Pakistan: Constitutional Issues in 1964

Clarification by the Pakistan National Assembly and by the judiciary of four important constitutional issues makes 1964 second in importance only to 1962, the year the second constitution was promulgated. Pakistan continues to be a constitutional system with a political process restrained by the ordinance-making power, indirect elections, the ambiguity of a presidential apparatus functioning in a setting conditioned to parliamentary practice and by the uncertain allocation of powers between center and provinces. Nevertheless, developments in 1964 suggest that the legislature, suspended during forty-four months of martial law, has not been a totally irresponsible political force and that the judiciary has continued to manifest its resiliency as a countervailing force to executive power. Together they have succeeded in giving the polity of Pakistan a coherence which it lacked and have placed that polity quite clearly (in concept, if not in operation) within the ambit of western constitutional presidential systems. Fundamental Rights: The first important development was the first amendment to the Constitution approved by the National Assembly on December 25, 1963 and assented to by the President on January 10, 1964. By enumerating and defining fundamental rights and rendering them justiciable, this amendment put an end to one of the most vexing problems created by the 1962 Constitution. The first Constitution of 1956 had enumerated twenty fundamental rights, alleged violations of which could be contested in the high and supreme courts. The congruence of these rights with the peculiarly expansionist interpretation of the writs (mandamus, certiorari, quo warrant, prohibition and habeas corpus) provided a ready means of securing their enforcement. Enumeration, justiciability and writs 1 assumed the sanctity of a legal triadic deity, especially among the legally trained, who number some 40,000 in Pakistan. During the fortyfour months of martial law (October 7, 1958-June 8, 1962) the courts strained to assert the transcendence of fundamental rights irrespective of martial law efforts to oust their jurisdiction. While the doctrine that fundamental rights transcended written law was never asserted unambiguously, the implication that they did seemed to become increasingly clear. When the new Constitution was promulgated by President Ayub in 1962, no feature provoked greater opposition than elimination of these rights and the power of the courts to enforce them. The legal community, which