Recently, the PTI-led government embarked on a journey to alter the scheme of the constitution of Pakistan from parliamentary to presidential form of government. It is adamant in its endeavor. The effort however is the means to two possible dangerous ends: first, undoing the 18th constitutional amendment; and secondly, concentrating the power in hands of a few.
Without going into the merits and demerits of the parliamentary form of government vis-à-vis presidential form of government per se, we need to examine whether a power to change the character of the constitution exists? Does the parliament have, under Articles 238 and 239 of the constitution, power to posit a presidential form of government?
On a legal plane, like all constitutions, a federal constitution is a living document framed by the constituent assembly, which, after framing a constitution, becomes functus officio. It is a contract between the centre and provinces. It is also a contract between the state and individuals. It is a super-legislation by which a state is governed, that is powers, functions and responsibilities of legislature, executive and judiciary are delineated and defined. It also guarantees fundamental rights to citizens.
It further provides for structure and scheme of governance. Legislature, executive and judiciary are products of the constitution, and exercise such powers as are prescribed by the constitution. To meet challenges of the time, the legislature is endowed with powers to amend the constitution.
It is the people of Pakistan who had, through their chosen representatives in the constituent assembly, adopted the 1973 constitution. Thereafter, the parliament, in exercise of its powers under articles 238 and 239 of the constitution for the purpose of amendment in the constitution, has effected a number of amendments in the constitution, including the 18th constitutional amendment.
A bare textual reading of the preamble to the constitution of Islamic Republic of Pakistan 1973 shows that it consists of key features – such as Islam, guaranteed fundamental rights, federalism, provincial autonomy, parliamentary form of government and independence of judiciary. Provincial autonomy is the essence of administrative federalism and fiscal federalism. Provincial autonomy is a strong guarantee for a powerful federation. These key features form the bedrock of our polity.
Besides, the people of Pakistan have accepted to be governed under the 1973 constitution. Despite a number of adventurisms, the constitution has managed to survive for more than four decades. This is a clear indicator of its political legitimacy.
Under Articles 238 and 239 of the constitution, the parliament does not enjoy unlimited amendatory powers. The framers of the constitution had perhaps contemplated that undemocratic forces might at some point endeavor to alter the character of the constitution. To prevent any unholy intrusion into the constitution, they inserted limitations on powers of the parliament to amend the constitution. These inherent limitations are prescribed in the preamble to the constitution -- by exercising amendatory power under articles 238 and 239 of the constitution of Islamic Republic of Pakistan, the parliament cannot alter the key features of the constitution. The parliament has no powers to undo Islamic provisions, guaranteed fundamental rights, federalism, provincial autonomy, parliamentary form of government and independence of judiciary as set forth in the preamble.
Thus the parliament has no power to replace the parliamentary with the presidential form of government. This is a constitutionally built safeguard, aimed to keep the parliament within bounds. After insertion of the preamble as a substantive part through article 2-A into the constitution -- supra constitution and grund norm of constitution -- this controversy was set at rest.
To think of altering the key features of the constitution amounts to resisting goals of the society, far-sightedness of the framers of the constitution and sacrifices of the people. People have decided to live in a democratic society with a parliamentary form of government. To alter this form of government will be an unholy transgression. Any such move will close all avenues to progression.
The writer is a lawyer.
Without going into the merits and demerits of the parliamentary form of government vis-à-vis presidential form of government per se, we need to examine whether a power to change the character of the constitution exists? Does the parliament have, under Articles 238 and 239 of the constitution, power to posit a presidential form of government?
On a legal plane, like all constitutions, a federal constitution is a living document framed by the constituent assembly, which, after framing a constitution, becomes functus officio. It is a contract between the centre and provinces. It is also a contract between the state and individuals. It is a super-legislation by which a state is governed, that is powers, functions and responsibilities of legislature, executive and judiciary are delineated and defined. It also guarantees fundamental rights to citizens.
Despite a number of adventurisms, the constitution has managed to survive for more than four decades. This is a clear indicator of its political legitimacy.
It further provides for structure and scheme of governance. Legislature, executive and judiciary are products of the constitution, and exercise such powers as are prescribed by the constitution. To meet challenges of the time, the legislature is endowed with powers to amend the constitution.
It is the people of Pakistan who had, through their chosen representatives in the constituent assembly, adopted the 1973 constitution. Thereafter, the parliament, in exercise of its powers under articles 238 and 239 of the constitution for the purpose of amendment in the constitution, has effected a number of amendments in the constitution, including the 18th constitutional amendment.
A bare textual reading of the preamble to the constitution of Islamic Republic of Pakistan 1973 shows that it consists of key features – such as Islam, guaranteed fundamental rights, federalism, provincial autonomy, parliamentary form of government and independence of judiciary. Provincial autonomy is the essence of administrative federalism and fiscal federalism. Provincial autonomy is a strong guarantee for a powerful federation. These key features form the bedrock of our polity.
Besides, the people of Pakistan have accepted to be governed under the 1973 constitution. Despite a number of adventurisms, the constitution has managed to survive for more than four decades. This is a clear indicator of its political legitimacy.
To prevent any unholy intrusion into the constitution, framers of the constitution inserted limitations on powers of the parliament to amend the constitution. These inherent limitations are prescribed in the constitution’s preamble.
Under Articles 238 and 239 of the constitution, the parliament does not enjoy unlimited amendatory powers. The framers of the constitution had perhaps contemplated that undemocratic forces might at some point endeavor to alter the character of the constitution. To prevent any unholy intrusion into the constitution, they inserted limitations on powers of the parliament to amend the constitution. These inherent limitations are prescribed in the preamble to the constitution -- by exercising amendatory power under articles 238 and 239 of the constitution of Islamic Republic of Pakistan, the parliament cannot alter the key features of the constitution. The parliament has no powers to undo Islamic provisions, guaranteed fundamental rights, federalism, provincial autonomy, parliamentary form of government and independence of judiciary as set forth in the preamble.
Thus the parliament has no power to replace the parliamentary with the presidential form of government. This is a constitutionally built safeguard, aimed to keep the parliament within bounds. After insertion of the preamble as a substantive part through article 2-A into the constitution -- supra constitution and grund norm of constitution -- this controversy was set at rest.
To think of altering the key features of the constitution amounts to resisting goals of the society, far-sightedness of the framers of the constitution and sacrifices of the people. People have decided to live in a democratic society with a parliamentary form of government. To alter this form of government will be an unholy transgression. Any such move will close all avenues to progression.
The writer is a lawyer.