CONSTITUTIONAL PROBLEMS

What is a constitution?
A constitution is the aggregate of fundamental principles or established
precedents that constitute the legal basis of a polity, organization or other
type of entity and commonly determine how that entity is to be governed.
Origin of constitution:
The general idea of constitution and of constitutionalism originated with the
ancient Greeks and especially in the systematic, theoretical, normative and
descriptive writings of Aristotle.
Sources of constitution:
Following are the main sources of a constitution;
 Opinions of political and constitutional writers
 Constitutions of other countries
 Customs and conventions
 Previous constitutions
 Decisions of a constituent assembly
 Judicial Precedents
Process of growth:
Every constitution grows with a passage of time. It means that the rules of
constitution have a Darwinian character. James McIntosh and Sir Henry
Maine recognize this fact when they hold that a constitution is not made, it
grows. While constitution building requires patience, the threat of violence
may mean that particular issues have to be addressed quickly. Peace
process time frames and milestones can override spreading awareness
among the citizens and encouraging civic debate on constitutional
solutions, as happened in Iraq (in the process of leading up to the
constitution of 2005).
Functions of a constitution:
It provides for the independence of each organ, i.e. legislative, executive
and judiciary. It upholds the sovereignty of a nation. It acts as a check in
maladministration and misuse of powers. It provides for the accountability
of government to the people of the country. A constitutional document lays
down the framework that demarcates fundamental political code,
structures, procedures, powers and duties of government institutions and
sets out fundamental rights, directive principles, and duties of citizens.
Scope and importance:
A constitution is important because it ensures that those who make
decisions on the behalf of the public fairly represent public opinion. It also
set out the ways in which those who exercise power may be held
accountable to the people they serve. It determines the relationship of the
citizens with governments. It protects and provides the basic rights to all
citizens of the country. It specifies on how the government would be
elected and who will have the power and the responsibility to take
important decisions.
Constitution and democracy:
Democracy helps citizens to choose their leaders to run the government by
free and fair elections. Democracy provides equal rights among citizens on
the basis of caste, religion and enhances the quality of decision-making
and also improves the dignity of citizens. Democracy, by its nature, is a
collective decision-making institution that prevents single individuals from
making decisions for the group. Democracy has endured in part due to its
ability to accommodate change from below through expansion of voting
rights, and greater protection of civil liberties.
The Constitution shows democracy in such a way that it establishes a
federal democratic republic form of government. It is a democracy because
people govern themselves. It is representative because people choose
elected officials by free and secret ballot. As for India, the preamble to the
Constitution declares India to be a Sovereign Socialist Secular Democratic
Republic and a welfare state committed to secure justice, liberty and
equality for the people and for promoting fraternity, dignity of the individual
and unity and integrity of the nation.
What is a constitutional crisis?
In political science, a constitutional crisis is a problem or conflict in the
function of a government that the political constitution or other fundamental
governing law is perceived to be unable to resolve. For instance, one
describes it as the crisis that arises out of the failure, or at least a strong
risk of failure, of a constitution to perform its central functions.
Causes of constitutional crisis:
The crisis may arise from a variety of possible causes. For example, a
government may want to pass a law contrary to its constitution; the
constitution may fail to provide a clear answer for a specific situation; the
constitution may be clear but it may be politically infeasible to follow it; the
government institutions themselves may falter or fail to live up to what the
law prescribes them to be; or officials in the government may justify
avoiding dealing with a serious problem based on narrow interpretations of
the law.
Constitutional crises may arise from conflicts between different branches of
government, conflicts between central and local governments, or simply
conflicts among various factions within society. In the course of
government, the crisis results when one or more of the parties to a political
dispute willfully chooses to violate a law of the constitution; or to flout an
unwritten constitutional convention; or to dispute the correct, legal
interpretation of the violated constitutional law or of the flouted political
custom
Main constitutional issues:
Following are the main constitutional crisis that can arise in any country:
 Amending the constitution
 Voting rights
 Bureaucracy
 Time span of governments
 Changes in reforms and implementation methods
 Social advancements
 Judicial ad cultural reforms
 Freedom of expression
 Due process and right to counsel
Constitutional problems worldwide:
Specific examples include the South African Colored vote constitutional
crisis in the 1950s, the secession of the southern U.S. states in 1860 and
1861, the controversial dismissal of the Australian federal government in
1975 and the 2007 Ukrainian crisis. While the United Kingdom of Great
Britain and Northern Ireland does not have a written constitution, it is
deemed to have an unwritten one, and issues and crises in the UK and its
constituent countries are described as constitutional crises.
Egypt:

Egypt experienced a constitutional crisis when President Hosni

Mubarak was removed in the Egyptian Revolution. The country was left
without a president until President Mohamed Morsi was elected and then
again when Morsi was arrested by the Egyptian Armed Forces in a 2013
coup d'etat until President Abdel Fattah el-Sisi took office.

Current situation:

The politics of Egypt are based on republicanism, with a semi-presidential

system of government. The current political system was established
following the 2013 Egyptian military coup d'état, and the takeover of
President Abdel Fattah el-Sisi. In the current system, the President is
elected for a six-year term.

England:

The 1215 Barons' revolt against the rule of King John, which led to
the Magna Carta. Immediately, John repudiated Magna Carta, leading to
the First Barons' War.

The English Reformation: Pope Clement VII's refusal to annul King Henry

VIII's first marriage with Catherine of Aragon impeded the king's efforts to
produce a male heir. Henry repudiated the Pope's ecclesiastical authority
within England and required all officials to recognize him as Supreme Head
of the Church of England, allowing him to divorce Catherine and
marry Anne Boleyn.
King Charles I's insistence on the Divine Right of Kings, manifest in
his Personal Rule from 1629 to 1640, and leading directly to the Wars of
the Three Kingdoms.

The Glorious Revolution of 1688–89: The flight of King James II/VII from

the country left no king in his place to rule England or Scotland or to
summon a Parliament. When King William and Queen Mary jointly replaced
him there was therefore no legally recognised Parliament to legitimise their
irregular succession to the throne. This led to the Crown and Parliament
Recognition Act 1689.

Current situation:

Currently, Parliamentary sovereignty is commonly regarded as the defining

principle of the British Constitution. This is the ultimate law-making power
vested in the UK parliament to create or abolish any law.

France:

The Brittany Affair of 1765: The king's court in Brittany forbade collection of

taxes to which the provincial Estates did not consent. After King Louis
XV annulled the court's decree, most of its members resigned. The chief
prosecutor, Louis-René de Caradeuc de La Chalotais, was accused of
writing letters denouncing the king's action and charged with treason. A
court convened to try La Chalotais reached no conclusion due to questions
of jurisdiction and the weakness of the evidence. The king then transferred
the case to his own council, further inflaming fears of absolutism to the
point that he was obligated to release La Chalotais and yield to the
provincial authorities.

The 16 May 1877 crisis: President Patrice de Mac-Mahon dismissed Prime

Minister Jules Simon and named Albert de Broglie to replace him.
The National Assembly refused to recognize the new government and a
crisis, which ended with the dissolution of the Assembly and new elections,
ensued.

Current situation:

The current Constitution regards the separation of church and state,

democracy, social welfare, and indivisibility as core principles of the French
state.
Germany:

In the Weimar Republic, for several years the country was governed with
the help of enabling acts and emergency decrees. The crisis became
dramatic in 1932, when the Nazi Party and Communist Party of
Germany had together a majority in the Reichstag. Any government,
installed by the Reich President, was likely to be dismissed by the
parliament. The crisis ended in a Nazi and conservative coalition
government and then Nazi dictatorship. The Weimar Constitution was not
abolished, but weakened to the point of irrelevance.

In 1962 Spiegel affair, Franz Josef Strauss, Federal Minister of Defense,

tried to repress media freedom with governmental resources and
accused Der Spiegel employees of treason after an article exposed
the Fibag scandal. In 1966, Federal Constitutional Court of
Germany issued a groundbreaking ruling concerning freedom of the press.
The incident caused the first mass demonstrations and public protests and
helped Germany remove many authoritarian features still retained following
the end of World War II, marking a turning point in Germany values as
ordinary people rejected authoritarian outlook in favor of democratic
values.

Current situation:

Germany is a representative democracy with a vibrant political culture and

civil society. Political rights and civil liberties are largely assured in law and
practice. The political system is influenced by the country's totalitarian past,
with constitutional safeguards designed to prevent authoritarian rule.

Russia:

The constitutional crisis of 1993: a conflict between Russian

President Boris Yeltsin and the Russian Supreme Soviet led by Ruslan
Khasbulatov. It emerged due to disagreements regarding the demarcation
of political authority. Russian leaders agreed to hold a referendum in April
1993 that would determine whether the presidency or the parliament would
be the dominant institution in the Russian political system.[17] The
parliament temporarily reneged on its commitment to a referendum and it
prompted Yeltsin to issue a decree giving the president more authority.
This was met with resistance even from among figures within the executive
department such as Yurii Shokov, chair of the president's Security
Council and Aleksandr Rutskoy, Yeltsin's Vice President.[17] Anticipating
impeachment, Yeltsin dissolved the parliament on September 21, 1993 and
called for fresh elections.[18] The president did not have the constitutional
authority to do this and the Constitutional Court promptly ruled that the
decree was unconstitutional.[18] This resulted to ten days of street fighting
between the police, pro-parliamentary demonstrators, and groups loyal to
the president.[19] Aleksandr Rutskoy was sworn as the acting President of
Russia for a few days. The crisis ended after a military siege of the Russian
White House, which claimed 187 lives.

Current situation:

The current Constitution is the second most long-lived in the history of

Russia, behind the Constitution of 1936. In the Russian Federation human
and civil rights and freedoms shall be recognized and guaranteed
according to the universally recognized principles and norms of
international law and this Constitution

United Kingdoms:
While the United Kingdom of Great Britain and Northern Ireland does not
have a written constitution, it is deemed to have an unwritten one, and
issues and crises in the UK and its constituent countries are described as
constitutional crises.

The regency crisis of 1788: A new Parliament convened while King George

III was unable, due to illness, to charge it with its responsibilities or assent
to any bills. Parliament nonetheless submitted an irregular bill that provided
for George, Prince of Wales, to act as regent, and the Lord Chancellor Lord
Thurlow affixed the royal seal to it without the king's signature. This
precedent was repeated in 1811 after the king again fell ill.

The House of Lords's rejection of the 1909 People's Budget, a proposal

by Chancellor of the Exchequer David Lloyd George and President of the
Board of Trade Winston Churchill entailing welfare reforms funded by taxes
on landowners. This caused a two-year impasse, which ended after
the Liberal Party won the January 1910 general election and the House of
Lords ratified the law. However, the impasse resumed when Prime
Minister H. H. Asquith introduced the Parliament Act permanently removing
the House of Lord's veto over money bills and sharply limiting its veto
over public bills, which the House of Lords blocked after the December
1910 general election ended in a hung parliament. King George V finally
forced the House to ratify the law by threatening to end its Conservative
majority by appointing hundreds of new peerages.[27][28]

The 1936 Edward VIII abdication crisis, when King Edward VIII proposed to

marry divorcee Wallis Simpson against the advice of his ministers. This
was unacceptable to the leaders of the United Kingdom and
the Dominions because Simpson was twice divorced and the Church of
England, which Edward nominally served as the head of,
forbid remarriage of divorcees if their spouses were still alive. Rather than
ending their relationship the King chose to abdicate and his brother
assumed the throne as King George VI.

The 2019 British prorogation controversy in October 2019, where

the Government of Conservative Prime Minister Boris
Johnson advised Queen Elizabeth II to prorogue the British Parliament for
five weeks. The decision was taken during contentious parliamentary
debate over the United Kingdom's impending withdrawal from
the European Union. In the unanimous R (Miller) v The Prime
Minister and Cherry v Advocate General for Scotland decisions,
the Supreme Court of the United Kingdom unanimously found the
prorogation to be illegal as preventing the ability of Parliament to carry out
its constitutional functions without reasonable justification.

Current situation:

The UK is often said to have an 'unwritten' constitution. This is not strictly

correct. It is largely written, but in different documents. But it has never
been codified, brought together in a single document. The main features of
the UK constitution is that it is uncodified; flexible; traditionally unitary but
now debatably a union state; monarchical; parliamentary; and based on a
bedrock of important constitutional doctrines and principles: parliamentary
sovereignty, the rule of law, separation of powers, etc.

Constitutional problems of the Islamic republic of Pakistan:

Indian independence act:

When Pakistan came into being, the interim constitution was enacted with
the amalgamation of Indian Act of 1935 and the Indian Independence Act
of 1947. The members of Central Legislative Assembly who won the
election of 1945-46 from the areas of the newly independent state of
Pakistan also took oath as members of the legislative assembly of the new
country.

Early problems in constitution making:

The first and foremost task which was entrusted to the new constituent
assembly of the country was to frame a new constitution of Pakistan.
Unfortunately, the first constitution of Pakistan was carved in 1956 after the
nine years of its creation till that date the country was run on an Adhoc
basis for that period.i Similarly, the early demise of Quaide-Azam
Muhammad Ali Jinnah, the founder of Pakistan, in 1948 followed by the
murder of Khan Liaqat Ali Khan the first Prime Minister of Pakistan created
a leadership vacuum in the country. Along with other problems including
immensity of coming refugee, lack of mutual trust between East and West
Pakistan, misunderstanding about the role of Islam in the state affairs, the
interference of bureaucracy became the main hurdle in the smooth
functioning of the political system of Pakistan. In a span of about nine
years, seven prime ministers were changed, and two Governor-General
and two presidents were also changed. This time and again, frequent
change in the governments and the polemics of politicians did not allow the
system to work as envisaged by its forefathers.

Stumbling blocks in constitution making:

An important problem after the creation of Pakistan was the drafting of a

constitution which should be according to the ideological basis and needs
of the current circumstances. This task could not be accomplished as long
as 1956 due to multi factors on which there was acute polarization in
society. Besides, certain problems were unnecessarily exploited and made
complicated. The causes of delay in the constitution-making are mentioned
below;

 Federal issue
 Selecting the form of government
 Linguistic issue
 Role of politicians
 Differences on Islamic way of democracy
 The issue of quantitative representations
 Electoral method
The fiasco of 1957 constitution:

A decade is too brief a span in the history of a nation to judge the success
or failure of a system. Although the constitution of 1956 successfully
resolved three important problems of constitution-making, the extent of
provincial autonomy, the Islamic Provisions and the separation of power
between Prime Minister and President. However, in the absence of well-
articulated Political parties, the period following the promulgation of the
constitution did not lead to political stability. Governments rose and fell in
rapid succession. The longest period of the office being that of Prime
Minister of Pakistan, Hussain Shaheed Suharwardy, was for just over one
year. On 7 October 1958, less than three years of its promulgation, the
abrogation of the constitution of 1956 proclaimed by the martial Law of
President Iskandar Mirza. The proclamation stated that the constitution was
unworkable.

Following were the main reasons of its failure:

 Undue interference by president in politics

 Parity between east and west Pakistan
 Demand for maximum autonomy for provinces
 Lack of organization and discipline

Failure of 1962 constitution:

After 9 years of hard labor Pakistan was able to have first compact
constitutional document. But due to many factors this could not last for long
span of time and at last Martial Law was imposed and the constitution was
abrogated by Gen. Ayyub Khan who appointed a constitutional commission
to frame a new constitution. Under the new constitutional arrangement,
autocratic military polity came into operation and many new political
innovations were experienced. But this one-man military and political
drama of Ayub flopped in the end and the Gen was compelled to hand over
power to new General. With the departure of Ayyub from the political scene
of Pakistan, his peculiar constitution also departed with him.

Following were the main reasons behind its failure:

 It was not a popular constitution

 President dictatorship
  Absence of checks and balances
 Nominal provincial autonomy
 Indirect system of elections
 Absence of fundamental freedom
 One party rule
 Dark aspects of basic democrats
 Promotion of secularism

Present constitution of Pakistan:

The present Constitution is the third constitution of the country which was
drafted and passed by the National Assembly of Pakistan on April 10,
1973. It was authenticated by the president on April 12, 1973 and enforced
on August 14, 1973. 

Salient features of 1973 constitution:

 A written constitution
 Flexibility
 Republican form of government
 Federal form of government
 Parliamentary form of government
 Bicameral legislature
 Fundamental rights
 Pakistan to be a welfare state
 Independence of judiciary

2022 Constitutional Crisis of Pakistan:

A political and constitutional crisis emerged in Pakistan from, 3 April 2022
to 10 April 2022 when, National Assembly's Deputy Speaker Qasim Khan
Suri dismissed a no-confidence motion against Prime Minister Imran
Khan during a session in which it was expected to be taken up for a vote,
alleging that a foreign country's involvement in the regime change was
contradictory to Article 5 of the Constitution of Pakistan.[1] Moments later,
Khan stated in a televised address that he had advised President Arif
Alvi to dissolve the National Assembly. Alvi complied with Khan's advice
under Article 58 of the constitution. This resulted in the Supreme Court of
Pakistan (SCP) taking a suo moto notice of the ongoing situation, creating
a constitutional crisis, as effectively, Imran Khan led a constitutional coup.[2]
[3][4][5]
 Four days later, the SCP ruled that the dismissal of the no-confidence
motion, the prorogation of the National Assembly, the advice from Imran
Khan to President Arif Alvi to dissolve the National Assembly and the
subsequent dissolution of the National Assembly were unconstitutional, and
overturned these actions in a 5-0 vote. The Supreme Court further held that
the National Assembly had not been prorogued and had to be reconvened
by the speaker immediately and no later than 10:30 a.m. on 9 April 2022.
On 9 April, the National Assembly was reconvened, however the motion
was not immediately put to a vote. The session went on all day but the
voting did not begin. Shortly before midnight, the speaker and the deputy
speaker both resigned.
Shortly after midnight on 10 April, the National Assembly voted and passed
the no-confidence motion with 174 votes, a majority, removing Khan from
office. and making him the first prime minister in Pakistan to be removed
from office through a no-confidence motion.
Reasons for unstable constitutionalism in Pakistan:
Political instability:
The instability of government, inefficiency of political parties, and a weak
political culture create the scenario for a politically instable state. Political
instability has become a serious problem especially for the developing and
underdeveloped countries. This problem is associated with a series of
problems in various fields. The problem of political instability generates
more serious for a society which is multi ethnic, having people of diverse
cultural attributes. Same is happening with Pakistan at the very moment! Its
political parties only work for their own personal interests and the officials
are always brawling with each other with no awareness of common man’s
issues.
Lack of proper governance and vigilance:
The institutes of Pakistan lag behind in maintaining proper check and
balance on the general public in fulfilling all the rules and regulations and
abiding by the state laws. As a result, people show irresponsible behavior
and negligence towards the rights of others, resulting in disputes, breaking
law and order.
General unawareness:

The general public is totally unaware of the real shape and structure of its
constitution and follows irrationally whatever is told on the media whether
true or false. Due to illiteracy and lack of cognizance, they are completely
blindfolded and cannot even see the truth.

Personal interests vs national interests:

People have prioritized their personal interests over national interests and
as a result the individuals are gaining more and more ant the state is
moving rapidly towards a decline. Law and order is not maintained, and
there is always a wave of restlessness and instability in the state.

Heteronomy of justice:

Justice delayed is justice denied! But what happens here in this state of
Pakistan is that the guilty is breathing freely on bails and the innocents are
being captivated in prisons for years. Even a simplest case takes months to
proceed. The roots of liability of justice are so deteriorated that a common
man is afraid of going to courts. In such a state where the constitution is
based on Islamic principles and provisions, the basic pillar of Islam, justice,
is coming down to earth.

Effects of constitutional crisis on a country:

When the crisis arises because the constitution is legally ambiguous, the
ultimate resolution usually establishes the legal precedent to resolve future
crises of constitutional administration. Such was the case in the United
States presidential succession of John Tyler, which established that a
successor to the presidency assumes the office without any limitation.
Politically, a constitutional crisis can lead to administrative paralysis and
eventual collapse of the government, the loss of political legitimacy, or
to civil war. A constitutional crisis is distinct from a rebellion, which occurs
when political factions outside a government challenge the government's
sovereignty, as in a coup d'état or a revolution led by the military or by
civilians.