Abstracts: International Conference | The Constitution of Pakistan: Lessons for the Next 50 Years (Day 2)
Constitution of Pakistan: Fostering Interprovincial Harmony and Fraternity
(Rizwan Ahmed)
Abstract:
The Constitution of Pakistan has played a vital role in promoting harmony and fraternity among the diverse provinces of the nation since its inception. This abstract explores the constitutional provisions that facilitate cooperation and unity, ensuring the equitable distribution of power and resources while respecting the unique identities and aspirations of each province. Enacted in 1956 and subsequently amended, Pakistan’s Constitution embraces the principles of democracy and federalism, providing a delicate balance between the central government and the provinces. The framework encourages consensus-building and inclusive governance, allowing provinces to voice their concerns and actively participate in national decision-making. Crucial to interprovincial cooperation is the establishment of provincial assemblies and the Council of Common Interests (CCI). Through these bodies, representatives from all provinces engage in constructive dialogue, resolving conflicts and addressing matters of national significance. The CCI serves as a platform for cooperative decision-making and ensures that the interests of all provinces are adequately represented. The Constitution also recognizes and preserves the rich cultural and historical heritage of each province. By enshrining regional languages alongside the national language, Urdu, the document celebrates linguistic diversity and promotes cultural pluralism, forging a stronger sense of unity among the provinces. Furthermore, the Constitution guarantees fundamental rights and freedoms for all citizens, irrespective of their province of origin. This commitment to individual liberties, combined with provisions for resource-sharing and development, fosters a spirit of solidarity and inclusivity across the nation. While challenges persist, such as political disputes and economic disparities, the Constitution remains the cornerstone of Pakistan’s nation-building process. It continues to evolve to address the changing dynamics and complexities of the nation, reinforcing its commitment to a united, diverse, and harmonious Pakistan. To sustain and deepen this unity, continued adherence to and improvement of the constitutional framework are crucial as Pakistan advances on its democratic journey.
Federalism as a Tool for Ethnic Conflict Resolution: A Case Study of the 18th Amendment to the Constitution of Pakistan.
(Eman Farooq)
Abstract:
The post-Cold War era is marked by an increased occurrence of ethnic conflict that manifests in the form of ethnic tensions or violent conflict in heterogeneous societies. One of the solutions posed to resolve ethnic conflicts is Federalism which is a ‘multi-tier’ system of governance that devolves certain powers to sub-units of a federation, making them more autonomous. Pakistan has also experienced ethnic conflict fueled by relative deprivation and developmental disparities, primarily in the form of center-province relations, that have also escalated into episodes of violence at certain points in time. While officially a federal parliamentary republic, Pakistani state’s centralizing tendencies have prevented federalism to be followed in spirit. However, in 2010, Pakistan looked towards Federalism as a solution to ethnic conflict and therefore, the 18th amendment was introduced. This paper analyses the impact that the 18th amendment had on addressing the provincial grievances that had fueled ethnic conflict in Pakistan, and by implication, its effectiveness as a tool for solving ethnic conflict. The study employs qualitative research methodology including a rigorous study of existing literature regarding Federalism and the 18th amendment in addition to official statements. Empirical data and statistics published by reputable institutions have also been taken into account. The paper concludes that Federalism in Pakistan in the form of the 18th amendment has only been partially successful in resolving ethnic conflict because developmental inequalities continued to persist despite the 18th amendment’s attempts to reduce them. Moreover, the study also finds that the 18th amendment seems to have created new ethnic problems such as the intra-provincial ethnic tensions or “minorities-within-minorities” issue. Lastly, while the 18th amendment proves to be a step in the right direction, failure to address capacity issues has prevented the amendment from achieving its intended objectives.
Centre-Province Relations after 18th Amendment: An Analysis of Council of Common Interests (CCI)
(Dr. Adam Saud)
Abstract
Centre-Province relations in Pakistan has mostly been turbulent since independence. Pakistan had to face serious challenges to balance these relations during the first two decades. Fall of Dhaka was the greatest lesson to learn but our policy makers continued with strong centre and weak provinces for different reasons. In order to give provinces more powers, 18th amendment in 1973’s constitution was passed by the parliament in April 2010. It was thought that this amendment will empower provinces genuinely and bridge the gap between centre and provinces. Besides revamping many institutions, CCI was also revamped and given more powers under this amendment.
This research focuses on the post 18th amendment structure and functions of the CCI. The research critically analysis the progress of CCI after this amendment. It has been observed that despite many challenges, ‘new’ CCI functions in a better way. Inclusion of all Chief Ministers and three federal ministers under the leadership of Prime Minister of Pakistan has made it a serious forum to discuss matters related to Federal Legislative list-II of the constitution of Pakistan. Conditions of quorum and meeting after every ninety days have improved its working. CCI had been working without a permanent secretariat for decades but has gained one in recent years. It successfully helped implementation of National Electricity Policy 2021 and Census 2017.
Implementing 18th Amendment in Balochistan: Contentions and Way Ahead
(Bakht Noor Khan, Muhammad Farooq)
Abstract:
The 18th constitutional amendment is considered a milestone constitutional development in Pakistan for a federal system of governance and administration. This amendment if implemented in letter and spirit, can usher Pakistan on the path of a federal democracy, as envisaged by its founding fathers. However, given the scale and magnitude of the changes it brought to the existing administrative structure, it not a smooth ride to implement the amendment. Therefore, besides jubilance, there are concerns over its implementation mechanisms.
The primary success of 18th amendment is devolution of powers from center to the provinces. The amendment enables provinces to take charge of certain departments and sectors at provincial level. For instance, the 18th amendment authorizes the provinces under Article 157 of the constitution to receive the net profits of natural resources generated in the respective provinces. Under Article 158 of the constitution, the province in which a well-head of natural gas is situated shall have precedence over other parts of Pakistan. Balochistan and Khyber provinces have concerns about the gas distribution. These issues, among others, have resulted in bone of contention between federation and provinces.
This paper shall look into the years after 18th amendment. Particularly, the regulatory and legislative complexities that have arisen in the wake of the amendment. This paper will investigate the standpoints of center and provinces, in the context of devolution and decentralization. The focus of the paper will be the provisions of 18th amendment, and the consequential policies of the center and provinces. It will evaluate these policies, regulations of both the Center and Balochistan, against the objective and essence of 18th amendment. Conclusively, the focus of the study is implementation of 18th amendment in Balochistan. The progress will be assessed on the landmarks set by the 18th constitutional amendment.
Exploring Possibilities for Evolvement of AJ&K-GB Within the Contours of Constitution: A Comparative Analysis of Autonomy of Provinces Vis-A-Vis Administered Territories
(Khizar Ahmad)
Abstract:
The research paper delves into the intricate dynamics of the relationship between the central government of Pakistan and Azad Jammu and Kashmir (the “AJ&K”) along with Gilgit Baltistan (the “GB”). The study examines the crucial elements of provincial autonomy, distribution of legislative and administrative powers, and economic relations within the framework of the Pakistani constitution.
Following a United Nations Security Council resolution, Pakistan was entrusted with the administration of both regions. Although AJK and GB are treated as administrative units of Pakistan in numerous aspects, they lack the full spectrum of constitutional rights and autonomy granted to other provinces. Currently, the relationship with AJ&K-GB is a two-fold structure that on one hand stems from the Article 257 and 258 of the Constitution of Pakistan 1973, whereas on the other hand it extends out of the AJ&K Interim Constitution Act of 1974 alongside the Gilgit-Baltistan (Empowerment and Self-Governance) Order 2009. Where Constitution of Pakistan forms relationship – same remains an impediment to the growth and development – legal as well as constitutional, of these administered regions. AJK -GB are not represented in Pakistan’s parliament or constitutional institutions established for consultation and coordination between the federation and its constituent units.
The paper analyses the evolving relationship between the federal government and AJK-GB, highlighting the complications that stand on the way to extension of rights, freedoms and development to subjects of AJ&K-GB at par with provinces. The core objective of this paper is to explore the viable options available within the ambit of the Pakistani constitution to enhance governance and welfare in AJK and GB.
In conclusion, the paper underscores the opportunities and challenges posed by the decades old constitutional limbo that have affected the lives of people of the regions. It is inevitable to explore and resort to the available opportunities without affecting the delineations of United Nation’s Resolutions, and sanctity of the policy of liberation of Jammu and Kashmir.
Civil Military Relationship in Democratic Pakistan
(Muhammad Yonas Khan)
Abstract:
The paper explores the futuristic calibration of Pakistan’s constitutional development and its interpretation through precedents in the face of multiple socio-political, socio-economic and legal challenges. In particular, it analyzes the essential normative characteristics of constitutional legal framework based on separation of powers between pillars of the state vis a vis civil-military relationship. The article attempts to assess the constitutional direction from broader legal and jurisprudential perspective meant to provide an avenue of progress and prosperity through its compatibility with socio-political norms. The main inquiry of the article is whether the constitutional evolution of Pakistan as democratic state would be able to withstand the burden of contemporary socio-economic, socio-political and geo-political challenges in creating an ideal equilibrium and balance of power between civil and military institution or would lead to more blurred boundaries precipitating institutional conflicts and interventionist models.
The paper through legal lens draws upon theories of legal positivism and its critique to understand the constitutional legitimacy of military interventions in democratic and political system. It covers the literature gap in analyzing jurisprudential approach of Pakistan’s judiciary as custodians of constitutional and democratic norms vis-à-vis constitutional scheme of civil-military relations, and its institutionalization in comparison with other international models. The qualitative research method has been invoked to conduct thematic analysis of open-ended interviews of sample population, comprising of respondents from executive (civil and military personnel) and judiciary (judges and lawyers). In the end the paper recommends a comprehensive institutional frame work carved out of domestic realities as well as internationally recognized constitutional schemes.
Military Court Trials of Civilians in Pakistan: Between Constitutional Rights, International Obligations and Sustainable Justice
(Muhammad Hassan)
Abstract:
The recent call to try civilians in military courts has reignited the debate surrounding the legitimacy of these quasi-judicial tribunals, and their exercise of jurisdiction over civilians. Regarding trials of civilians in military tribunals, there have been many judgments and academic discourses, and we find diverging views either endorsing or condemning this sui generis practice. The position of higher courts is largely in favour, but the matter has not been decided once and for all.
Pakistan does not subscribe to the idea of the direct effect of International treaties, yet like any other dualist state, many rights guaranteed in such treaties have been incorporated in its constitution. There is a stark contrast, however, between the case law interpretation of these rights and their International corresponding equivalents in the Transnational Regimes. The International Protection of Rights mechanisms still pose many questions on the legitimacy of civilians being tried in military courts. More confusion arises with the proliferation of contemporary ideas of Sustainable Justice, which seem divergent and somewhat in contravention of such Pakistani state practice.
This qualitative research paper will juxtapose the traditional constitutional interpretations with contestations in relevant international instruments and explore the possibility of harmonization. A futuristic proposal would be laid out to predict a direction for proposed future amendments. The same would be done in relation to the increasingly important idea of Sustainable Justice which directly relates to the United Nations Sustainable Development Goal number sixteen. Moreover, as indispensable themes, the paper would explore: whether the trial of civilians in military courts is a constitutionally sound practice. Does trying civilians in military courts infringe upon Pakistan’s International Obligations? And is the expediency behind these specialized courts still prevalent in the country?
Democratic Oversight in Transition: Exploring Civil-Military Relations in Pakistan within Global Contexts
(Adrish Anwar)
Abstract:
The dynamics of civil-military relations hold significant consequences for the governance and stability of states globally. Civil-military relations in Pakistan have been marked by a complex interplay between civilian authorities and the military establishment. Political stability, governance, and democratic consolidation have been impacted as Pakistan has transitioned between different periods of military and civilian rule. Pakistan’s constitution entitles the civilian government, led by elected officials, as the ultimate decision-making authority. However, historical legacies of military intervention in politics have influenced the dynamics of this relationship. Civilian regimes have tried to ensure that the armed forces remain subsidiary to the elected leader by establishing their control over the military. Where the military has a key role in defending a country’s national security and borders, demarcating a clear line between the military and civil regime regarding authority and decision-making is crucial. Central to this analysis is the examination of the constitutional framework that defines civil-military relations in Pakistan. The complex balance of power and accountability embedded within the constitutional scheme plays a significant role in shaping the interactions between the civilian and military spheres. This article explores civil-military relations in Pakistan during its democratic evolution, Contextualized within the broader global landscape. By delving into the multifaceted interplay between civilian authorities and the military, this study aims to unravel the intricate tapestry of democratic oversight during a critical phase of transition. Additionally, this article analyzes different models of civil-military relations through a comparative analysis to highlight commonalities, divergences, and potential lessons. This comparative lens enables a deeper understanding of the broader implications of civil-military relations, transcending national boundaries.
Keywords: Civil-Military relations, Constitution of Pakistan, Comparative analysis
Examining conformity of existing laws with injunctions of Islam by Federal Shariat Court of Pakistan
(Dr. Ahsanullah, Muhammad Inayat)
Abstract:
Purpose: The Constitution of Islamic Republic of Pakistan, 1973 explicitly affirms the sovereignty of Allah Almighty over the entire universe. The authority must be exercised by the people of Pakistan as sacred trust within the limits prescribed by Allah. The Federal Shariat Court of Pakistan (FSC) is established to examine and decide whether any law or provision of law is against the injunctions of Islam as laid down in the Holy Qur’an and the Sunnah of Holy Prophet (peace be upon him). In this respect the court either on its own initiative or on the petition of a citizen of Pakistan, Federal Government or a Provincial Government examines and decides the conformity of any law with the injunction of Islam. The current study is designed to analyze the petitions decided by the FSC to explore the conformity of existing laws with injunctions of Islam. It will explore what laws or provisions of laws have been challenged in the court and what is decision of the court about the conformity of law or provisions of law with Islam. It will also highlight what laws have been declared against the injunctions of Islam by the court.
Methodology: Content analysis of reported judgments of FSC will be conducted for the current study. The court has shared 863 full text reported judgments on its website. A search interface is provided for users to find their intended judgments. All reported judgment can be viewed and column with case no have reported the type of petitions such as shariat petition, criminal revision and criminal appeal etc. Keyword “shariat petition” was searched by using Ctrl+f option. This search retrieved 112 results of shariat petitions. The Pdf files of these judgments are downloaded. These shariat petitions will be analyzed to examine the laws and provisions of laws which have been challenged. The reasons of decision in favour of the petition or against will also be analyzed.
Conclusion: The current study will provide complete list of laws and provisions of laws which have been challenged in the FSC. It is also providing an account for laws or provisions of laws which have been declared repugnant to Islam by the court during the last forty years. It also shows the interest of Federal and Provincial Governments in seeking guidance of the court in regard to existing laws.
Democratizing Justice: Charting a Path for Transparent Judicial Appointments in Pakistan
(Attika Rehman)
Abstract:
Independent judiciary is a foundation of any democratic state governed by rule of law. Transparent and fair system of judicial appointments plays a crucial role in achieving this goal. In Pakistan, the process of judicial appointments has long been a subject of debate and scrutiny, centered on the practice of judges appointing judges, which concentrates power in the hands of a single individual – the chief justice of Pakistan who acts as a gatekeeper or paterfamilias in this process. The legislative or executive authorities in such case have limited power and role in the entire process hence making its transparency questionable. The recent introduction of the Supreme Court Practice and Procedures Act, 2023 by the legislature and the subsequent interim order of the Supreme Court has yet again reignited the tussle between the legislature and judiciary in Pakistan. This paper aims to provide a critical overview of the law relating to judicial appointments in Pakistan, while also encompassing the impact of the 18th and 19th amendments to the constitution, and the relevant judicial precedents. Drawing inspiration from international best practices, the paper further explores various models employed by other democratic nations to counter similar challenges. Finally, the paper proposes a way forward for Pakistan’s judicial appointments and advocates for the integration of multi-stakeholder approach, mitigation of the concentration of power, incorporation of merit-based evaluations and public consultations. Resultantly, empowering the corridors of power with integrity and fairness will solidify the foundation of an independent judiciary which is crucial for the nation’s democratic fabric and the rule of law.
Keywords: Judicial Appointments, Legislature, Rule of Law, Judicial Independence, Democratic Reforms
Legislation through Adjudication in Family Laws: A Case Study of Pakistan
(Dr. Mudasra Sabreen)
Abstract:
Legal system of Pakistan is based on the doctrine of separation of powers which assigns different roles to organs of state namely legislature to legislate, executive to run administration of the state and judiciary to adjudicate. The Constitution of Pakistan 1973 endorces this division of labour. In reality where laws are not in detail, judiciary enjoys discretion and steps in to legislate through its judgements. Superior courts fill such gaps by assigning a certain interpretation where more than one interpretations are possible or by making a certain rule where no rule is found. Being a common law country such interpretations and rules become binding upon lower courts as Pakistan adheres to the doctrine of stare decisis i.e. binding precedents. It is especially important to see such developments in the area of family law where the interplay between common law, Islamic law and custom provides courts opportunity to legislate quite often not just adjudicate. Occasionally this use of discretion gives rise to contradictory decisions. Pakistan’s judiciary’s approach towards family law cases is considered pro women rights and child rights. This paper analyses legislative developments made by judiciary through adjudication and will see how these developments have shaped Pakistan’s family law. Doctrinal method will be used to analyze relevant statutes, gaps and decisions of superior courts.
Keywords: Legislation, Adjudication, Judicial Ijtihad, Family law of Pakistan
The Significance of Constitutional Courts in Shaping Pakistan’s Policy Formulation and Governance Framework
(Syed Abdullah Anwar)
Abstract:
The perpetual relationship between the Legislature and the Judiciary in the sphere of law making is fundamental for development in Pakistan’s policy and governance structure. This paper intends to highlight this delicate balance between statutory enactments and interpretation by the courts through judgements.
In order to provide insight into the intricacies and hurdles involved in striking a balance between legislative and judicial authorities, the paper examines prominent instances that have had a significant impact on Pakistan’s legal system. In these case laws, the judiciary has used its original, appellate, revisional or Suo Moto jurisdiction to interpret, uphold and overturn laws that it regarded to be unconstitutional, unlawful or incompatible with the Injunctions of Quran and Sunnah. Examples from the High Courts, Federal Shariat Court and Supreme Court of Pakistan are discussed to provide a diverse perspective from all three constitutional courts at the federal and provincial levels.
The paper additionally questions the idea of judicial activism and the way it affects the legislative process. It assesses the judiciary’s role in resolving societal, cultural, constitutional issues along with bridging legislative gaps whenever the legislature has lagged behind or remained inactive. Therefor the findings of the paper draw attention to the implications of a balanced approach between the legislature and judiciary upon the mode of governance, rule of law and the overall principles and fundamental rights enshrined in the constitution of Pakistan.
Keywords: Constitution, Legislation, Judiciary, Courts, Judgements, Governance, Policy, Pakistan.