Table of Content:

Constitution, Its Meaning, Kinds and Rules Of Interpertation.......................2

Islamic point of view about constitution:........................................................7

Constitution making........................................................................................8

Constitutional history of Pakistan:..................................................................9

Constitution of 1956:.....................................................................................22

Constitution of 1962:.....................................................................................24

Constitution of 1973......................................................................................25

Amendment of constitution...........................................................................30

Procedure for Amendment of the Constitution.............................................31

Conclusion;....................................................................................................31

References.....................................................................................................32

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Constitution, Its Meaning, inds and Rules of Interpertation:Constitution is the fundamental law of the land and it is from this source

that all the laws spring. This law can be made or altered not in the manner

of ordinary laws but in a much different way, that is, by a defined authority

and in the prescribed manner. As far as Muslim states, particularly

Pakistan, are concerned the laws are not derived from the constitution but

from the Almighty Allah who has revealed them in his book and which have

been interpreted and explained by Holy Prophet Mohammad (PBUH)

through his sayings. Conduct and actual practice. For practical purpose we

can assume that laws which are not repugnant to the holy Quran and

Sunnah have to be framed under the authority of the constitution and

cannot be antagonistic to its command and spirit.

(Anjum.S.Ahsan.1983)

Forms of Constitution:

A constitution may be unwritten. As for instance the English Constitution

which mostly consist of constitutional as ages, traditions and conventions,

or written, as most of the modern constitutions are. Or partly unwritten. A

written constitution is usually rigid and inflexible in as much as, intended to

be permanent, it does not admit of alteration by ordinary legislative process

and requires some extraordinary procedure for its amendment. A

constitution may be Unitarian or federal according to whether power resets

in the centre or is distributed between it and the federating units. A

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Unitarian constitution is flexible if it can be amended by ordinary legislative

process and rigid if it requires a special procedure for its alteration.

(Anjum.S.Ahsan.1983)

Kinds of Constitution:

Federal and unitary constitutions

This classification is based on the principle by which the powers of

government and the constitution government established for its constituent

parts. Under a federal constitution there is a scheme of distribution of

powers between the central and local units which are to a certain extent

independent within their own territorial limits. The central government has

its own sphere of operation of its laws, while the federating units are

governed by their own laws. No one is subordinate nor are acts as an agent

of the other, e.g. the constitution of Switzerland, Australia and India.

In the unitary constitution the legislature of the whole country is the

supreme law making body which may permit other legislatures to exist

subordinates to it. Sweden, New Zealand, France, have unitary

constitutions.

Republican and monarchical( Autocratic )constitutions

Constitutions are sometimes classified into “republican” and

|”monarchical”. There is difference between popular or democratic

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government as opposed to an autocracy or dictatorship which established

absolutism of the executive. It is difficult to find today even one solitary

example of the latter type of the constitution. A republican constitution on

the other hand illustrates almost every system of government from

democracy to dictatorship.

Conventional

The English constitution is based largely upon rules of practice, or

convention. Many of the rules of the English constitutional government

possess merely a conventional character. This is shown by the fact that no

legal proceedings can be taken for a breach of their established terms, since

they are merely matters of practice. The conventions of the constitution are

in the last resort founded upon the law of the land; and they have their

sanction in the force of law.

Unitary

The English constitution involves one central government which pervades

the whole country.

Flexible

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In flexible constitution every law of every description can legally be

changed with the same ease and in the same manner by one and the same

body.

A flexible constitution is likely to be unstable due to its capacity to undergo

constant changes. But at the same time there is this advantage that it

facilitates all necessary changes required by the changing political and

economic ideas and circumstances, and secures the growth of the

constitution without the possibility of any revolution. The English

constitution with the supremacy of parliament is an instance of a flexible

constitution.

Rigid

A rigid constitution on the other hand is one under which certain laws

cannot be changed in the same manner as ordinary laws. They can be

altered or amended by the special machinery provided in the constitution

itself.

(Anjum.S.Ahsan.1983)

Rules to interpret of a Constitution:

The constitution is fundamental or organic or supreme law standing

on a somewhat higher position than the other laws of the country.

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The constitution is the source from which all governmental power

emanates and it defines its scope and ambit so that each functionary

should act within his respective sphere.

The courts are components of the constitution; they derive their

powers and jurisdictions from the constitution and must confine

themselves within the limits set by the constitution.

Under a constitution prescribing a system where there is a

tracheotomy of sovereign powers the judicial power must from the

very nature of things is vested in a judiciary.

Thus the judiciary does claim and has always claimed that it has the

right to interpret the constitution and to say as to what a particular

provision of the constitution means or does not mean even if it is a

provision seeking to oust its own jurisdiction.

In the latter case an ouster of jurisdiction is not to be readily inferred,

because, the consistent rule is that provisions seeking to oust the

jurisdiction of superior courts, even by a constitutional provision, are

to be construed strictly with a pronounced learning against ouster.

It is not, however, the function of the judiciary to legislate or to

question the wisdom of the law giver if the law has been competently

made without transgressing the limitations of the constitution. If a law

has been competently made the judiciary cannot refuse to enforce it

even if the result be to nullify its own decisions.

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The law-giver has also very right to change, emend or clarify the law

if the judiciary has found that the language used conveyed by the law-

giver.

The constitution has to be construed like other document reading it as

a whole and giving to every part therefore a meaning consistent with

the other provisions of the constitution.

As far as possible each provision of the constitution should be

construed so as to harmonies with all the others.

(Anjum.S.Ahsan.1983)

Islamic point of view about constitution:The first Muslim constitution was promulgated by the holy prophet of Islam

Mohammad (pbuh) when he migrated to madina and foundation was laid for

the government of a city state. This constitution was framed and put into

effect with the full consensus of not only the followers of the prophet

Mohammad (pbuh) but also had the concurrence of the Jews and other non-

converts. The constitution thus framed gave the details of the rights and

duties of the ruler and the ruled.

The characteristic of Muslim administration had been that the people

including the rulers were subject to shariat and it was enforced with greater

force of equity, justice and good conscience in the case of those who did not

embrace the faith of Islam. Such notions as “the king can do no wrong”,

“the king cannot be tried in his own court”, “act of state” and “privilege”

etc, are unknown to Islamic jurisprudence. Even the first four rightly guided

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caliphs had great respect for the law and would humbly appear before the

Qazi if ever such an occasion arose.

Muslim theologians and jurists believe in the supremacy of the law as laid

down in the holy Quran and interpreted by Sunnah and hold it to be eternal

and immutable. This law was therefore the actual sovereign in Muslim

lands. Sovereignty, says the Holy Quran, belongs to almighty Allah alone

and the authority to be exercised by the state is therefore a sacred trust on

behalf of Allah and must be exercised within the limits prescribed by Him.

(Mehmood.M,1995).

Constitution makingThe constituent assembly of Pakistan could not, frame a constitution during

the lifetime of the quaid-e-azam. In March 1949 a resolution known as the

objectives Resolution came to be passed by unanimous vote of the house.

This resolution merely enunciated the principles or guidelines on which the

constitution was to be framed and could well be regarded as the preamble

of the constitution of Pakistan.

The constitution – making went on till in 1954 a draft of the constitution was

prepared with the leaders of the various groups in the assembly but in

October, 1054 Mr. Ghulam Muhammad, the then Governor- General, put

armed guards outside the assembly hall, dissolved the constituent assembly

by proclamation and allowed none to enter the premises so as to pass the

constitution. This step was taken by him to keep his gaddi intact and for life,

8

because he knew full well that he would have to vacate the office in favor of

the duly elected representative of the people.

Maulvi Tamizuddin Khan, the speaker of the Constituent Assembly

challenged his resolution in the chief court of sindh and sought for a

declaration that the orders of the Governor-General were unauthorized,

unconstitutional, and illegal and without force. The Chief court issued a

write restraining the governor- General. The matter went up in appeal to

the Federal Court headed by justice Munir who allowed the appeal and

dismissed the writ petition.

The federal court judgment in us if paatel case observed that the first

concern of the Government would have been to bring into existence another

representative body to exercise the powers of the Constituent Assembly so

that all invalid legislation could have been immediately validated by the new

body.

Acting on this advice a new Constituent Assembly was elected by the

members of the Provincial Assemblies on basis of proportional

representation and this Assembly succeeded in framing a Constitution in

1956.

(Dr.Muhammad.B, 1995)

Constitutional history of Pakistan:The constitutional history of Pakistan is full of turmoil and toil. It may be

said to have commenced from Indian independence act, 1947 but there are

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certain important enactments which tell us at least a part of story and

furnish implied source of historical background.

Indian act 1858:

Although the war of independence 1857, could not achieve the object for

which it was fought but it certainly put an end to the rule of East India

Company. It was realized that a trading company whose main objective was

profit could not be entrusted with the work of administration of a sub-

continent like India. A bill was introduced by Lord Palmerstone for the

better Government of India in Parliament, which was passed and became

Government of India Act 1858, the first most important constitutional

document in the history of sub-continent. This act abolished the East India

Company and transferred the government of India from the hands of East

India Company to the Crown.

The Act of 1858 mainly provided:

1. India shall be governed by and in the name of Queen. The Governor-

General came to be known as the Viceroy.

2. The Board of Control and Court of Directors were abolished and all

the powers possessed by them were given to the Secretary of State

for India and his Indian Council.

3. The Secretary of State was to preside over the meetings of the Indian

Council. He was declared to be corporate body which could sue and

be sued.

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Indian Council’s Act 1861:

The act of 1858 which transferred the Government of India into the hands

of the Crown did not make any change in the Indian administration. It was

therefore necessary that something should be done to reform the Indian

machinery also. That was done by the Act of 1861.

1. The Act empowered the Governor-General to delegate special

business to individual members of the Executive Council.

2. The Executive Council of the Governor-General was strengthened.

3. The Governments of Bombay and Madras where given the power of

nominating the Advocate-General and additional members of the

Executive Council for the purpose of legislation.

4. No distinction was made between the central and provincial subjects.

However, subjects concerning public debt, finances, currency, post-

office, telegraph, religion, patents and copyright were ordinary put

under the control of the Central Government.

5. The governor-General was given the power to create new provinces.

He was also given the power to appoint lieutenant-Governors. He was

also authorized to divide the limits of any presidency and province.

The Indian Council Act 1861 marked an important step in the constitutional

history of Indo-Pakistan. It made a beginning in representative institutions

and legislative devolution. Herein the policy of association was given effect

to. However, it may be noted that the non-official members of the Council

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were nominated by the Viceroy ad not elected by the people. The legislative

power given to these Councils was very wide but was put under severe

restrictions. The non-official members had practically no say in the matter.

In this way, the Act of 1861 was defective and required improvements of

representative institutions.

Indian Council’s Act of 1892:

1. This Act enlarged the functions of the Legislative Councils. They

were authorized to discuss the annual financial statement under

certain conditions and restrictions.

2. The members of the Council were given the right of addressing

questions to the Government on matters of public interest.

3. The number of additional members in the council was increased

subject to certain restrictions and rules made by Governor-General.

4. As a result of the pressure brought by the Indian National Congress,

the principle of elected members was accepted. But the elected

members could only take their seats if nominated by the Governor-

General.

Mehmood.M, (1995).

Minto-Marley Reforms 1909:

The discontented people of the sub-continent were not satisfied with the

hollow provisions of the Act of 1892, with the result that the period between

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1892 to 1909 was one of storm and stress. The people resented autocratic

attitude of the Government. The agitation against the partition of Bengal

was widespread. In 1906 a Muslim deputation, headed by H.H. the Agha

Khan waited upon Lord Minto and demanded separate representation of

Muslims. In December 1909 the Nawab of Dacca appealed to the Muslims

of India to form the All India Muslim Confederacy’. Lord Minto, the then

Viceroy of India took a serious note of the situation and reported the matter

to the Home Government. In December, 1906 Lord Morley introduced his

famous Bill in the House of Lords. The Bill was passed in 1909 as the India

Council Act.

1. The Act of 1909 enlarged the size of Legislative Council.

2. It was provided that the imperial Legislative Council shall consist of

37 official and 32 non- 0fficial members.

3. It was decided that there would be no official majority in the

provincial Legislative Councils but such majority was considered

essential in the Central Legislature.

4. The principle of territorial representation was not accepted.

“Representation by classes and benefit was considered to be the only

practical method of embodying the elective principle in the

constitution of the Indian Legislative Council.” The Act provided for

separate or extraordinary electorates for the due representation of

the different communities, classes and benefit.

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5. The functions of the Legislative Councils were increased. Described

rules were made for the discussion of the budget in the Imperial

Legislative Council. Every member was given the right to move any

resolution relating to any alteration in taxation, any new loans or any

additional grant to local Governments proposed or mentioned in the

financial statement or explanatory memorandum. However, the

Council was not permitted to discuss expenditure on interest, on debt,

ecclesiastical expenditure and State Railway etc.

6. The members were given the right of asking question and

supplementary questions for the purpose of further elucidating any

point.

7. The members were given the power to move resolutions in the

Councils.

8. Rules were framed for the discussion of matters of general public

interest in the Legislative Councils. But no discussion was permitted

on any subject not within the competence of the particular

Legislature, any matter affecting the relations of the Government of

India with a Foreign Power or a native state, and any matter under

adjudication by a court of law.

9. In the provinces, Landlords, district Boards and Municipalities and

Chambers of Commerce were to select members.

10. Muslims were given separate representation. Muslim members

of the legislation were elected by the Muslims themselves.

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(Khan Hamid, 2005)

Government of India Act 1919:

The preamble of the Government of India Act 1919 stated that it was the

declared policy of the British Parliament to provide for increasing

association of Indians in every branch of administration and for the

gradual development of self-governing institutions, with a view of the

progressive realization of responsible government in British India.

However, it said, progress in giving effect to this policy could only be

achieved in successive stages.

Some of the main provisions of the Government of India Act, 1919 were

as under:

1. The Act provided that the Secretary of State for India was to be

paid out of British revenues. The Secretary of State continued to

possess and perform the duty of superintendence, direction, and

control upon the affairs of India. The Governor-General of India

was obliged to carry out the orders of the Secretary of State.

2. The Act set up a bicameral legislature at the centre in place of the

imperial Council consisting of one house. The two Houses were

called Central Legislative Assembly and the Council of State.

3. Direct elections were provided for both houses of the Central

Legislative though the franchise was very restricted.

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4. The duration of the term for the Central Legislative Assembly was

three years, and for the Council of State five years, which could be

extended by the Governor-General. The Governor-General had the

power to summon, prorogue, and dissolve the houses of the Central

Legislature. He could also address both houses.

5. The Central Legislature had the power to make laws for all of

British India, for Indian subjects wherever they might be, and for

all persons employed in the defense forces. It could also repeal or

emend laws for the time being in force. However, prior sanction of

the Secretary of State-in-Council was required to pass a law

abolishing any High Court. Prior sanction of the Governor-General

was required to introduce bills on the following subjects:

The public profit or public revenues of India.

Religion or religious rites and usages of British subjects in India.

Discipline or maintenance of the land.

Relations of the government of India with foreign states or

Indian states.

Any measures repealing or emending any Act of Legislature or

any Ordinance passed by the Governor-General.

The governor-General could also prevent consideration of a Bill or a

part of it if, in his opinion, it affects the safety or tranquility of British

India, or any part therefore.

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6. The Governor-General could issue an Ordinance for a period of six

months which had the same force and effect as an Act of the

Central Legislature. He had the power of veto over the Bills passed

by the Central Legislature.

7. The Central Budget was presented before the Central Legislature

in the form of demands for grants. There were certain non-votable

items which were not open to discussion unless the Governor-

General so allowed. All other items were submitted to vote. In an

emergency, the Governor-General was empowered to authorize

such expenditure as, in his opinion, was necessary for the safety or

tranquility of British India or any part before.

(Hassan.u.Masud,2001)

The Government of India Act 1935:

The Act was a comprehensive statue running into 321 sections and two

schedules. It was a comprehensive written Constitution given to India by

its colonial masters. That was partly due to the fact that the Act dealt

with a highly complex type of a federal constitution and also because it

sought to provide legal safeguards against misbehavior on the part of the

Indian Ministers and the legislature.

Special features of the Act of 1935:

The acceptance of an All India Federation.

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The introduction of partial responsibility in the form of diarchy at

the Centre.

The grant of autonomy to the provinces.

Safeguards, reservations, special responsibilities, overriding

Powers, etc.in the hands of the Governors and the governor-

General.

Creation of a Federal Court, Federal Railway authority, the reserve

Bank of India, public service Commission for the Federation and

provinces.

Complexity of the scheme:

Although the government of India act, 1935, is considered to be a

masterpiece of draftsmanship, it is the most complicated instrument in

the whole history of Constitutional development in India. The complexity

arises from various reasons, the chief of which is unique nature of the

problem which the scheme was designed to solve.

Basic purposes of the act:

There were three basic purposes of the Act:-

i. Establishment of a Federation.

ii. Provincial autonomy with parliamentary Government.

iii. The separation of Burma from India.

Provisions:

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Provincial Autonomy:

It introduced responsible governments in the provinces which came to be

known as provincial autonomy. Under it the whole provincial

administration, with certain reservations, was transferred to the control

of Indian Ministers, working on cabinet principles, responsible to

provincial Legislatures.

All India Federation:

The Act also proposed to abolish the unitary front of government which

had been working in India since the regulating Act. Its place was to be

taken by an All India Federation compromising 11 provinces (Governors)

and 5 provinces (Chief Commissioners) plus such states, as were willing

to join the Federation. Thus for the first time the whole of India including

Indian states was to be integrated under one Constitution.

Diarchy at the Centre:

The act proposed to establish Diarchy at the centre, i.e. Diarchy was to

be abolished in the provinces, only to be crated at the centre. The central

administration was to be divided into two parts. One part to be in charge

of the Councilors, responsible to the Governor General alone, and it

included some key departments.

Safeguards:

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Lastly were safeguards of special responsibilities. Under the Act, entire

Provincial administration was given to Indian Ministers, but the

Governor was given certain special powers of interference which

could be used whenever necessary. In certain cased he could act o

discretion without consulting Ministers, yet in other cased, he could

act on his individual judgment, consult has Ministers but take decision

independently. In addition to these exceptions, the Governor was

charged with special responsibilities regarding peace and other within

his jurisdiction protection of the rights of minorities. All India service

Indian States and prevention of discrimination against the British

subjects and British firms. All such precautionary measures were

known as special responsibility of the Governor or his safeguards.

Rigid Constitution…

The constitution of 1935 was rigid. The British Government

Alone was given the authority to emend the constitution.

(Dr. Mahmood Safdar. 1992).

Constitution making 1947 to 1956

The modified Government of India Act (1935) became the Interim

Constitution of Pakistan in1947. The Constituent Assembly (CA) was given

the task of framing the Constitution. The process began with the passing of

the Objectives Resolution in which the Islamic and democratic values were

20

adopted as grounds for the future constitution. The Basic Principles

Committee (BPC) consisting of 24 members was made to work for the

constitution. The various sub-committees on Federal and provincial duties,

Franchise, Judiciary, and Fundamental Rights started working. Board of

Talimat-i-Islamia was also set to look for advice on the religious matters.

First Basic Principle Committee Report, 1950

1: The Objectives Resolution to be built-in in the Constitution as the order

principles.

2: Legislature: Two houses of the parliament.

Upper: (House of Units) Equal representation for the units

Lower: (House of People) On the basis of Population. Both the Houses would

benefit from the same power.

3: The Head of State elected by joint session would be for five years (Two

times only). President had optional and emergency, appointment and other

powers. President was not responsible to give answer to anyone, might be a

Muslim or non-Muslim, would be assist by the Prime Minister (PM) and

Cabinet that would be responsible to the CA. Parliament may charge him by

2/3 majority. He was given the power to break the constitution.

4: Cabinet responsible to both the Houses.

5: No mention of national language

Criticism:

This report was severely criticized throughout the country. It could not suit

both the wings, East and West. The religious group objects that the report

21

contained nothing about Islamisation. On the question of depiction, the East

Pakistan (EP) protested that their majority had been denied by the Report.

They remark that they were thrown into a permanent minority. The

population of EP was a little larger than that of the West Pakistan (WP) but

it was treated as the

Small provinces because both the Houses were given equal power. So the

authority of WP was intolerable for the East wing. The language problem

proves dissident to the national solidarity. The Eastern Pakistanis destined

the proposal that made Urdu as official language.

Second Basic Principle Committee Report, 1952

1. Head of State would be Muslim and no change in powers.

2. Equal representation to East and West wings:

UH (Upper House) 60, 60 LH 200, 200

3. More powers were given to Lower House. Cabinet was made responsible

to Lower House.

4. It was promised that law making would be in accordance with ISLAM. No

law would be made in disobedience of Islamic principles.

5. Advisory Board of five Islamic scholars was founded.

6. Quiet on national language.

Criticism:

The politicians particularly from the Punjab deplore the Report because

configuration of the UH on the basis of representation was not suitable. It

was stated against the principle of federation.

22

The WP superior equality only for Upper House. The political crisis removed

Prime Minister Nazimuddin and attention unfocused from the main issue.

Constituent Assembly Dissolution

In October 1954, GG (Governor General) dissolved the CA that was

challenged in the Sindh court by Maulvi Tamizuddin. The court confirmed

the dissolution illegal but the Federal Court upholds the GG action but

asked for setting up an elected CA.

2nd Constituent Assembly, June-July 1955

Ghulam Muhammad called a Convention on May 10, 1955. All its members

were to be elected not directly (by the provincial assemblies). In this way,

the 2nd CA came into survival

One Unit Scheme, October 1955

The presence of different provinces in the WP had complicated the issue of

the WP representation in the CA. It was handled by uniting all the WP units

into ONE (One Unit, October 30, 1955). Now both the parts had become

two units and could be addressed equally.

(Dr.Muhammad.B, 1995)

Constitution-making

One Unit scheme helped the task of constitution making to achieve

successfully. The previous committees report helped the new Assembly that

completed its work and presented in the 2nd CA on January 9, 1956. It, with

certain amendments, was approved on January 29, 1956 and imposed on

March 23. With this Pakistan had become an Islamic Republic.

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Constitution of 1956:The first constitution of the country was enforced on 23rd march, 1956. The

main points of this constitution are as follows:

1. Pakistan was to be federal republic based on Islamic Ideology.

2. A detailed and comprehensive list of fundamental rights with an

Independent Judiciary was provided in the constitution.

3. The system of the parliamentary form of government was adopted

both at the Centre and in the provinces.

4. There was distribution of powers between the Centre and the

provinces.

5. The constitution provided for Pakistan, wherein equality between East

and West wings had been maintained.

6. For the distribution of subjects between the centre and the provinces,

three lists of subject had been drawn up.

7. There was a special procedure to be adopted for the amendment of

the constitution, yet it was the least rigid constitution. It was

reasonably flexible.

8. It had provided for two National languages Urdu for the West

Pakistan and Bengali for the East Pakistan.

9. Instead of double citizenship, one citizenship system was provided for

the Federation of Pakistan.

10. The constitution was silent as to be method of conducting

elections both for the Central and the Provincial legislatures.

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11. And finally, there were the Islamic characters of the

constitution.

Islamic provisions of the 1956 constitution:

i. The name of the country will be Islamic republic of Pakistan.

ii. The preamble of the constitution embodied the sovereignty of God

Almighty.

iii. The Head of the State shall be a Muslim.

iv. Islamic Advisory Council shall be set up.

v. No Law detrimental to Islam shall be enacted.

The political conditions of the country could not be improved even after the

first constitution was enforced. The political instability remained rampant.

The elections could not be held till 1858. The constitution invited criticism

from certain quarters. Martial Law was declared in the Country on 8 th

October, 1958. General Ayub, commander in chief of the Army, took over

the government and became the Head of the State on 27th October 1958.

After taking over President Ayub Khan set up a constitutional commission

under justice Shahab-ud-Din to suggest recommendation for the new

constitution of the country. The commission after through and lengthy

discussion submitted its report on 6th March 1961.

The report was examined by president. In its report the commission

highlighted the reasons of the failure of parliamentary democracy in

Pakistan. It fixed the responsibility for the debacle of democracy on the lack

of dedicated leadership, absence of well organized political parties and the

25

self aggrandizement of the greedy politicians. In the view of the

recommendation of the commission a new constitution was not framed by a

constitutional body which was elected nor did it enjoy popular support. The

constitution was thrust upon the people in an undemocratic and

authoritarian manner.

(Mehmood.M, (1995).

Constitution of 1962:Salient Features of the Constitution

1. Title of the State will be Islamic Republic of Pakistan.

2. A Powerful President who was responsible for administration and

affairs of the state. He should be a Muslim, no less than 40 years of

age, should be capable to be a member of NA. He would be elected

through not direct elections for a time of five years. If he has held

office for more than 8 years, he could look for reelection with the

support of the NA and the PAs.National Assembly was given the

power to charge the president, however it was difficult to achieve.

President could dissolve the NA but in that case he must seek re-

election.

3. President was the central point of all the Executive, Legislative and

Judicial powers. Cabinet was responsible to him. All key appointments

were to be made by President. He could issue Ordinances. He could

also announce State of Emergency in the country.

26

4. NA was consisted of one house on the basis of principle of parity

between two wings of the country. There were 150 seats plus 6 seats

were reserved for women. All were elected indirectly. For the

membership minimum age limit was 25 years.

5. NA had all the powers of law making but law was to be finally ratified

by the president. President could sign, reject or return the bill.

6. Financial Powers of NA were limited. Only new expenses could be

voted. NA could not reject join Fund List and Recurring Expenditure.

7. There were two provinces of the federation: East Pakistan and West

Pakistan. Only one list of subjects, i.e. the Central list was given in the

constitution.

8. Governors were head of the provinces and govern the province with

his cabinet. Provincial governments were directly under the control of

President. There was a strong center with a Powerful President. He

had enough powers to manage provincial affairs. In case of emergency

powers Central government could take direct control of the province.

9. Principles of Policy

• National solidarity would be observed.

• Interests of backward people would be looked after.

• Opportunities for participation in national life.

• Education and well being of people.

• Islam would be implemented in day to day life.

10. Fundamental Rights were provided in the constitution.

27

11. Originally Political Parties were not allowed. Political Parties

Act was introduced in 1962.

12. Objectives Resolution was the Preamble of the Constitution.

Other Islamic provisions were a part of Principles of Policy and not

the constitution.

13. An Advisory Council for Islamic Ideology was made in the

constitution having 5-12 members. It was a recommendatory body.

14. It was designed for the Research and instructions in Islam for

assisting the reconstruction of Muslim society on truly Islamic lines.

Constitution remained enforced from June 8, 1962 to March 25, 1969.

(Gankovsky.V.Y & Moskalenko.N.V, (1975).

Constitution of 1973Background

Abrogation of the 1962 Constitution on March 25, 1969 led to second

martial law in the country. Yahya Khan handed over power to Zulfikar Ali

Bhutto on December 20, 1971 after the first general elections. But martial

law continued and there was no constitution. National Assembly approved a

temporary Constitution, which was imposed on April 21, 1972.

Constitution Making

Constitutional Committee comprising National Assembly (NA) members

from all parties was set up in April 1972. Law Minister was the Chairman of

this Committee. All parties agreed on the future political system in October

1972. The Committee reported on December 31, 1972. After long

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deliberations and compromises final draft was approved commonly on April

10, 1973. The new Constitution was imposed on August 14, 1973.

The Constitution functioned since then with two gaps. It remained

operational during following periods:

1973-77: Operational

1977-1985: Suspended

1985-1999: Operational after changes

1999-2002: Suspended

2002 onwards Operational after changes

Features of the Constitution

1. Parliamentary System

It was a parliamentary constitution having powerful Prime Minister (PM) as

head of government with a very weak President. President must act on the

advice of PM. All his orders were to be countersigned by PM. Prime

Minister to be elected by the NA. PM exercised all executive authority.

PM was answerable to the NA. In 1985, powers of the President were

increased. He enjoyed some discretion in appointments of

PM. He had power to break up the NA. He had the powers of appointment

of caretaker PM. He gives his assent to bills passed by the parliament or

returns these.

2. President:

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Must be at least 45 years of age, Muslim, qualified to become member of

the NA. He is elected by the Parliament and the Provincial Assemblies for 5

years.

3. Parliament with two houses:

• Upper House called Senate. In this house equal representation is given to

Provinces. Seats are reserved for the tribal areas, women and technocrats.

Its original strength was 63, which was later raised to 87 and then 100.

Senate is elected indirectly. It’s a permanent House as half of its members

are elected after three years.

• Lower House: National Assembly is elected on population basis. Its

Original strength was 210 but now it is 342. NA is elected for five years.

• Senate: Indirect elections

• National Assembly: Direct elections

• Voting age for the franchise is lowered from 21 to 18.

• Parliament under 1973 constitution is a powerful legislative body. It

enjoys all legislative powers. It has control of the executive through

questions, resolutions, parliamentary committees etc.

• National Assembly is more powerful than the Senate. Budget is presented

before NA.

Cabinet is answerable to National Assembly.

4. Federal System

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Federation of Pakistan has four provinces and federally administered areas.

Two lists are given in the constitution: Federal list and Concurrent list.

Residuary powers belong

To provinces.

5. Provincial Structure:

Provincial Governors are appointed by the President on the advice of the

PM. Elected Chief Minister exercises executive powers. Parliamentary

system is there in the provinces.

Size of the provincial assemblies varies:

In 2002:

Punjab 371

Sindh 168

NWFP 124

Balochistan 65

Enough provincial independence is guaranteed. Tradition of strong centre

continues. Centre has emergency powers. Governor’s rule can be forced if

the government cannot function in the provinces. Provinces are dependent

on centre for Finances.

6. Principles of Policy:

Islamic provisions are provided in Principles of Policy.

7. Fundamental Rights:

Fundamental Rights are protected in the constitution and are implemented

through the highest court.

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8. Islamic Provisions:

Title of the state is Islamic Republic of Pakistan.

The objectives resolution was the Preamble in the initial constitution but

through article 2-A of 8th amendment it was inserted in the constitution in

1985.

Islam was declared the State Religion of Pakistan.

Definition of Muslim was included by an amendment.

Principles of Policy also carry some Islamic clauses.

Council for Islamic Ideology is recognized under the constitution.

Federal Shariat Court was added in 1981.

9. National Language:

Urdu is declared National Language, however English may be used for

official purposes until preparations would be made for its replacement by

Urdu.

Provincial Assembly may prescribe measures for teaching, promotion and

use of a provincial language in addition to the national language.

10. National Security Council:

National Security Council was added in 2002 in advisory capacity.

11. Judiciary:

An independent judiciary is given under the constitution. Supreme Court of

Pakistan is the highest court. One High Court is established in each

province and one in Azad Kashmir. A chain of lower courts is there under

the high courts.

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12. Rigid

A constitution is rigid or flexible can be tested by seeing the procedure laid

down for its change or amendment. A flexible Constitution can legally be

amended by the same process of law-making as an ordinary law, while in a

rigid Constitution specific machinery is provided in itself by which any

change or amendment can be effected.

(Ishaq.M.Khan. (1973).

Amendment of constitutionI. A bill to amendment the constitution shall create in the national

Assembly and when the Bill has been passed by the votes of not less

than two-thirds of the total membership of Assembly it shall be

transferred to the senate.

II. If a Bill is passed by the senate with amendments it shall be

reconsidered by the National Assembly; and if the Bill as amended by

the Senate is passed by the Assembly by the votes of not less than

two-thirds of the total membership of the Assembly, it shall be

presented to the President for the assent.

III. If the Bill is passed by the Senate by a majority of the total

membership of the Senate it shall be presented to the President for

assent.

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IV. If the Bill is not passed by the Senate within ninety days from the day

of its receipt the Bill shall be deemed to have been rejected by the

senate.

V. The President shall assent to the Bill within seven days of the

presentation of the Bill to him, and if he fails to do so he shall be

deemed to have assented thereto at the expiration of that period.

VI. When the President has assented to or is deemed to have assented to

the Bill, the Bill shall become Act of Parliament and the Constitution

shall stand amended in accordance with the terms thereof.

VII. A bill to amend the Constitution which would have the effect of

altering the limits of a Province shall not be passed by the National

Assembly of that Province passed by the votes of not less than two-

thirds of the total membership of that Assembly.

Procedure for Amendment of the ConstitutionThe Committee is of the view that the process of amending the constitution

should be made difficult. It is accordingly decided that the following

procedure should be recommended.

If a notice is received signed by than one-third of the Members of a House

seeking permission for the circulation of their motion for amendment of the

Constitution amongst the Provinces for opinion, it should be placed on the

agenda of the House concerned and considered. In case it is passed by a

majority, the matter should be referred to the other House for consideration

for the same purpose. When permission is granted by the second House, the

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proposal should be circulated to the Provinces by the chairman of the House

in which it is initiated. The chairman of the legislature of every province, by

whom the proposal is received for consideration, should convey the decision

of the respective Legislature to the Chairman who circulated the proposal.

The decision in the Central as well as the Provincial Legislature should be

taken by majority of votes. If a majority of the Provinces support the

consideration of the Bill, it should be placed on the agenda of the

originating House for consideration. In case it is passed by the House with

two-thirds majority of the members present and voting, it should be

referred to the other House for similar action. If the latter House also

passes the proposal by a like majority, the amendment should be deemed to

have been passed.

(Dr. Mahmood Safdar. (1992).

Conclusion;The constitutional history of Pakistan is a reflection of all the peculiarities

and contradictions of its social, economic and political development since

independence for more than a quarter of the century. The struggle over

particular formulations in various drafts of the Constitution which went on

in the legislative bodies was often an expression of the clash between the

vital interests of the main social groups in Pakistan.

It is not surprising therefore that the struggle over many constitutional

issues (the state language, from of elections, division of powers between the

Federation and the Provinces, etc.) went on for years, leading to bloody

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clashes in which thousands of people were victims and often precipitating

acute political crises.

The constitution of 1073 was an expression of the balance of class forces

established after the political crises of 1971 and the collapse of the military

dictatorship.

The present Constitution of Pakistan is characterized by such fundamental

principles as a parliamentary republican system, federal state structure,

and proclamation of democracy, freedom, equality, tolerance and other

bourgeois-democratic freedoms, and the attainment of social justice as the

supreme aim of the state.

References1. Chaudhry.g.A, (1997).Constitutional History of Pakistan, published by

our press, Lahore, Pakistan

2. Mehmood.M, (1995). The Constitution of Islamic Republic of Pakistan,

published by markazi kutub khana, Lahore, Pakistan

3. Hassan.u.Masud, (2001). The Constitutional History of Pakistan,

printed by chaudhary Abdul Sattar press, Lahore, Pakistan

4. Khan Hamid, (2005). The Constitutional and Political History of

Pakistan, published by Ameena Saiyed, oxford university

press.Landon

5. Anjum.S.Ahsan, (1983). The Constitution of the Islamic Republic of

Pakistan, published by Mian asad Hakim Lahore, Pakistan

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6. Ali Ashfaq, (2004). The Constitution of the Islamic Republic of

Pakistan, published by khusnood Book house, Karachi, Pakistan

7. Dr.Muhammad.B, (1995). Constitution making in Pakistan, published

by Royal Book Company, Lahore, Pakistan

8. Gankovsky.V.Y & Moskalenko.N.V, (1975). The Three Constitutions of

Pakistan, publishes by Abdur Rauf Malik.Karachi, Pakistan

9. Dr. Mahmood Safdar. (1992). the constitutional Foundations of

Pakistan. Published by M.Amin, Lahore, Pakistan

10. Ishaq.M.Khan. (1973). The Constitution of the Islamic Republic

of Pakistan. Published by Khyber Law house, Lahore, Pakistan

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