WHEN CONSTITUTION IS INEFFECTIVE

By:

SYED MUHAMMAD KALEEM AHMAD KHURSHID

Ex-President Lahore High Court Bar Association

1. The Constitutions always specify the principles whereby the state

confers rights upon its citizens. The Constitution is not a cause but is a
consequence of personal and political freedom. No doubt, a person has a
right to do something but it is not meant that the said right is not subject to
any limitation. It is universal principle that rights carry with it the some
restrictions.

2. There are certain absolute rights and those rights are always protected
by the Constitution. A society where rule of law prevails, the people are
assured that their Fundamental Rights are protected. The Supreme Court has
laid down in PLD 1991 SC 412 that protection of social justice amounts to
eradication of social evils and protection of illiterate, poor persons in
accordance with the tenants of Islam, while co-existence of power and
corruption amounts to frustration of the Constitutional guarantees.

3. Article 2-a: Provides that Objective Resolution is a substantive part of

the Constitution. No doubt, it has been observed by the Supreme Court in
1993 SCMR 1718 that Objective Resolution after the incorporation of
Article 2-a has not been fundamentally transformed from the role envisaged
for it at the outset that it should serve as beacon light for the Constitution
makers. While it was held in PLD 1987 Kar. 466 by Mr. Justice Tanzeel-ur-
Rehman that even the law declared by the Supreme Court is subservient to
the provision of Article 2(a) of the Constitution. The Courts are bound to
declare any law repugnant to the injunctions of Holy Qur'an and Sunnah.
These powers can be exercised by the Federal Shariat Court under Article
203 (a). But in Hakim Khan case (PLD 1992 SC 595), it was held that no
doubt Objective Resolution has become the part of the Constitution but it is
not supra Constitutional provision. If there is inconsistency between the
provision of the Constitution and the same exceeds the limit prescribed by
Al-mighty Allah, the matter can be brought to the notice of Parliament,
which alone is competent to amend the Constitution and remedial legislation
to bring the impugned provision in conformity with the injunctions of Islam.
It was further observed that Article 2(a) was never intended to be self-
explanatory document. The Court cannot strike down Article 45 of the
Constitution even if the same is repugnant to Holy Qur'an and Sunnah. In
this case the President of Pakistan commuted the sentence of accused
persons under Article 45 of the Constitution. A full Bench of the High Court
has held that under the Islamic jurisprudence only a "Wali" (Guardian) of the
deceased can waive "Qisas" and not head of the State but the Supreme Court
accepted the appeal and held that it is beyond the power of the Court to
declare any provision of the Constitution to be repugnant to the injunctions
of Islam. The Court by invoking Article 2(a) of the Constitution cannot
strike down any other provision of the Constitution; thus, the said Article has
lost its efficacy. It will not be out of place to mention here that in "Asma
Jilani case" (PLD 1972 SC 139), it was held that successive manoeuvering
for the usurpation of powers was neither justified nor valid and it was held
that the Objective Resolution is the Grundnorm of the Constitution but in
Zia-ur-Rehman case (PLD 1973 SC 49), it was observed that no doubt the
Objective Resolution is an important document but it is neither a supra
Constitutional document nor it is enforceable. Now, this very "Grundnorm"
has been frustrated on 03.11.2007 by an individual.

4. Article 3: It is incumbent upon the State to eliminate exploitation in

any form which is opposed to human dignity and freedom of individual. The
state should ensure that people are not exploited because of their wants,
needs and due to economic compulsions. They should not be compelled to
adopt a profession which is against their age and sex. It is Fundamental
Rights of every person not to be forced to work without payment of labour,
thus it is responsibility of the state to provide protection to the destitute,
infirm persons, women, children and citizens against exploitation. Due to the
New World Order, the new economic culture has emerged. The economic
growth in the under developed countries has been jeopardized and sale of the
national assets on throwaway prices is an exploitation which is unwarranted
under the Constitution. The sale of the Pakistan Steel Mills, Habib Bank,
United Bank, American Fertilizer Company and other national assets in
haphazard manner is the result of the exploitation, thus only Constitutional
Courts can come to the rescue of the public at large against this exploitation.
The decision of the Supreme Court of Pakistan PLD 2006 SC 697 (Steel
Mills case) is an eye opener. The golden shake hand culture has been
introduced in Pakistan. In the under developed countries the right of food
and right of shelter are also Fundamental Rights but the people are being
deprived of their jobs due to the above said golden shake hand culture;
millions of people are being deprived of their right of food and shelter. There
is exorbitant increase in the prices of sugar, petrol, gas and cement. The real-
estate business is also a source of exploitation while massive unemployment
and retrenchment in Government and autonomous corporations have
practically frustrated the object of Article 3 of the Constitution. The hiring of
executives in six figures and retirement of the petty employees amounts to
exploitation and the State has become the source of exploitation. At present
agricultural workers and tenants of the military farms are the victims of cruel
inhuman exploitation. Only the Constitutional Courts can come to the rescue
of the nation against the aforesaid exploitations. When Supreme Court of
Pakistan tried to eliminate exploitation whole of the judicial culture has been
crushed by a retired general.

5. Article 4: This Article envisages that every person in Pakistan is

entitled to the protection of law and he should be dealt with in accordance
with law. The rationale behind Article 4 is that acts of the state are not
immune from scrutiny even legislature cannot enact any law when a
particular person or class will be immune from scrutiny. The establishment
of Defence Housing Authority culture in the country have practically
eliminated the concept of equality before law because undue immunities
have been extended to the said housing societies, which is not only
unconstitutional but discriminatory as well. When the Constitutional Courts
cannot come to the rescue of the public at large against the above said
societies. The Article has lost its utility. Article 4 is, in fact, a modified form
of "due process of law" as interpreted by the American Constitutional
Courts. This Article provides that rights of the citizens shall not be invaded
except by law, but the detention of the citizens by the Government agencies
without due process of law is not being adjudicated upon by the Courts
while the Courts are bound to protect the rights of the citizens against the
illegal detention. The citizens of Pakistan are being arrested and deported
without due process of law by the foreign agencies. The brutal killing of
Hayatullah Khan, correspondent of "Daily Nation", amounts to aggression
by the state; moreover it has frustrated the due process of law because extra-
judicial killing is the rule of the day.

6. The establishment is not conscious of the concept of the sovereignty

of nation. The Government cannot take any action without legal sanction
and at the same time the legislature cannot create any authority especially
when its actions are not subject to law. Any illegal exercise of jurisdiction
cannot be validated when a person has not been dealt with in accordance
with law but every regime has got validated its acts and omissions by
amending Article 270 of the Constitution. The Supreme Court has upheld the
judgment of the High Court that state land cannot be allotted to the
Government servants. The said judgment is reported in (Brig: Muhammad
Bashir case) 2004 PSC 453, but the said judgment has not been followed as
such executive authorities are not performing their duties in accordance with
law, subsequently, allotment of the land to the Government servants is not in
accordance with law. Thus it is apparent that due process of law is being
frustrated, as such, Article 4 of the Constitution has been made ineffective.

7. Loyalty to the State: Obedience to the Constitution and the law is the
basic obligation of every citizen. As envisaged by Article 244, "every
member of armed forces of Pakistan takes oath that he will uphold the
Constitution". But the Constitution was partially abrogated by General Zia-
ul-Haq subsequently twice by retired general Pervez Musharraf, thus,
violating the terms of oath. Present regime has also violated Article 5 of the
Constitution. The persons on the helm of affairs think themselves to be
above their respective oaths, thus failed to uphold the Constitution, as such,
they cannot claim loyalty to the state when they are not loyal to the
Constitution.

8. Article 6: Any person who abrogates, conspires or subverts the

Constitution shall be guilty of high treason and punishment is to be provided
by the Parliament. The High Treason Act of 1973 has been enforced on 29th
September 1973 (PLD 1974 Central Statute 34). Section 3 of the above said
Act provides the procedure where a complaint in writing can be made by a
person who is authorized by Federal Government in this behalf. Till today,
no person has been authorized by the Federal Government to lodge the
complaint, as such; this Article is ineffective due to administrative reasons. It
has been observed by the Supreme Court in PLD 1993 SC 473 at page 601
that under the Constitution, the Parliament has discharged its duty on
29.09.1973 by framing requisite law on the subject, but the Federal
Government has not so far designated the authorized person who can lodge
the complaint. It is not the Constitution but the executive has failed to give
meaningful operational machinery for the enforcement of Article 6, thus
frustrating this Article in letter and spirit. If this Article would have been
operational, nobody can dare to suspend or abrogate the Constitution.

9. Article 9: This Article envisages that any person cannot be deprived of

his life and liberty, therefore, detention of any person by the security
agencies amounts to violation of Article 9 of the Constitution. Many citizens
have been deprived of their liberty. They have been arrested and deported;
tried and executed, thus, deprived of their life and liberty, which was not in
accordance with law. Not only deportation of Aimal Kansi to America but
also many other citizens of Pakistan have been deported Guanta Namo
without due process of law and in violation of the above said Article as well.
Thus, the above said Article has practically become ineffective for the last so
many years due to the executive high handedness. Brigadier (Retd) Taj and
his family were insulted, abducted, humiliated by the member of an
Intelligence Agency (Dawn Daily 16 July 2006). Dr. Safdar Sarki and many
others were not traceable although he was subsequently recovered on the
direction of the Supreme Court of Pakistan, how we can say that any person
cannot be deprived of his life and liberty? We should not ignore the fake
police encounters, whereby, the citizens are put to death in this part of the
world without any trial by Court of law.

10. Article 10: This Article also safeguards the arrest and detention of the
citizens. The citizens are being illegally detained, thus the Fundamental
Rights guaranteed by this Article are frustrated. The detenue can file a
representation, and during the pendency of the representation the detention
period expires. Thus, the detenues are being deprived of legal remedies, and
they are debarred to seek the enforcement of Fundamental Rights through
the legislative process. Article 10 is ineffective due to the administrative
hurdles.

11. (Supreme Court of India has declared in AIR 1966 SC 239 (State of
MP Vs. Shuba Ram) that the right to defend the accused includes not only to
defend the citizens against the illegal arrest but legal advice should be
provided) but in the departmental inquiries the civil servants have been
denied the right to seek the assistance of the legal practitioners. Under Rule
8 of the Punjab Civil Servants E&D Rules, the civil servants cannot engage
or consult a legal practitioner; thus practically Article 10 has been frustrated
by incorporation of similar provision in the Civil Servants E&D Rules,
framed by the Central Government. These rules are violative of the
Fundamental Rights.
12. The delay on the part of the Government to consider the representation
was deprecated in writ petition and the detenue was released in India, when
any explanation for the delay was not forthcoming (AIR 1975 SC 367). But
in Pakistan representation has become a hurdle in the release of detenues
although the order of detention may be perverse thus practically nullifying
Article 10 of the Constitution.

13. Article 11: Provides safeguards against the trafficking in human beings
but unfortunately the girls and boys in Pakistan are being exported. The
citizens of this country are being plundered by the agents who are busy in
human trafficking and the Government has miserably failed to unearth the
said persons. And this culture has not been eliminated by the State which
resulted in negation of the Article 11 of the Constitution.

14. Article 12: The NAB Ordinance 1999 was enforced, wherein
according to Section 2, the Ordinance shall be deemed to have come into
force from the 1st January 1985, while the same violates Article 12 of the
Constitution; whereby any person cannot be punished when the act or
omission was not punishable by law at the time of such act or omission.

15. Although protection of Article 270 of the Constitution is being raised

as a defence but it has been observed by Mr. Justice Mian Nazir Akhtar
(minority view) in Shahida Faisal case (PLD 2000 Lah: 508) that
retrospective effect has been given to the NAB Ordinance 1999 while the
same is also violative of universal declaration of Human Rights, thus, from
the above said observations, it is apparent that Article 12 of the Constitution
has been frustrated and made redundant by the present regime.

16. Article 14: This Article declares that dignity of the man is inviolable
and privacy of the person is also inviolable as such the police raids on the
dwelling house are violative of Article 14. It is held in PLD 1993 SC 473
that the President can neither dissolve National Assembly nor he can dismiss
the Prime Minister and his Cabinet. The charge of subversion against the
Prime Minister is violative of Article 14. The speech of the Prime Minister
does not amount to subversion, because subversion being high treason, the
same is the most serious offence that can be committed against one's own
country. The President has no authority to pronounce such a findings.
Although subsequently the same Prime Minister has been removed in
violation of Article 14 of the Constitution. The dignity of Ex-Prime Minister
has been violated while he was expelled from the country.

17. Article 15 Extends protection to the freedom of movement of every

citizen of Pakistan. Supreme Court has declared in PLD 1987 SC 504 (Dada
Amir Haider Khan’s case) that application for the grant of passport cannot
be refused without giving an opportunity of being heard and it has been held
in PLD 1966 Dacca 576 that a right of a citizen to remain in Pakistan is an
unqualified right, and he cannot be banished from his country (Mustafa
Ansari case). It is also apparent from this Article that reasonable restriction
can be imposed upon the movement of dangerous persons and these
restrictions should not be arbitrary one. The Court can ascertain the
reasonableness of actions reference can be had from AIR 1954 SC 229. The
Supreme Court of Pakistan has declared in PLD 2004 SC 583 (Mian
Shahbaz Sharif case and subsequently in Nawaz Sharif case) that Article 15
of the Constitution bestows a right on every citizen of Pakistan to enter or
move freely throughout the country and to reside and settle in any part
thereof. The right to enter in the country cannot be denied but a citizen can
be restrained from going out of the country. It was held by the Supreme
Court of Pakistan in Shahbaz Sharif case that petitioner is a citizen of
Pakistan and has a Constitutional right "to enter and remain in the country".

18. In spite of the above observations of the Supreme Court, Mr. Shahbaz
Sharif as well as Mian Nawaz Sharif have not been allowed to enter in the
country and they have been deported from the country: thus this Article has
been frustrated by the present regime as such Article 15 has been defeated.
Even otherwise, the Charter of the Human Rights Declaration has been
vioalted and former Prime Minister of Pakistan has not been treated in
accordance with law and he has been deprived of the equal protection of law.

19. Article 16: Freedom of assembly is an essential element in a

democratic set up. The right to lead a procession is neither a right of
easement nor customary right but it is a Fundamental Rights. However, the
people of Pakistan, in spite of the so called democratic culture, cannot hold
independent meetings, and they cannot lead processions, and unwarranted
restrictions have been imposed by the administration upon such activities
resulting in the negation of Article 16.

20. Article 19 guarantees the freedom of speech and expression as well as

Fundamental Rights of freedom of press. In the Constitution of 1956
freedom of press was not specifically guaranteed. One cannot deny that a
free press stands as one of the greatest interpreter between the Government
and the people. Freedom of press implies a right to acquire information and
right to acquire information includes the right of access to the source of
information (AIR 1973 SC 106). The said right has been highlighted by the
Supreme Court of Pakistan in PLD 1993 SC 473. The right of citizen to
receive information can be inferred from the freedom of expression
guaranteed by the Article 19 of the Constitution. The Freedom of
Information Ordinance was promulgated on 10.01.1997, but the same
lapsed; even otherwise, the said Ordinance was not a big achievement. The
said Ordinance does not allow to receive information in respect of
appointment, promotion and dismissal of the Government servants while the
public has legitimate interest in appointment, promotion and dismissal action
of the civil servants and the judiciary. The citizens of this country have every
right to have access to the working of the Government. Subsequently,
Freedom of Information Ordinance was enforced on 26.10.2002. Even a
perusal of Freedom of Information Ordinance section 8 will reveal that
noting on file, minutes of the meeting and any inter medial opinion or
recommendation have been excluded from its purview. Thus the corruption
has been saved from its exposure to the public; unless and until the clause
'A', 'B' and 'C of section 8 are not deleted, the same are hurdle in the freedom
of information. While definition of public body in section 2 (h) is available,
the same has been restricted to ministers and attached departments of the
Federal Government, thus, Provincial Government, Autonomous Bodies
have been excluded from the purview of the Ordinance as well. There is no
justification to exclude the same because everybody is conscious that due to
pressure of the donor agencies, this Ordinance has been enforced but still the
executive has tried its best to exclude provincial ministries etc. from the
purview of Freedom of Information Ordinance. There is no justification to
frame separate laws for the provinces because this law was promulgated to
ensure the Fundamental Rights incorporated in Article 19 of the
Constitution. It will not be out of place to mention here that freedom of
information rules have been published in the year 2004. This Ordinance is
enforced to protect the wrong doers. A fine can be imposed upon the
complainant if the same is malicious, frivolous, false; thus, harassing and
humiliating the complainant especially when he is at the mercy of the
authority who will determine whether the application is malicious or
frivolous, even otherwise, many restrictions have been imposed upon the
media.

21. There is no such provision in the said Ordinance that classified record
will be declassified after 30 years, thus creating hurdle in the way of persons
who are in search of truth. The above said Freedom of Information
Ordinance does not fulfil the requirements of Fundamental Rights as
guaranteed by the Constitution, while the same frustrates the basic concepts
of the above said Article of the Constitution.
22. Article 24: After bare perusal of Articles 23 and 24 of the Constitution,
it will transpire that under Article 23 every citizen has a right to acquire,
hold and dispose of property, while under Article 24 no person can be
deprived of his property compulsorily, save in accordance with law, and the
property cannot be acquired except for public purpose. As such any person
cannot be deprived of his property, but generally, without acquiring the
property, the same is utilized and usurped by the state functionaries. It was
declared in 1997 MLD 1792 that when an owner of property was deprived of
his property without payment of compensation, penalty was imposed by the
High Court; as such, it is evident that tendency of depriving the citizens
from their property without due process of law is the rule of the executive
while administration does not care for the Constitution and they are acting in
an unwarranted manner. Thus, the above said Article of Constitution is being
violated and the poor citizens are helpless against these atrocities. It will not
be out of place to mention here that the word “Public Purpose" has also been
interpreted in 2003 PSC 1196 and citizens are being deprived of their if
properties for the undue advantage of the land grabbers and Article 24 has
been practically been negated by the administration.

23. Article 25 envisages that all the citizens are equal before law and they
are entitled to equal protection of law. Equality before law is not present in
this part of the World. Civilians and political workers/opponents are being
prosecuted under the NAB Ordinance, and protection has been extended to
the Generals and the judiciary. Thus the concept of equality before law has
been frustrated NAB Ordinance because majority of NAB infected persons
are the ruling elite.

24. In India allocation of 33% marks for oral interview at an examination

was declared as violutive of the equal protection of law in AIR 1981 SC 487,
AIR 1984 SC 1420 while in Pakistan seats are reserved in the educational
institutions for the privileged classes. The political workers are being
prosecuted under the NAB Ordinance and under Anti-Terrorist Act, 1997 but
the persons having political affiliation with the ruling JANTA are protected
by the administration. It is very strange that when it has been declared in
PLD 2000 SC 869 that Chief of Army Staff being a holder of Constitutional
post cannot be removed in violation of the principles of natural justice that
no one should be condemned unheard. Whether the elected Prime Minister
of Pakistan who is also holder of a Constitutional post can be removed in
violation of the principles of natural justice: thus, the equality before law has
been omitted from consideration. The time is not far when this controversy
has to be resolved and at least equality before law should be provided to the
Prime Minister who is also a holder of Constitutional post; thus this Article
has been omitted from consideration in Zafar AN Shah case.

25. Article 27: Prescribe that no citizen shall be discriminated while in the
service of Pakistan. In the present set up according to some sources 600
Army officials have been inducted in the civil service thus the civil servants
are being prejudiced and discriminated due to this induction. They are
compelled to survive as OSD and Army officials are being inducted while
frustrating Article 27.

26. Article 35: (Protection of family life): The state is bound to protect the
matrimonial life of the families and state is bound to safeguard this
Fundamental Rights but the said rights are being violated by the police.
Knowingly that the girl is married to another person, despite the decision of
Full Bench case (Hafiz Abdul Waheed Vs. Asma Jilani) reported in PLD
1997 Lah: 301 which has been upheld by the Supreme Court in PLD 2004
SC 219, still Family Courts Act has not been amended and power of
registration of marriage has not been conferred upon the Family Courts.
Thus state has failed to protect family life of the citizens, resulting in the
violation of Article 33.

27. Article 37 envisages that state shall arrange for the technical,
professional education to all on the basis of merits but the poor students are
being deprived of their access to higher education due to introduction of
self-finance scheme. The children of middle and poor class have been
deprived lived of the right of professional education due to poverty.

28. Double standard of education has been introduced which is clearly

violative of Article 37 of the Constitution and the students of wealthy class
and high ups are getting better opportunities through the walk in interviews
while the other citizens of this country are not provided with equal
opportunity in higher professional education as well as in jobs.

29. Article 37(d) envisages inexpensive and expeditious justice. Despite

the decision of the Federal Shariat Court, PLD 1992 FSC 195, still the Court
fee is being recovered. Thus concept of inexpensive justice is jeopardized
and frustrated. The orphans and widows are unable to have access to justice
due to non-payment of Court fee: who is responsible for it?

30. So far as expeditious justice is concerned, despite this fact that

Pakistan has obtained soft loan of 3.5 billion from the Asian Development
Bank, still the Courts have failed to provide expeditious justice. The same
has resulted in the improvement of standard of buildings and Court rooms
but the same has not resulted in the disposal of cases in expeditious manner.
The Courts as well as legislation have failed lo fulfil Constitutional
requirements.

31. So far as Article 37(b) is concerned, the education is expensive and

rate of illiteracy in Pakistan is higher in whole of the South East Asia and we
are spending very meager amount for the elimination of illiteracy while we
are spending billions on the unproductive construction of GHQs and
cantonments. We are unfortunately spending huge amounts upon the VIP
culture, which is evident from the purchase of bullet proof cars. We should
have arranged inexpensive free education. But this principle of policy is
being overlooked.

32. Article 38: The state shall care for the well being of the people and
facilities should be provided for livelihood within the available sources of
the country: but millions of people of Pakistan are deprived of their
livelihood under the garb of golden shake hand. The state is exploiting the
situation, four years back Trading Corporation of Pakistan purchased sugar
from the Mills at the rate of Rs.17 per kg and it was sold to the public at
Rs.30 per kg. Similarly, prices of Petrol and diesel as well as natural gas are
exorbitant. The local manufactured cars are very expensive due to
collaboration of the establishment. The social and economic well being of
the people has never been kept in view and the poor citizens are victim of
exploitation by the administration. The opportunities have not been provided
to the people within the available resources of the country. The common
man has been squeezed. The middle class has been eliminated and has fallen
into the lap of poverty. The unnecessary expenses on VIP culture should be
curtailed, then a lot of money will be available for the welfare of the poor
man.

33. Article 38 (a): envisages that "the concentration of the wealth will be
prevented. It has been held in PLD 1992 Lah: 277 that concentration of
wealth in few hands must be avoided. It has been declared by the Supreme
Court in 2004 PSC 453 that we have no hesitation in our mind that land
cannot be allotted to any person who is in service of Central/Provincial
Government, any development authority, Semi-Government, Institution and
Local Bodies": as such, allotment of land to the Generals is unwarranted.
But in spite of the above said decision the land is being allotted to the
Generals thus frustrating the clause (a) of Article 38, whereby, the wealth is
being concentrated in a class. Objectives of Article 38 can only be achieved
and concentration of wealth can be prevented when the prices of the
commodities come out to affordable prices:-

i) When the corruption will not be validated and the same will be
unearthed.

ii) When legal cover to the corruption will be withdrawn.

iii) Allotment of land and plots to the Generals will be stopped and
these resources will be utilized for the masses, otherwise, this Article is
ineffective: The same may be deleted from the Constitution due to its
ineffectiveness.

34. Article 38 (e): The state shall reduce disparity in the income of earning
of individuals, but in Pakistan certain individuals are receiving exorbitant
remuneration and the services of subordinate staff are terminated and they
are being hanged at the altar of golden shake hand: as such, millions of
employees have been deprived of their livelihood. Article 38 (e) also
narrates that state shall eliminate RIBA but after the remand of the case by
the Supreme Court, Federal Shariat Court has failed to perform its
Constitutional functions The state has failed to eliminate RIBA: thus Article
38 (e) has become redundant.

35. Article 63: In view of the rule laid down in PLD 1995 Lah: 541 (Ch.
Iltaf Hussain case), this Article has become redundant because at the time of
the filing of nomination papers, disqulaification cannot be kept in view and
only qualification can be taken into consideration. This rule of law has been
approved by the Full Bench (PLD 1998 Lah. 461, Mr. Rafique Tarrar case)
whereby the question of disqualification cannot be considered at the time of
filing of nomination papers; the same has resulted in the redundancy of this
Article because now a disqualified person can be elected. These judgments
have paved the way for unconstitutional protection to the violaters of the
constitution, on the other hand it has been held in PLD 2002 Lah: 521 (Umar
Ahmad Ghumman case), "the disqualification comes into play the moment a
person becomes a candidate or seeks election". It was also held in 1995 CLC
158 that Haji Aman Ullah Khan petitioner was an employee of Afghan
Refugee Foundation as such he cannot contest the election within bar of two
years. It is held in 1993 MLD 2489 that Article 62 and Article 63 are
interlinked and have to be read together and not in isolation. Abida Hussain
was an Ambassador on contract basis as such she was disqualified to contest
the election. The above interpretation has resulted to negate this Article.
Thus, the Supreme Court of Pakistan was penalized and scraped when the
Court was interpreting Article 63.

36. Article 63(a): The Speaker has refused to entertain the

recommendation of the parliamentary party in respect of the some members
who were said to have defected their parliamentary party. The Speaker
turned down the reference on the ground that he could not recognize the
leaders of the parliamentary party, in this way, the government has frustrated
the above said Article 63(a) of the Constitution. It will not be out of place to
mention that in Pir Ghulam Sabir Shah case PLD 1995 SC 66, if the above
said menace of horse trading would have been eliminated, the government
should not have dared to frustrate defection clause. "Lota Political Culture"
is flourishing and the Constitution is sinking. The members of the opposition
were persuaded and they have been shifting their loyalties. Thus the said
Article has practically lost its efficacy.

37. Article 63 (1)(k): clearly transpires that a person who is in service of

Pakistan cannot be elected as member of the Parliament; as such, Pervez
Musharraf cannot be elected as President of Pakistan, unless and until, the
said Article is not amended. Through the subordinate legislation this Article
of the Constitution cannot be frustrated. General Pervez Musharraf was
holding the office of Chief of Staff thus he has practically negated this
Constitutional provision. Disqualification on the ground of defection has
also been negated by the Speaker of Punjab Assembly.

38. Articles 78 & 118: It is essential feature of the democratic government

to control the public tunds. It is the duty of the government to receive and
recover the taxes and other amounts and the same should be accounted for in
the public exchequer. It may be pointed out that certain public money
generating institutions are not being controlled under the Constitution, which
amounts to a state within state.

39. Defence Housing Authorities have been exempted from the

registration of the sale-deeds and the said Authorities are recovering the
exorbitant fee from their members and utilizing the same. The armed
personnel are performing their duties in F.W.O, LAFCO and NLC. Whether
earnings of the said Authorities are becoming the part of the public
exchequer and whether they are accounting for their expenditure as such
Constitutional provisions in this behalf are being violated.

40. Article 175 (2): provides that any Constitutional Court shall not have
jurisdiction unless it is conferred by the Constitution or under any law. The
Constitution can only be amended by the parliament under Articles 238 and
239 of the Constitution and the Constitution can only be amended if not less
than 2/3 members of the total house pass the Constitutional amendment bill,
thus the powers for the amendment of the Constitution can neither be
exercised by any Court nor by any individual: but the powers of the
amendment of Constitution has been conferred by the Supreme Court of
Pakistan in Zafar Ali Shah case PLD 2000 SC 869 and subsequently in 2007
ignoring Article 175(2) of the Constitution.
41. Article 175(3): The judiciary has been separated from the executive
keeping in view the rule laid down by the Supreme Court in Sharaf Faridi
case, PLD 1994 SC 105. The said Article is a self-operating provision of the
Constitution and separation has taken place since August 1987, while
keeping in view the direction by the Supreme Court, the process of
separation has been implemented, as such, Article 175(3) is a past and closed
transaction and is no more required for future guidance.

42. Article 203(d), (3-a): This clause was introduced when the Parliament
was not in existence. Now the laws cannot be amended by the President or
the Governor. Laws can only be amended by the Parliament as such this
clause is liable to deletion being superfluous one.

43. Article 212: The unfettered and unrestricted powers of the executive to
appoint Chairman and members of the Service Tribunal is affecting the
independent functioning of the tribunals, because members of the tribunals
carry a sense of obligation to the executive for having been appointed by
them. The appointment of the members and the Chairman has prejudicial
effect on the independence of the tribunal. Secondly, as envisage by the
proviso of Section 4 of the Service Tribunal Act, 1973 an appeal does not lie
to the tribunal unless the aggrieved person has preferred an appeal,
application, review or representation before the concerned authority and a
period of 90 days has not expired, thus, the aggrieved persons have been
deprived of any legal remedy till the expiry of 90 days which amounts to
denial of justice through the subordinate legislation. The aggrieved persons
cannot be deprived of right of judicial review for this long period of 90 days.
Even otherwise, the Service Tribunal has no original jurisdiction, as such,
the Article 212 and the law enacted by the legislature has practically
frustrated the right of judicial review available to the aggrieved persons
under Article 199 of the Constitution.
44. Article 230(4): The Islamic Ideology Council shall submit its final
report within 7 years of its appointment. The Constitution was enforced in
1973. Islamic Ideology Council has failed to submit its final report within
stipulated period. Such report has not been laid before the Parliament within
the requisite period nor the laws have been amended in accordance with the
final report, as such, it is a mockery with Constitution to retain such
provision which is ineffective.

45. Articles 238 & 239: Prescribe the procedure for amendment of the
Constitution. Only Parliament can amend the Constitution while the
Constitution cannot be amended by votes of less than 2/3 majority of the
total members of the House. The said Article does not confer powers upon
Supreme Court lo allow an individual to amend the Constitution: thus, the
said Articles have not been kept in view while granting permission to amend
the Constitution to the Chief of Staff in Zafar Ali Shah case, PLD 2000 SC
869 and subsequently by the newly inducted judges in 2007.

46. Article 244: This Article envisages that every member of armed forces
of the Pakistan takes oath prescribed in the III Schedule. Oath prescribed in
the Schedule clearly envisages that the deponent shall not be engaged in the
political activities: But needless to mention that the then Chief of Staff was
busy in the political activities, thus, frustrating his oath under Article 244 of
the Constitution. Engineer Jamil Malik was dismissed from service on this
ground that he is a government servant and is involved in political activities.
His order of dismissal was upheld by the Supreme Court in PLJ 2004 SC
108, but in violation of this judgment former Chief of Staff is busy in the
political activities. This attitude is haunting the public at large.

47. Article 253: envisages that the Parliament can prescribe maximum
limit of property that can be owned, possessed or controlled by any person,
but the land Reforms were declared to be against the injunctions of Holy
Qur'an and Sunnah in PLD 1990 SC 99; as such, this Article was practically
omitted from consideration. Now any person can retain unlimited holding.
This Article of the Constitution has become ineffective due to above said
judqment.

48. Article 270(c): is a new proivsion and the same was incorporated
through Legal Frame Work Order, 2002, whereby, the Judges of the
Constitutional Courts having taken oath under Oath of office (Judges) Order,
2002, the oath was validated. But on the other hand, the Judges who were
not given the oath they were not allowed to be restored. Nothing can be said
more than this that the amendment has frustrated the independence of
judiciary, even otherwise, the same is a stigma upon the Constitution and the
same should be deleted.

49. The self serving amendments have altered the basic structure of the
Constitution and the same has been mutilated by the rulers. The biggest
failure of the rulers is to develop a national consensus on workable
framework and the Constitution has lost its sanctity.

50. According to the Laski's theory, the control of Armed Forces is an

essential element of sovereignly of the state and the Armed Forces are under
command of the state. Once the state loses the command it becomes
ineffective and must either change the law or abdicate it.

51. Only democracy can provide economic dividends to the people. Now
the people are suffering because we have failed to evolve a system of good
governance. We should follow the Constitution for achieving the welfare of
the people.
52 No doubt, the Constitution is a document for all times to come which
flourishes with the passage of time and in accordance with the requirements
of the society. The Constitution is a permanent document. Thus it is essential
that undemocratic amendments should be omitted from it.