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Political Instability in Pakistan: Can a Democratic Federal Political System Resolve the Problem of Premature Dissolutions of Government in Pakistan?

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Political Instability in Pakistan: Can a Democratic Federal Political System Resolve the Problem of Premature Dissolutions of Government in Pakistan? POLITICAL INSTABILITY IN PAKISTAN: CAN A DEMOCRATIC FEDERAL POLITICAL SYSTEM RESOLVE THE PROBLEM OF PREMATURE DISSOLUTIONS OF GOVERNMENT IN PAKISTAN? Aamir Nawaz A thesis submitted in partial fulfilment of the requirement of Nottingham Trent University for the degree of Doctorate in Legal Practice December 2018 Blank Page Copyright © Statement This work is the intellectual property of the author. You may copy up to 5% of this work for private study, or personal, non-commercial research. Any re-use of the information contained within this document should be fully referenced, quoting the author, title, university, degree level and pagination. Queries or requests for any other use, or if a more substantial copy is required, should be directed to the author. Blank Page Dedication This humble contribution I dedicate to the people of Pakistan – those who have sacrificed and endured a lot in their lives for a long time. The people of Pakistan deserve a stable country with a secure future for themselves and their children. And To my father for his firm faith in me that has always motivated me in my life Blank Page Table of Contents Abstract ........................................................................................................ 1 Table of Statute and Legal Instruments ......................................................... 2 Table of Cases ............................................................................................... 2 1. Introduction ......................................................................................... 3 2. Theoretical and Methodological Framework ......................................... 8 2.1 Ontology and Epistemology ...................................................................... 8 2.2 The Position of the Researcher ................................................................. 9 2.3 The Researcher as both insider and outsider ......................................... 10 2.4 Methodologies and Methods ................................................................... 13 2.5 Techniques used in the First Part of the Thesis ...................................... 14 2.6 Techniques used in the Second Part of the Thesis (Comparative Law) .... 17 2.6.1 The Skills of a Comparativist ........................................................... 20 2.6.2 Evaluating External Law .................................................................. 22 2.6.3 Evaluating Internal Law ................................................................... 22 2.6.4 Determining Comparative Observations ........................................... 23 3. Literature Review ............................................................................... 26 3.1 Federalism ............................................................................................. 26 3.2 Equal Representation ............................................................................. 29 3.3 Doctrine of Separation of Powers ............................................................ 32 3.4 Doctrine of State Necessity ..................................................................... 35 3.5 State Structure ...................................................................................... 40 4. Constitutional, Historical and Political Background ........................... 42 4.1 Launch of Federalism in British India .................................................... 43 4.2 History of Constitutional Instruments .................................................... 44 4.3 Testing against the key factors of a Democratic Federal Political System 46 4.3.1 The Pre-Constitution Phase (1935 – 1956) ....................................... 48 4.3.2 The First Constitution (1956 – 1962) ............................................... 52 4.3.3 The Second Constitution (1962 – 1973) ........................................... 56 4.3.4 The Third Constitution (1973 – Present) ........................................... 58 4.3.5 Summary of the Test Results ........................................................... 68 5. A Comparative law inquiry into the USA and Pakistan Constitutional Systems ...................................................................................................... 73 5.1 The State Structure Analysis .................................................................. 73 5.1.1 The USA .......................................................................................... 73 5.1.2 Pakistan .......................................................................................... 77 5.2 Government Structure – Legislative & Executive .................................... 78 5.2.1 The USA .......................................................................................... 81 5.2.2 Pakistan .......................................................................................... 85 5.3 Government Structure – The Judiciary ................................................... 88 5.3.1 The USA .......................................................................................... 88 5.3.2 Pakistan .......................................................................................... 93 5.4 The key factors in the US context ........................................................... 96 6. Conclusion ......................................................................................... 99 6.1 Researcher’s Contribution to Knowledge & Practice ....................... 103 6.1.1 Contribution to knowledge ......................................................... 103 6.1.2 Contribution to practice .............................................................. 103 6.2 Recommendations for policy and future research. .......................... 105 Appendix 1 ................................................................................................ 108 Bibliography .............................................................................................. 109 Table of charts, tables and figures Table 1- Summary of Acts of Dissolution ............................................................ 69 Table 2 - Summary of Results ............................................................................. 70 Table 3 - Salient Features of the USA and Pakistan .......................................... 108 Abstract According to the researcher's hypothesis of constitutional suitability, only a suitable political system works efficiently, a suitable political system for a democratic federal state such as Pakistan is a Democratic Federal Political System, which comprises key factors such as equal representation, separation of powers and a system of checks and balances. These factors appear to be either missing or not appropriately incorporated in Pakistan's past and present constitutional instruments. To test the hypothesis, this document uses two methods of investigation. The first is a qualitative, interpretative evaluation of the prevalence of absolute power and self-interest in Pakistan's constitutional history by reference to historical and statutory sources. This can be traced back to colonial times. Absolute power has been carried forward either explicitly or implicitly in Pakistan’s constitutional instruments to preserve self-interest that followed on from vice regal reigns, which has resulted in seven episodes of state emergency. At times, some of the key factors have been present in Pakistan, putting a temporary halt to premature dissolutions of government. However, it is concluded that the practice is likely to continue until a suitable political system is assumed. The second is a structuralist and functionalist comparative law analysis of both the state and political structures of the USA and Pakistan. The USA's political system has great similarities to the researcher's model of a Democratic Federal Political System. This analysis shows that there appear to be several incompatibilities between the political systems. Nevertheless, there is a great deal of similarity between the state structures of both countries. It is, therefore, concluded that the initial hypothesis has been substantially borne out, and that it would be possible for Pakistan to adopt a Democratic Federal Political System, although slight variations from the US model will be required. 1 Table of Statute and Legal Instruments Constitution of 1962 (of Pakistan) Constitution of the Islamic Republic of Pakistan 1973 Government of India Act 1912 Government of India Act 1919 Government of India Act 1935 Indian Council Act 1892 Indian Council Act 1909 Regulatory Act 1773 United States Constitution Table of Cases Begum Nusrat Bhutto vs Chief of Army staff [1977] PLD [1977] SC 657. Dosso Vs Federation of Pakistan [1958] PLD [1958] SC Pak 533. Federation of Pakistan and Others vs Maulvi Tamizuddin Khan [1955] PLD 1955, FC 240. Marbury v Madison 5 US 137 (1803). McCulloch v. Maryland, 17 U.S. 4 Wheat. 316 (1819) 316. Miss Asma Jilani Vs. The Government of the Punjab and Another [1972] PLD [1972] SC 139. Sindh High Court Bar Association v Federation of Pakistan PLD (2009) SC 879. Syed Zafar Ali Shah and others vs Gen Musharraf, Chief Executive of Pakistan [2000] PLD [2000] SC 869. Texas v White 74 US 700 (1869). 2 1. Introduction The central problem that this research project is designed to address is that Pakistan has gone through seven episodes of premature dissolutions of government since its inception in 1947 which, amongst other issues,1 have caused an environment of great political instability in the country. The term
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