Constitutional Evolution Volume II

DATE: JULY 2004

Colonial Constitutionalism – Dr. Ranabir Samaddar
In this article, Dr. Sammadar traces the evolution of constitutionalism in order to validate his claim that constitutionalism can only be colonial. In view of recent civil wars, he questions whether constitutions are freedom guaranteeing or coercive and insists that constituion is the natural companion or product of war, change and anarchy. He further supports his stance by references to various constitutional systems including that of Pakistan. He describes our country as “a nationalism caught in the eternal quest for a constitutional order” and explains that rather than being an example of a democracy that could not come into being he feels it is representative of the extent of force required by a society to turn itself over to constitutional order.The Viceregal Tradition in Pakistan – I. A. Rehman
The author outlines the constitutional history of Pakistan, highlighting the trials and tribulations that the system has suffered. Asserting that the Constitution has been used as a tool to implement what he terms “the viceregal system” in Pakistan, Mr. Rehman presents an indepth discussion on the havoc wreaked by the numerous changes wrought in the constitutional system. His no-holds-barred approach to the subject unequivocally lays out the political motivations which led to the Constitution being exploited for the vested agendas of various political leaders. Describing in detail the steady constitutional decline in the country, the author’s exposé is in fact a background study of the derelict constitutional system still prevalant in Pakistan.Text or Context? Islamisation of the Constitution in Pakistan – Sohail Akbar Warraich
This paper looks at the history of constitution-making in Pakistan and assesses how effective the various constitutions have been in defining the law of the land and providing a framework for legislation and governance. It studies the impact that constitutional evolution has had on the status of citizen’s rights and the fundamental concept of equality before the law. It also traces the political impetus that has led to the introduction of discriminatory legislation and the way the legal system has gradually shifted from legal principles and norms to a discourse on the rules of dominance. It also examines how conflicting provisions in the constitutions and vague frames of reference enabled the religious orthodoxy to establish its hold and paved the way for the erosion of the principles of equity, justice and good conscience.Achieving Equality: Preventing Violence Against Women – Justice Catherine A. Fraser
This article reviews the high level of commitment to gender equality and the prevention of violence against women expressed in international law, especially in instruments like CEDAW and DEVAW. The author elucidates the concept of equality and the significance of a contextual equality analysis by giving an overview of different models of equality and looking at how equality principles have changed to accommodate the diverse life circumstances of men and women. She traces the evolution of substantive equality, in the light of the limitations of other models of equality, and highlights its significance in preventing violence against women. She deems it imperative that all judges acquire knowledge about international human rights laws and understand the contemporary language of equality.Is the Law Fair Towards Women? – Aasha Mehreen Amin
In this article, Amin points out the many contradictions in Bangladeshi law as far as women are concerned. In light of the work done by Faustina Pereira on the subject, Amin exposes the injustice women face because of the discriminatory legislation with regard to custody and guardianship, citizenship and marriage, among others. She also discusses the repercussions of the absence of legislation on key issues such as marital rape, sexual harassment and domestic abuse. She highlights the fact that the kind of discrimination that some of the laws demonstrate, is insupportable under the equality guarantees contained within the Constitution of Bangladesh.Constitutional Evolution and the Status of Women in Pakistan – Justice (R) Nasira Javed Iqbal
“Under the Constitution of Pakistan, fundamental rights and freedoms are guaranteed to all citizens regardless of race, colour, creed or sex. Article 18 guarantees the Right to Work and adopt a lawful business, trade or profession. Article 25 provides that there shall be no discrimination on the basis of sex alone. However there is a continued system of overall male domination, even though some of the specific features of domination have changed.”

Notes on a Banishment – Kamal K. Jabbar
“In the Machiavellian world of Pakistani politics, the law and Constitution are subject to the machinations of the State and vested interests. As early as the 1950s, Keith B. Callard, an American political scientist observed, “… no one is willing to die for the preservation of the Constitution in Pakistan”.1 An emotional attachment to the Constitution and to the concept of the due process of law is essential in ensuring their preservation.”

Operation Just Cause – Eds.
“Many individuals, including the petitioners in the case Rasul et al. v. Bush, President of the United States, et al.,2 were captured abroad while hostilities continued. The petitioners were held by the US military at the Navel Base at Guantanamo Bay, Cuba. This base is occupied by the US under a lease and treaty which recognises Cuba’s ultimate sovereignty but gives the US complete jurisdiction and control so long as it does not abandon the leased areas. The petitioners had filed suits under federal law challenging the legality of their detention.”

The Clash of Fundamentalisms – Abbas Rashid
“His letter to a young Muslim who differs strongly with his views is a call for understanding the nature of the beast and the futility of 9/11 tactics on the part of enraged Muslims. This recipe, Ali emphasizes, is not a march towards victory but a sure route to disaster. It is a strategy that will only strengthen those such as the neocons in the US who need the imagery of radical Islam gearing up to overthrow Western civilization.”