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Preface to the Second Edition
The
hallmark of the Constitution of Pakistan was the unanimity in its
adoption in 1973. Compromises and concessions were, albeit, a part
of the grand consensus. Each Article of the Constitution was, as
should be the case, the subject of rigorous scrutiny and deliberation
by the members of the constituent assembly. The basic structure
of the supreme law of Pakistan was also debated, at length, within
and without the assembly.
The
form of governance adopted in 1973 was the quintessential parliamentary
form of government, with a titular head of state. 30 years after
its adoption, the Constitution (Seventeenth Amendment) Act, 2003
(Act No. III of 2003), (hereinafter referred to as the said Act),
has changed the face of the Constitution. All in the name of that
much abused and elusive 'delicate balance', effective power is again
tilted in favour of the office of the President. Pakistan today
has a de facto quasi-presidential form of government.
In
the view of the Editor constitutionalism is at stake in Pakistan.
In deference to an accord with political parties arrived at outside
the Parliament, the amendments, tabled under the said Act, were
rushed through the Majlis-e-Shoora with unseemly haste. Adequate
opportunity for due deliberation and debate, within Parliament,
was not provided to the elected representatives of people.
The
incorporation by reference and the purported validation of all amendments
to the Constitution made by the Legal Framework Order, 2002 (C.E.O.
No. 24 of 2002) and succeeding President's Orders, through the mechanism
of section 10 of the said Act, also raises vital issues of constitutional
jurisprudence, with respect to the power and methodology of amendment
to the Constitution provided by Articles 238 and 239 of the Constitution.
Furthermore,
whereas Article 270A in providing, in relevant part, that
all laws ' are hereby affirmed adopted and declared.…..to have
been validly made ', acknowledged and conceded that Parliament
alone had the authority to make and pass Acts granting
ex-post facto validation to all purported amendments to the
Constitution made during the previous period of Constitutional deviation;
Article 270AA, on the other hand and as substituted by the
said Act, now brazenly provides, in relevant part, that
"……the amendments made in the Constitution…..having
been duly made are accordingly affirmed, adopted and declared to
have been validly made by the competent authority……",
without even the pretence of a deeming clause. The express language
of Article 270AA has the effect of rendering Articles 238 and 239
redundant by implication, just as the Constitution of Pakistan,
1973 was in the process of revival. This sets a bad precedent for
the future.
I
am grateful to Mr. Salahuddin Sheikh, Superintendent Government
of Sindh, Law Department, for providing me with copies of the latest
gazettes and relevant amendments to the Constitution and proof reading
the manuscript. I also appreciate the assistance of Mr. Naeemuddin
Siddiqui, Director Library and Research at the High Court of Sindh,
in again providing me with copies of necessary gazettes required
to complete the task at hand.
I
would like to laud the services provided by my Assistant, Mr. Azhar
Shahzad, who has again single-handedly finalized the manuscript
for the second edition of the book and helped in the preparation
of the additional footnotes necessitated due to the passage of the
Constitution (Seventeenth Amendment) Act, 2003.
I
am also thankful to Mr. Nasir Khan, Advocate, who proof read the
manuscript for the second edition of the work as well.
Finally
I would like to thank my publisher, Mr. Kamran Noorani, for his
effort in publishing this timely edition and for all his encouragement
and support to me.
Karachi
April, 2004 ZAIN
SHEIKH
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