India and Pakistan: How they differ on key constitutional questions

As Pakistan begins a new experiment in constitutional democracy, how does its national experience differ from India’s with regard to key aspects of government and law?

Written by Faizan Mustafa | Published: August 21, 2018 1:17:23 am
Imran Khan, pakistan PM Imran Khan, Imran Khan swearing in ceremony, Pakistan elections, india pakistan relations As Pakistan begins a new experiment in constitutional democracy, how does its national experience differ from India’s with regard to key aspects of government and law?

In his first address to the nation after taking oath Saturday, Prime Minister Imran Khan promised a “naya Pakistan” that would follow “the path envisioned by Jinnah and Iqbal”. Jinnah saw Pakistan as a liberal and democratic nation state with equal rights for all citizens, rather than an orthodox Islamic state. As Pakistan begins a new experiment in constitutional democracy, how does its national experience differ from India’s with regard to key aspects of government and law?

The Constitution

While the preamble to the constitution of the Islamic Republic of Pakistan begins with an invocation of “Almighty Allah” and mentions the “Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah”, the Constituent Assembly of India had rejected any reference to God or to the Father of the Nation, Mahatma Gandhi. The preamble to Pakistan’s constitution promises “adequate provision” to “safeguard the legitimate interests of minorities and backward and depressed classes”, and “the independence of the judiciary”. The preamble to the constitution of India is more compact — it encapsulates, but doesn’t explicitly mention, the rights of minorities and independence of the judiciary.

Pakistan’s constitution, unlike India’s, recognises the right to privacy (which was declared a fundamental right by the Supreme Court last year), and the right to education for children from ages 5 to 16. (The Right of Children to Free and Compulsory Education Act, 2009, gave this right to Indian children between ages 6 and 14.) Pakistan’s constitution guarantees the right to information (India passed The Right to Information Act in 2005), and declares human dignity as inviolable. Unlike the Indian constitution, it specifically mentions the freedom of the press, but this freedom is subject to the “glory of Islam”. Pakistan has a regressive and widely abused blasphemy law that carries mandatory death penalty; also, its freedom of religion is conditional, and unlike in India, available only to citizens.

The Judiciary

Pakistan’s government has no role in the appointment of the country’s Chief Justice. Article 175A(3) of the Pakistani constitution says “the President shall appoint the seniormost Judge of the Supreme Court as the Chief Justice of Pakistan”. While India’s Supreme Court in October 2015 struck down the National Judicial Appointments Commission — which was intended to decide appointments and transfers of judges of the higher judiciary — Pakistan has had its version of the commission since 2010. There are six judges, a senior advocate, and two government nominees on it, and its recommendations go to an eight-member committee of Parliament — comprising two members each from the government and opposition in both the National Assembly and Senate — which confirms nominations by majority vote.

To deal with alleged judicial misconduct — a hot-button issue in India currently — Pakistan’s constitution provides for a supreme judicial council consisting of the Chief Justice, two seniormost judges of the Supreme Court, and two seniormost Chief Justices of High Courts. If this council concludes that a judge is “incapable of performing his duties” or is guilty of “misconduct”, impeachment by the President follows. This process is different from India’s, where the key role in impeachment is that of Parliament, and the grounds for action are more stringent: “proved misbehaviour or incapacity”.

Elections

The Pakistani Prime Minister resigns ahead of elections, and the Leader of Opposition and he together select a caretaker PM. If they cannot agree, each will send two names to the Speaker, who will refer it to a parliamentary committee with equal representation from the ruling party and the opposition. On May 28, former CJP Nasir-ul-Mulk was chosen caretaker PM to replace Prime Minister Shahid Khaqan Abbasi and lead the country until the elections of July 25.

While India’s Election Commissioners are picked by the government and are generally IAS officers, the process in Pakistan is more complex. The Chief Election Commissioner has to be a sitting or retired judge of the Supreme Court or a High Court, or be qualified to be appointed as an SC judge. The PM in consultation with the Leader of Opposition forwards three names to a 12-member parliamentary committee that has equal representation from the government and opposition. The Election Commission has four other members, each a judge from one of the four provincial High Courts of Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa. The Election Act of 2017 gave the Election Commission of Pakistan financial autonomy as well, which India’s EC does not have.

Muslim candidates in Pakistan’s elections have to be of good character, sagacious, righteous, honest, and non-profligate, have adequate knowledge of Islam, and should not have committed any major sin. Nawaz Sharif was disqualified under this provision, as he had failed to declare in his nomination papers that he was entitled to receive money from his son’s offshore company.

The Government

The PM and provincial Chief Ministers are elected by the newly constituted House; unlike in India, the President or Governors have no role even if no party has a clear majority. If two candidates are tied, voting continues until one secures a majority. Imran Khan was elected PM on August 17 after he defeated Shahbaz Sharif by 176 votes to 96 in the National Assembly.

The Pakistani constitution has no provision for a confidence vote as the PM/CM is elected by the new House. A motion of no-confidence can be moved by 20% of members, and will succeed if passed by a majority of the total membership of the House (unlike in India, where it must be passed by a simple majority of those present and voting).

Reservations

Of the 342 seats in the National Assembly, 272 are filled by direct elections. Sixty seats are reserved for women and 10 for religious minorities, which are filled by proportional representation among parties that get more than 5% of the popular vote. The four provincial assemblies have their own quantums of reservations for both women and minorities. Parties must give 5% of tickets to women candidates in the general seats, and if less than 10% women voters cast their votes in any constituency, the result there is nullified.

(The author is an expert on the Constitution & VC of NALSAR University of Law, Hyderabad)

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