Pakistan has been a democratic country since its formation. Pakistan’s first constitution was enacted by the Constituent Assembly in 1956. It followed the form of the 1935 act, allowing the president far-reaching powers to suspend federal and provincial parliamentary government. In 1958 the constitution was abrogated, and martial law was instituted. A new constitution, promulgated in 1962, provided for the election of the president and national and provincial assemblies by something similar to an electoral college, composed of members of local councils. Although a federal form of government was retained, the assemblies had little power, which was, in effect, centralized through the authority of governors acting under the president.
In 1973, a new constitution was introduced which was also a parliamentary form of government, the President and Prime Minister shared the powers, in which president was the head of the state and prime minster was head of the government and elected thorough the parliament. There has been a long running debate regarding the form of government in the country.
This debate came in the discussion after a petition filed in the Supreme Court seeking a direction to the prime minister to hold a referendum for changing the political system of the country and shifting to a presidential form of Government. The petition seeks such a referendum on the basis that the fundamental rights of the people provided under Chapter 1 of Part II of the Constitution were being infringed upon by the failure of the present parliamentary form of the government to deliver for their welfare and wellbeing and progress in different fields of life. Such debates also were in discussion in the past when the 18th and 21st amendments were reviewed by the courts on basis of infringement of salient features of the constitution.
Firstly, the doctrine of “basic structure” which was firstly developed by the Indian courts and later on recognized by the Pakistani courts in the Mehmood khan Achakzai Case. The concept of “basic structure” is that the constitution of the country holds some salient feature which includes federalism, a parliamentary form of government, fundamental human rights, Islamic provisions, and independence of the judiciary and such salient features are untouchables and cannot be amended even through a constitutional amendment with 2/3rd majority. These features are so important, fundamental, and inevitable that even parliament has no right to modify or destroy them through any constitutional amendment. This doctrine was developed by the Indian courts in the landmark judgment of I. C. Golak Nath Vs. State of Punjab in which the court limits the power of the parliament to amend the constitution to the extent of the basic structure of the constitution. This jurisprudence was also adopted by the Pakistani courts in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan in which the court held that representative form of government, the Islamic concept of democracy, and independence of the judiciary as the basic structure and salient feature of the constitution although the court was reluctant to strike any constitutional amendment down on the basis of it.
However, this issue was raised in a number of cases in front of the courts during the cases against 18th and 21st constitutional amendments upon which courts decided that even though a basic structure exist, these amendments were not in violation of the basic structure and the court refrained from striking down these amendments. There is also a view that only the constituent assembly of the country unanimously bring changes in these salient features of the constitution.
Moreover, if we observe closely that in Article 48(6) it is the call of the prime minister to hold a referendum on any national important issue and refer to joint-sitting of the parliament to approve for the referendum in the form of question answered either “Yes” or “No”. Article 239 of the constitution also empowers the parliament to make any amendment in the constitution without any limitation on it.
If we take into account the correct procedure in the light of the above-discussed doctrine of “basic structure” and salient features of the constitution we could maintain that the present assembly cannot bring any amendment to shift or change the parliamentary form of government into a presidential or any other form of government. For such change or shift, there must be an establishment of a constituent assembly which have the mandate of the people to bring changes in the structure and salient features of the constitution or the current assembly after the referendum by the people upon the question of changing the structure of the form of government would be deemed as the mandate of the people to bring changes in the salient feature and this assembly would be deemed as a constituent assembly. Such an assembly could make a change in the structure unanimously passing the amendment in both houses.
Although the question of the referendum is also very much of importance here as we have seen in the history that a referendum by the Zia-ul-Haq was a vague referendum that resulted in Gen. Zia as president for a term of 5 years. The question regarding the change in the form of government must be very clear and concise and in the form of such a question which could be answered as YES and NO and such an answer shall only be related to the specific proposition.
However, While determining the structure of such a presidential system there could be a different type of outcomes that could be foreseen as there was the system of basic democrats in the 1962 Constitution. In which 80,000 basic democrats were elected, who served in Divisional, District, Tehsil and Union Council level. Then these basic democrats elect the president. The members of the National Assembly were also elected by the basic democrats.
There is also a French model of the presidential system in which there are both president and prime minister. President appoints the prime minister and then the prime minister is responsible for parliament and government. President is responsible for the executive functions. President is elected by the direct vote by nationwide balloting. The model of turkey could also be followed by Pakistan as Turkey also shifted to a presidential system from a parliamentary form of government in which now the president is head of the executive and government and hold key appointments of all posts. The President has also power to issue decrees which could be in the form of executive decrees and act as law or the decree to create or abolish any ministerial post.
The issues could also be in the form of emergency decrees, which means that the president has
the say in the basic and fundamental rights of the citizens.
The most famous system of the presidential model is of the United States. In the U.S. presidential system, the President is both the chief executive of the government and the head of state. The President oversees the executive branch of government, which includes the cabinet, or heads of various executive departments, and various administrative bureaus and agencies. The chief executive and the subordinate executive officers have the power and duty to carry out and enforce laws and to administer the day-to-day business of the government. In particular, the President commands the armed forces and is responsible for the defense of the country against internal disorder and foreign attack.
It is thus, maintained that in order to shift the presidential system there shall be an assembly that either is a constituent assembly or holds the power of a constituent assembly through a referendum and then empowered to bring change in the basic structure of the constitution and change the form of government. In case of such structural changes that would result in a number of other constitutional amendments as well and required detailed comprehension while structuring the constitution. There is a number of different structure to be followed while adopting the presidential system which includes American, Turkish, and French model of the presidential form of government.
