Constitutional amendments - Part I

This year, Pakistan is marking 50 years of the 1973 constitution that has experienced many mutilations at the hands of both civil and military rulers. Having remained in abeyance a couple of times, the constitution has survived all the vagaries in the past half century.

In a series of columns, we will discuss some of the amendments that have had an impact on the constitutional and judicial history of Pakistan. It is interesting to note that the first seven amendments Z A Bhutto introduced from 1974 to 1977 paved the way for further mutilations of the constitution in the years to come. Just to cite one example, the Bhutto government had planned the ban on the National Awami Party (NAP) in 1975 much earlier by introducing certain constitutional amendments to pave the way for the dissolution of the NAP.

There is no gainsaying the fact that military rulers have done more harm to this country than all civilian rulers put together; still we need to highlight that the civilians too – whenever they could – were not far behind in this race for MAD (mutually assured destruction).

A closer look shows that the first amendment was not as innocuous as it appeared. The government of Pakistan had already recognized Bangladesh as an independent country to ensure Mujibur Rahman’s participation in the Islamic Summit Conference in Lahore in February 1974; by amending Article 1 of the constitution in April 1974, the parliament of the rump Pakistan deleted any mention to the erstwhile eastern wing of the country – East Pakistan. But there were other aspects of the First Amendment that showed the government’s designs for implementing some hidden agenda too.

Article 17 of the constitution underwent some drastic changes, paving the way for curtailing the freedom of association. The government imposed new restrictions on this freedom to form associations and used as an excuse the question of the integrity and sovereignty of Pakistan. With the passage of this amendment, the Political Parties Act of 1962 changed shape and the federal government arrogated to itself the powers to declare any political party as working against the integrity and sovereignty of the country. The accused party would stand dissolved and the federal government could confiscate all its funds and properties.

Of course, the Supreme Court could overturn the government’s declaration, but keeping in mind the subservient judiciary it never happened. Apparently, there were two major motives behind this amendment: the Bhutto government not only wanted to destroy the main opposition that the National Awami Party was leading, but also had a feeling that some disgruntled elements within the government such as Ghulam Mustafa Khar and J A Rahim might decide to part ways and form a new political party. The Bhutto government wanted to keep the sword in its hands – to use when the opportunity arose.

The wheel started moving and would ultimately tear asunder the very fabric of this society. The year 1974 ended with J A Rahim being removed as the secretary-general of the Pakistan People’s Party and Dr Mubashir Hasan taking his place. The story of Rahim being maltreated by goons is well documented but even more surprising was the willingness of Dr Mubashir Hasan to take Rahim’s seat rather than voice his concerns. Little did he realize that soon he would also be on his way out.

The year 1975 saw another two amendments to the constitution, aimed at consolidating the federal government’s powers to victimize political opponents and curtail courts’ authority respectively. The federal government was becoming increasingly intolerant of the opposition’s repeated recourse to the judiciary against the government’s highhandedness. February 1975 was an eventful month; the National Assembly passed a bill for terrorism trials by special courts. The situation became clear on February 8 when senior PPP leader Hayat Mohammad Khan Sherpao – who was also a former governor of the NWFP (now KP) – lost his life in an attack in Peshawar and within a week the government banned the NAP and declared it an illegal party.

Within a couple of days, the Bhutto government introduced the third amendment to the constitution curtailing the rights of detainees, and extending the powers of the detaining authorities. The amendment also reduced some safeguards against preventive detentions and extended the period for such detentions from one month to three months without production before a review board. Now the government could detain any person indefinitely if they were ‘acting or attempting to act in a manner prejudicial to the defence, integrity, or security of Pakistan”.

The government also amended the Code of Criminal Procedure. Now the courts could not grant any bail before arrest to a person unless the police had registered a case against the accused. Such bails before arrest were a safeguard for political workers to save themselves from victimization, and a court could approve bails even if there was no case registered, but a victim anticipated that the police would file a case and make arrests before the accused could approach the court.

The purpose of these amendments was now evident as the National Awami Party became the main target of both. The entire NAP leadership including Abdul Wali Khan, Attaullah Mengal, Ghous Bakhsh Bizenjo and many other top and mid-level leaders found themselves behind bars. Using the constitutional amendments, the government and the establishment crushed the only major political party that stood for left-wing, progressive, and secular ideals, dealing a severe blow to the prospects of democractic norms and values in Pakistan. The same old spectacle that had previously portrayed Bengalis as traitors modified itself to include new villains supposedly working against the country that the new protagonist Z A Bhutto was trying to defend.

Whereas the state had previously accused Bengalis, now it charged the NAP leaders – mainly Baloch and Pakhtun – as Afghan agents. Bizenjo, Mengal, and Wali Khan were all towering personalities with a long history of democratic struggle and impeccable credentials as democrats.

Wali Khan’s entire family consisted of stalwarts such as his father Abdul Ghaffar Khan (Bacha Khan), brothers Abdul Ghani Khan and Abdul Ali Khan; and his uncle Dr Khan Saheb. None of the early amendments to the constitution granted more democratic rights to the people of Pakistan.

The aim of these amendments was to curtail judicial powers and destroy any possible opposition to the federal government. Since 1957, the National Awami Party had been at the forefront of democratic struggle in the country and also fought for the dissolution of the One-Unit scheme for 15 years from 1955 to 1970. Under authoritarian rules, the NAP raised the flag of democracy, provincial rights, and secularism; now it stood dissolved under the new constitutional amendments.

To be continued

The writer holds a PhD from the University of Birmingham, UK. He tweets @NaazirMahmood and can be reached at:

mnazir1964@yahoo.co.uk