Preface to the Second Edition

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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