers
of dissolution. In effect, General Zia’s constitutional tampering was based on
a praetorian tendency to concentrate power and he could now dissolve parlia-
ment at will. Khan contends that ‘the balance that Zia struck between the
powers of the prime minister and the president began to tell immediately on
the new political system. Popular will had been flouted and national politics
had changed from parliamentary democracy to military dictatorship’.119
Maluka adds that General Zia ‘deliberately contrived constitutional devices
in which he, as life-long president of the country, was above the parameters of
the constitution and unaccountable to the people’.120 All in all, this reflects the typical traditionalist approach to the ‘foundational’ aspects of Islamic
political culture – distrust of the average citizen and, therefore, a tendency to
limit representative government. Comparatively, though, while Ayub Khan,
Zulfiqar Bhutto and General Zia were ideologically poles apart, their dis-
regard for the sanctity of the Constitution and the will of the people were
strikingly similar. Then, suddenly, on 17 August 1988, President Zia was
Downloaded by [University of Connecticut] at 18:26 09 January 2017
killed, suspiciously, in a plane crash.
With the death of President Zia, Benazir Bhutto would become Pakistan’s
first female Prime Minister in 1988. However, she and the Pakistan People’s
Party were unable to secure an ‘absolute majority in parliament, and therefore
did not do any harm to the constitution of 1973’. 121 Even though the constitution was spared from amendments during her tenure, that situation would not
last. During the second Nawaz Sharif government, currently in his third stint as
Prime Minister, the Thirteenth Amendment was passed on 31 March 1997.122
This amendment took away the president’s power to dissolve assemblies, and
gave it to the prime minister. Subsequently, the Fourteenth Amendment was
132
Islam and Pakistan’s Political Culture
passed, which banned members of parliament from crossing party lines.123
Constitutional manipulation was commonplace and would continue unabated
until October 1997, when the Supreme Court heard a petition on the validity of
the Fourteenth Amendment.124 At that point, the then Prime Minister Nawaz Sharif claimed the judiciary was undermining parliamentary sovereignty.
Responding, the judiciary charged Prime Minister Nawaz Sharif with contempt.
Then, in one of the darkest days in Pakistan’s legal history, unruly political
party members from the PML-N stormed the Supreme Court ransacking the
sanctity of that office. Eventually, in a clear indication of suppression of
judicial independence, both the Chief Justice of the Supreme Court and the
President resigned. The situation in Pakistan concerning respect for the rule
of law kept moving from bad to worse.
Then the Fifteenth Amendment, associated with the ‘Shari’ah Bill’, approved
on 28 August 1998, declared the Holy Quran and Sunnah as guiding principles
for running government. However, that implication was already there in various
forms in the constitution. Critics argue that Nawaz Sharif did this in order to
appear a religious reviver. Sarmad surmises that under the banner of an Islamic
system, Nawaz Sharif tried to get absolute powers. 125 This amendment was passed by the National Assembly but could not be passed in the Senate and
has now become effectively dead. And, as if these ongoing constitutional
crises were not enough, Pakistan was thrust into another disaster. The debacle
of Kargil, which led to a brief war between nuclear rivals India and Pakistan,
altered the political scenario once again. After the fallout of Kargil, General
Musharraf, in 2001, organized a coup against Nawaz Sharif and sent him
packing to Saudi Arabia. And, he, too, was no different to his predecessors in
disregarding the sanctity of the Constitution. In fact, he ‘declared 29 amendments
to the constitution. Included in the amendments were the President’s right to
dismiss parliament and to expand his tenure in office by five years’. 126 Similar accusations, as always, resurfaced stating that the General wished to perpetuate
dictatorship under the guise of democracy. In particular, the Seventeenth
Amendment, which became effective in December 2003, gave the president
the powers of dissolving the assemblies and the LFO was made part of the
constitution, effectively reversing the Thirteenth Amendment.127
Today, with the stupendous lawyers’ movement that returned Chief Justice
Iftikhar to power, and the eventual passage of the Eighteenth, Nineteenth and
Downloaded by [University of Connecticut] at 18:26 09 January 2017
Twentieth Amendments, a beacon of hope shines in Pakistan. A sincere attempt
is being made to restore parliamentary governance and ensure provincial
autonomy. These amendments do the following: ‘first, it repealed Presidential
powers to dissolve parliament; second, it laid out a clear process for installing
a caretaker set-up in order to hold free and fair elections; and, third, it aims
for free, fair and transparent elections through an independent Election
Commission of Pakistan (ECP)’.128 In particular, the 20th Constitutional Amendment Bill 2012 has given the ECP sweeping powers to minimize the
government’s role in the appointment and removal of its members. By doing
so, it is attempting to anchor its independence.
Constitutional development in Pakistan
133
Conclusion
This chapter reveals that the origins, development and manipulation of Pakistan’s
constitution reflect the ongoing ideological battle in Pakistan. It is not necessarily the text of the constitution that presents a problem but rather its manipulation
by diverging ideological forces who have little regard for its sanctity. With rare
exceptions, civil and military political leaders in Pakistan seem to be either
unaware or indifferent to what constitutes the ‘fo
undational’ values which it
would bode well to adhere to. Political expediency and opportunism, rather
than commitment to cherished values, have become the norm. There are no
mutually agreed rules of the political game, no acceptable framework from
which to compromise and negotiate. Everyone plays for all or nothing. As a
result, the Islamic political values that include accountability, trusting the will of the people and representative government are missing from the political arena.
From a historical perspective, the formation of the Pakistan movement, the
establishment of the country and the development of its constitution were based
on the desire to create a model Islamic state. These initiatives were led by a
political leadership that represented the revivalist approach to the ‘foundational’
aspects of political culture in Muslim polities. Divergent ideological inter-
pretations have proven incredibly difficult to reconcile. The traditionalists are
‘wedded to the expansion of Islamic law and Islamic practices in various
spheres of Pakistani national life’. 129 The secularists ‘take a more restrictive view on the proper role of Islam in the State’.130 The military has been pulled between these polarities – for example, the secularist General Ayub Khan and
the traditionalist General Zia. The revivalists – those who wish to re-evaluate the
‘foundational’ aspects of Islamic political culture in their contextual settings –
have been few, leaving the political arena to the extremes. The analysis of the
constitutional development in Pakistan aptly symbolizes this controversy.
Malik contends that a major factor ‘that destroys efforts for a vibrant
political culture and national unity and blocks the evolution of a civil society has been the dismal record of adhering to constitutional norms in the country’.131
The previous sections in this chapter, outlining the numerous constitutional
amendments, substantiate this allegation. Irrespective of whether the civilian
or military leaderships subscribe to a traditionalist or secularist approach to the
‘foundational’ aspects of Islamic political culture, they all share a disregard for
the sanctity of the Constitution. This is because ‘various constitutional
Islam and Pakistan’s Political Culture Page 27
