Amending constitution thru presidential order will set dangerous precedence: Dr Shahdeen Malik

Let us begin with the politics of constitutional amendment. At this moment, we find ourselves in an unprecedented situation. There is a heated debate on whether the constitution can be amended without parliament. How can this deadlock be resolved?

Political parties, of course, have their own calculations and analyses. From a political standpoint, some say 'yes', others say 'no'. But if we look at it strictly from the legal perspective, as you pointed out, only parliament has the authority to amend the constitution. It cannot be done through an ordinance. Article 93 of our constitution makes it clear that an ordinance cannot amend the constitution.

Now, regarding this phrase, 'constitutional order of the President' — I have never come across such an expression in any constitutional text. I have not read every single book on the constitution, but from what I have read, I have never seen this phrase used. I have only heard it in the media. Many are now drawing references to Pakistan's Legal Framework Order (LFO), which was issued by General Yahya Khan in 1970.

But when the Legal Framework Order was introduced, hadn't Pakistan's constitution already been declared void?

Exactly. At that time, a new constitution had to be framed. The irony is this — Yahya Khan seized power on 25 March 1969, and he issued the so-called LFO on 30 March 1970. Then, on 25 March 1971, he launched a genocide against us — Operation Searchlight. In his mind, killing a few thousand Bengalis was enough to preserve Pakistan's territorial integrity. 

The man who unleashed such barbarity upon us had already dismantled whatever little democracy Pakistan had. He declared himself Chief Martial Law Administrator. Now, if his ordinances are to be treated as our role model, 56 years later, it becomes absurd. 

I want to make a joke here — if Yahya Khan is to be our model, then why stop there? Since his dream was to preserve Pakistan's unity, perhaps we should consider reuniting with Pakistan too! Of course, I say this sarcastically. But it shows how unrealistic this entire idea is — legally unsound, logically flawed, and politically unworkable. The real question is: how can we reach consensus under such circumstances?

You know that the Chief Adviser has gone to New York to attend the General Assembly of the United Nations, taking along six leaders from the BNP, Jamaat and NCP. It is being said that a settlement or dialogue may take place there. But in this context, is it really possible to resolve the deadlock through discussion?

Suppose they do reach an understanding. What happens then? Does it mean another so-called constitutional order from the President? That would imply we are amending the constitution through presidential orders. This is extremely dangerous. If that precedent is set, then the next President could simply say, "I'll issue another order," and so on. That cannot be the way.

It would be like you and I starting a football match but declaring that we won't follow the rules of foul play, offside, or handball. We could still run around kicking the ball, but it would not be football. Similarly, in state governance, there are certain fundamental rules. If you claim to ignore them in the name of the 'greater interest of the people', it simply won't work.

But as you said, invoking the 'greater interest of the people' — the proposal for a constitutional order by the President is being justified by the expert committee. They have referred to Article 22 of the July Declaration, which they argue gives such authority. The wording includes 'rule-based'. So, what was presented before the nation in the July Charter and what the Consensus Commission is now proposing — aren't these in conflict?

Even if not outright contradictory, it is still extremely muddled. And we must recognise the basic point: all these discussions are taking place among a small elite circle in Dhaka — sitting in five-star hotels or places that resemble them. They speak of the people, but in reality, whose voices are being represented?

Take our economy for example. Its main drivers are three or four forces: first, our farmers; second, our migrant workers who send remittances — roughly ten million people abroad; third, the RMG sector, a massive workforce; and finally, the vast informal economy — people who do not work in offices yet contribute immensely. But in all these talks, have you heard anyone speaking about the farmers? Has anyone truly mentioned the workers? The garment workers? Not at all.

So these negotiations, in my view, merely reflect the worldview of the educated upper middle class. That is the limit of their imagination of society.

We see reflection of the phrase 'will of people' both in the Constitution and in the July Declaration. Critics say the July Declaration still has no legal basis. So, which one should take precedence — the Constitution or the July Declaration? 

The signatories of the constitution were the elected representatives of 1970 — they were chosen in that election specifically to write the constitution. They came with a mandate from the people; winning that election gave them the fundamental right to speak on behalf of the public. Our declaration of independence itself begins from that premise: that the people have elected us.

But right now no one has been elected — these are not elected authorities. The core point about a constitution is that it is the supreme law. If there were a law above the constitution, then it would no longer be a constitution. There should be no dispute about that.

Having said that, the sad reality is that killings, enforced disappearances, looting — all those things — did not happen because of the constitution. That's the point I'm making.

So can we conclude that if political parties are undemocratic within themselves, and if political culture does not improve, then merely having laws or a legal framework will not prevent authoritarianism or a dictator?

The primary purpose of a constitution is to define who has what power and to set limits — to draw lines between the state's various organs. For example, parliament's role is clearly defined: it makes laws, but it cannot make any law it pleases; there are limitations. The executive's job is not to legislate or to adjudicate; the judiciary's job is solely to adjudicate. The election commission has its own defined role. The constitution draws these boundaries for everyone's function.

We forget that core purpose. The aim is to limit the power of the office you hold — you must not presume to go beyond it. Yet when people occupy an office, they often behave as if their power is limitless.

There is a demand that a new constitution should be drafted through a constituent assembly. 

To justify that demand, you would first have to demonstrate that the current constitution's provisions are so defective that they cannot be amended — that a complete rewrite is necessary. If everything depended solely on what is written in a constitution, then democracy, justice and the rule of law would have spread across the entire world by now. Words on paper alone are not enough.