Constitutional development in Paksitan
Dr. Imrana Begum
Muhammad Moiz-ul-Haq (CT-43)
Tahami Tofique (CT-60)
Pakistan came into being as an independent State on 14 August, 1947 and continued to be governed under an interim constitutional arrangement (i.e. through the Indian Act, 1947). Pakistan has had a troubled constitutional history since its very inception as a nation state. Not long after partition from India in 1947, Pakistan was plunged into a Constitutional crisis.
The provisions of the Government of India Act, 1935, had greatly influenced the state and served its legal document until 1956.
In a radio talk addressed to the people of USA broadcast in February 1948, Jinnah expressed his views regarding Pakistan’s constitution to be in the following way:
The Constitution of Pakistan is yet to be framed by the Pakistan Constituent Assembly, I do not know what the ultimate shape of the constitution is going to be, but I am sure that it will be of a democratic type, embodying the essential principles of Islam. Today these are as applicable in actual life as these were 1300 years ago. Islam and its idealism have taught us democracy. It has taught equality of man, justice and fair play to everybody. We are the inheritors of these glorious traditions and are fully alive to our responsibilities and obligations as framers of the future constitution of Pakistan.
Pakistan was founded in 1947. Before writing a constitution, a Constituent Assembly passed the Objectives Resolution, on the insistence of the ulama and Jamaat-e-Islami, in March 1949 to define the basic directive principles of the new state and to declare state recognition of the sovereignty of Allah over the universe. The Objectives Resolution affirmed the role of democracy and contained religious provisions to enable society to adhere to the teachings of the Quran and Sunnah. The Objectives Resolution has henceforth been inserted as a preamble into each of Pakistan’s subsequent constitutions.
Objectives Resolution is one of the most important documents in the constitutional history of Pakistan. It was passed by the first Constituent Assembly on 12th March 1949 under the leadership of Liaqat Ali Khan. The Objectives Resolution is one of the most important and illuminating documents in the constitutional history of Pakistan. It laid down the objectives on which the future constitution of the country was to be based and it proved to be the foundational stone of the constitutional development in Pakistan. The most significant thing was that it contained the basic principles of both Islamic political system and Western Democracy. Its importance can be ascertained from the fact that it served as preamble for the constitution of 1956, 1962 and 1973 and ultimately became the part of the Constitution when the Eighth Amendment in the Constitution of 1973 was passed in 1985.
Objective Resolution was presented in the Constituent Assembly by Liaquat Ali Khan on March 7, 1949 and was debated for five days by the members from both the treasury and opposition benches. The resolution was ultimately passed on March 12. Following were the main features of the Objectives Resolution:
1. Sovereignty of the entire Universe belongs to Allah alone
2. Authority should be delegated to the State through its people under the rules set by Allah
3. Constitution of Pakistan should be framed by the Constituent Assembly
4. State should exercise its powers through the chosen representatives
5. Principles of democracy, freedom, equality, tolerance and social justice, as inshore by Islam should be followed
6. Muslims shall live their lives according the teaching of Quran and Sunnah
7. Minorities can freely profess and practice their religion.
8. There should be Federal form of government with the maximum autonomy for the Units
9. Fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality should be given to all the citizens of the state.
10. It would be the duty of the state to safeguard the interests of minorities, backward and depressed classes.
11. Independence of judiciary should be guaranteed
12. Integrity of the territory and sovereignty of the country was to be safeguarded
13. The people of Pakistan may prosper and attain their rightful and honored place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity.
Liaquat Ali Khan explained the context of the resolution in his speech delivered in the Constituent Assembly on March 7, 1949. He termed the passage of the Objectives Resolution as “the most important occasion in the life of this country, next in importance only to the achievement of independence.’. He said that we as Muslim believed that authority vested in Allah Almighty and it should be exercised in accordance with the standards laid down in Islam. He added that this preamble had made it clear that the authority would be exercised by the chosen persons; which is the essence of democracy and it eliminates the dangers of theocracy. It emphasized on the principles of democracy, freedom, equality, tolerance, and social justice and it says that these should be part of future constitution.
After a great debate finally the resolution was adopted by the Constituent Assembly on March 12, 1949. Liaquat Ali Khan assured the minorities that they will get all the fundamental rights in Pakistan once the constitution based on the Objectives Resolution will be enforced. However, this resolution created a division on the communal lines as the Muslim members except for Mian Iftikharuddin voted in favor of it and the non-Muslim opposed it. It created a suspicion in the mind of minorities against majority. Since, the Resolution has yet not been implemented in Pakistan in the true spirit, the doubts in the minds of the minorities still exists.
Following the adoption of a constitution in India in 1950, Pakistan’s lawmakers were incentified to work on their constitution. Prime Minister Muhammad Ali and his government officials worked with the opposition parties in the country to formulate a constitution for Pakistan.
Finally, the joint work led to the promulgation of the first set of the constitution on 23 March 1956—a day when Pakistan celebrates its Republic Day over the adoption of the constitution. The constitution provided for parliamentary form of government with a unicameral legislature. It officially adopted Pakistan as “Islamic Republic” and the principle of parity was introduced. Its features were:
• Islamic Republic of Pakistan
Official name of the country was adopted
• Objectives Resolution
The objective resolution was included as preamble by the constitution.
• Head of government
System of government was Parliamentary with a prime minister as head of government.
• Unicameral Legislature
A single house, only a National Assembly that would consist of 300 members; 150 members from each East and West Pakistan
Required to be a Muslim and ceremonial head of state. In case of internal or external danger he could declare a state of emergency in the country.
• Islamic law
No law would be passed against the teachings of the Quran and Sunnah.
• Independent Judiciary
The Supreme Court as an apex court – a final arbitrator of all the decisions.
• Fundamental Rights
Fundamental rights included freedoms of movement, speech and, profession and profess religion, right to life, liberty, and property.
• National Languages
English, Urdu and Bengali were made national languages.
By the constitution, Iskander Mirza assumed the presidency but his constant involvement in national affairs, as opposed to Constitution, dismissed four elected prime ministers in two years.
Under public pressure, Mirza upheld the coup d’état in 1958, thus virtually suspending the constitution. Shortly afterwards General Ayub Khandeposed Mirza and declared himself president
After the military coup of 1958, Ayub Khan waited for some time with the intention of paving public opinion in his favour. A legislative commission was established under the leadership of Justice Shahaab-ud-din. The commission forwarded a report on 6th May 1961. Justice Manzoor Qadir designed and drafted the entire constitution. Ayub Khan with the help of a presidential ordinance enacted the new constitution on 8th June 1962. It had the following salient features:-
1. It was in written form and had the information about the state institutions and their mutual relations.
2. The constitution was not passed by the consent of the elected representatives of the people. It was the creation or brain child of a single person.
3. The constitution was president friendly; making amendments was easy only if supported and endorsed by the president or it was a very lengthy and difficult job. For making any amendment, the 2/3rd majority of the assembly had to pass the bill and then had to send it to the president. If president did not take up any objection for thirty days, the amendment was considered valid. However, the president might disapprove or send back the resolution with certain alterations. In that case, it was needed to gain the consent of 3/4th majority of assembly. The president had to give consent in ten days or had to propagate it for the opinion of Basic Democrats. In that case, the opinion of the B.D’S was considered final.
4. Apparently, it was a federal system of government with East Pakistan and West Pakistan as its units. The constitution contained the list of only federal authorities, the rest were given to the federating units. The center had the authority to intervene in the provincial matters if considered necessary.
5. Unlike previous constitutions, the Indian Act 1935 and constitution of 1956, it was presidential in its nature with all the executive powers resting with the president. He was the constitution head of government and state.
6. It was a unicameral system of government with only one house. The members of the National Assembly were elected by the basic democrats.
7. The judiciary was kept independent to the extent of theory. All the judges of the High courts had to be selected and appointed by the president with the advice of the chief justice. But president was not bound to the opinion or wishes of the Chief Justice.
8. The constitution guaranteed the basic human rights for all the citizens of Pakistan without any discrimination of cast, creed and color.
The constitution of 1962 was a one man show. It was designed for a single man. Apparently it gave many rights and securities to the people but actually it deprived the people from all kinds of political rights and their representation in the legislation.
In December 1970, nationwide general elections were held simultaneously for both the national and five provincial assemblies. The polling results turned were simply disastrous from the standpoint of national unity and demonstrated the failure of national integration. No party enjoyed the full confidence of the people of Pakistan. The nationalist Awami League (AL) secured the mandate of East Pakistan but failed to perform in any four provinces of Pakistan. The socialist Pakistan People’s Party (PPP) under the leadership of Zulfikar Ali Bhutto gained mandate in Punjab and Sind but failed in East Pakistan, NWFP and Balochistan. The general elections truly reflected the ugly political reality: the PPP’s mandate in Pakistan and AL mandate in East Pakistan.
1970 constitutional crises
Constitutional crises grew further when AL refused to make concessions over its six points to draft the constitution and instead maintaining that AL had was quiet competent to frame a constitution and to form a central government on its own.18
The PPP was not willing to dilute the authority of the federal government in spite of assuring full provincial autonomy for all the provinces of Pakistan. Negotiations on framing the work on constitution were held between January and March 1971 between leaders of PPP, AL, and the military government of Yahya Khan, which turned out to be a failure. Under the LFO, the President Yahya was to decide when the National Assembly was to meet. By 13 February 1971, the President Yahya announced that the National Assembly was to meet at Dhaka on 3 March 1971. By this time the differences between the main parties to the conflict had already crystallized. Over the six-point issue, the PPP was convinced that a federation based on six-point would lead to a feeble confederation in name only and was part of larger Indian plan to break up the Pakistan. These fears were evidently shared by the military leaders in the west, including President Yahya Khan who had publicly described Sheikh Mujibur Rehman as the ‘future Prime Minister of Pakistan’ on January 14, 1971. Bhutto announced on February 15 that his party would not attend the National Assembly unless there was ‘some amount of reciprocity’ from the Awami League. Sheikh Mujib replied at a press conference on February 21, asserting that “Our stand is absolutely clear. The constitution will be framed on the basis of the six-points”‘.
Such announcement led the PPP to demand the removal of the National Assembly session or opening session to be postponed. The PPP threatened to stage a large scale general strike in all over the country. Under pressured by PPP, President Yahya postponed the National Assembly session on 25 March which came as a shattering disillusionment to the AL and their supporters throughout East Pakistan. It was seen as a betrayal and as proof of the authorities of the Pakistan to deny them the fruits of their electoral victory. This resulted in the outbreak of violence in East Pakistan. The Awami League launched a non-co-operation movement as they virtually controlled the entire province. Due to disturbances in East Pakistan, no National Assembly session was called and the military moved in East Pakistan to control the situation. The civil disobedience movement turned into armed liberation movement backed by the India.
With India successfully intervening in the conflict, the Pakistan military surrender to the Indian military and almost over ~93,000 military personnel were taken as prisoners of war on 16 December 1971. Demoralized, gaining notoriety in the country, and finding himself unable to control the situation, President Yahya ultimately handed over the national power to PPP, of which, Zulfikar Ali Bhutto was sworn in on 20 December 1971 as President and as the (first civilian) Chief Martial Law Administrator.
After Bangladesh was formed in 1971, the PPP formed the government and partially enacted the 1962 constitution President Zulfikar Ali Bhutto called for a constitutional convention and invited the leaders of the all political parties to meet him on 17 April 1972. Leaders and constitutional experts of the Islamic politicalparties, conservative parties, socialists and communist parties were delegated to attend the constitutional convention in 1972
The 1973 Constitution of Pakistan was prepared by the first elected NA through a 25 members committee under the leadership of Abdul Hafiz Pirzada of all parliamentary parties. The constitution was approved by the Assembly on 10th April 1973 and assented to by the President on 12thApril 1973. It was enforced on 14thAugust 1973. This constitution was the first one, which enjoyed greater popular appraisal. It enjoyed and still enjoys a great respect and is acknowledged as the best constitution ever produced in Pakistan.
Below are the salient features of the Constitution of Pakistan 1973.
A Written and Lengthy Document
Pakistan 3rd constitution of 1973 is like its previous counterparts written in nature and character. It is one of the lengthiest constitutions of the world, consisting of a Preamble and 280 Articles, classified into 12 Chapters and 6 Schedules. Most of the principles of the constitutional laws have been specified in the constitution to avoid all possible ambiguities. Hence it is comprehensive and comparatively more detailed than the previous ones.
The 1973 Constitution of Pakistanis strictly based on Islamic ideology. Article-1 of the constitution declares Pakistan to be an Islamic polity. The Muslims were advices to implement the teachings of Quran and Sunnah in the daily life. Islam shall be the state religion. Besides, the Council of Islamic Ideology it has been made obligatory for the President and Prime Minister to be Muslim.
According to Article-I of the constitution, Pakistan shall be federal republic to be known as Islamic Republic or Pakistan. There are two legislative lists – the Federal List and the Concurrent List. The central government has exclusive right to legislate on all matters enumerated in the Federal List. As far as the Concurrent List is concerned, both the central and the provincial governments can make laws on their subjects, however, in case of conflict the central law will prevail while the other will stand invalid. The residuary powers are vested in the provincial governments. Although the provincial autonomy has been ensured but the supremacy of the federal government has been recognized in various legislative, administrative and fiscal matters.
The 1973 constitution establishes a parliamentary form of government. The Prime Minister and the cabinet ministers belong to Parliament and are responsible to it for their conduct and policies. They remain in office so long as they enjoy the confidence of the majority members. The Parliament can pass a vote of No-Confidence against them. The President is the head of State and the Prime Minister is the head of Government. The President has to act on the advice of Prime Minister.
Unlike the previous practices the present political system is characterized by bicameralism called Majlis-e-Shura (Article-50) consisting of two Houses – the National Assembly and the Senate. The former is the lower and popular house chamber directly elected for a period of 5 years. Its total strength is 217 (under LFO 342) while the Senate is the upper chamber, which represents the units. It consists of 87 members (under LFO 100) who are indirectly elected for a term of 6 years. Both the houses share equal powers in respect of legislation but in certain matters the National Assembly is more powerful especially in matters of financial legislation.
The constitution of 1973 incorporates all the fundamental rights that were ensured under the defunct constitution. Neither the Parliament nor the provincial assemblies are authorized to enact laws repugnant to these rights otherwise the courts will declared such laws to be unconstitutional. Some of these rights include freedom of movement, freedom of assembly, association, profession, speech and freedom of religion, right to property, equality before law etc.
Independence of Judiciary in 1973 Constitution
Under the Constitution of 1973 proper safeguards have been provided to ensure independence of judiciary. Judges of the superior courts once appointed can only be removed on the basis of inquiry report submitted by Supreme Judicial Council. Thus they enjoy full security of office. They receive huge salaries along with many other allowances. There is single judicial hierarchy with Supreme Court at the top and the High Court next in order.
Directive Principles of State Policy
Directive Principles of State Policy lay down the basic objectives and future plan of action of the political system. All the government agencies take guidance from these principles. However, their realization depends upon the availability of resources, commitment of the decision makers and the contemporary environment. Hence their violation is not an offence or illegal action. Most of the Islamic provisions of the constitution are part of the directive principles of the state policy especially those dealing with the enforcement of socio-economic justice
Rule of Law
All citizens arc ensured equal protection of law. It is explicitly laid down in the constitution that the executive has no power to deprive a citizen of his life, liberty, property and equality etc. nor can a person be stopped from doing certain things which one is entitled to do under law. The courts can issue different types of order for the protection of law.
Position of the President
The President is the chief executive head of the state. He is assisted by the Prime Minister and his cabinet ministers for running the governmental machinery smoothly. He represents the unity of the republic. He is chosen for a period 5 years by members of Parliament and all the provincial assemblies. All the executive authority is vested in him. He appoints all the top-ranking military and civil officials of the state. All the bills passed by Parliament must be assented to by him. He can summon and prorogue either house of the Parliament. He can also dissolve the National Assembly on the advice of the Prime Minister and can issue ordinances. He has a great say in the foreign policy of the nation.
A Rigid Constitution
The 1973 constitution of Pakistan is a rigid constitution but it is not so rigid like that of US Constitution. Article-239 provides a very rigid procedure of amending the constitution. A bill to amend the constitution must be passed by both the houses of Parliament separately by 2/3rd majority vote. After that the bill is to be submitted to the President for his assent. If the President signs the bill, the constitution will be amended accordingly.
Unlike the previous documents, the Constitution cannot be changed, instead constitutional amendments are passed; altering its effect. Amendments to the Constitution are made through the Parliament, where a Two-thirds majority and voting is required in both houses for a constitutional amendment to take its effect, in accordance to the Constitution. In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures.
As of 2015, 21 amendments have been introduced to the Constitution. Among the most important of these are the Eighth (1985) and Seventeenth Amendments (2004), which changed the government from a parliamentary system to a semi-presidential system. However, in 2010 the Eighteenth Amendment reversed these expansions of presidential powers, returning the government to a parliamentary republic, and also defined any attempt to subvert, abrogate, or suspend the constitution as an act of high treason.