Constitutional development in pakistan by Ammara Battool iiui
ConstitutionalDevelopment in Pakistan
Constitution is a set of laws/principles may be written or unwritten on which a country is acknowledged to be governed. The system of fundamental laws and principles that prescribes the nature, functions, and limits of a government or another institution. Constitution is the fundamental law of the land and it is from this source that all the laws spring. body of rules which regulates the system of government within a state.
InMuslim states, particularly Pakistan, 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.
Federal and unitary constitutions 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.
Constitutionsare sometimes classified into “republican” and |”monarchical”. There is difference between popular or democratic 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.
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.
The English constitution involves one central government which pervades the whole country. 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 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.
The constitution is fundamental or organic or supreme law standing on a somewhat higher position than the other laws of the country. 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. 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.
Thefirst 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 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.
Minto-Marley Reforms 1909: The Act of 1909 enlarged the size of Legislative Council. It was provided that the imperial Legislative Council shall consist of 37 official and 32 non- 0fficial members. 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. 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.
The functions of the Legislative Councils were increased The members were given the right of asking question and supplementary questions for the purpose of further elucidating any point. The members were given the power to move resolutions in the Councils. In the provinces, Landlords, district Boards and Municipalities and Chambers of Commerce were to select members. Muslims were given separate representation. Muslim members of the legislation were elected by the Muslims themselves.
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. 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.
Direct elections were provided for both houses of the Central Legislative though the franchise was very restricted. 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 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
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. The Central Budget was presented before the Central Legislature in the form of demands for grants.
The acceptance of an All India Federation. 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.
There were three basic purposes of the Act:- Establishment of a Federation. Provincial autonomy with parliamentary Government. The separation of Burma from India
Provincial Autonomy All India Federation Diarchy at the Centre: Safeguards: Rigid Constitution
Pakistan was to be federal republic based on Islamic Ideology. A detailed and comprehensive list of fundamental rights with an Independent Judiciary was provided in the constitution. The system of the parliamentary form of government was adopted both at the Centre and in the provinces. There was distribution of powers between the Centre and the provinces. The constitution provided for Pakistan, wherein equality between East and West wings had been maintained. For the distribution of subjects between the centre and the provinces, three lists of subject had been drawn up.
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. It had provided for two National languages Urdu for the West Pakistan and Bengali for the East Pakistan. Instead of double citizenship, one citizenship system was provided for the Federation of Pakistan. The constitution was silent as to be method of conducting elections both for the Central and the Provincial legislatures. And finally, there were the Islamic characters of the constitution.
The name of the country will be Islamic republic of Pakistan. The preamble of the constitution embodied the sovereignty of God Almighty. The Head of the State shall be a Muslim. Islamic Advisory Council shall be set up. No Law detrimental to Islam shall be enacted
Title of the State will be Islamic Republic of Pakistan. 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. 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.
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. 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. Financial Powers of NA were limited. Only new expenses could be voted. NA could not reject join Fund List and Recurring Expenditure. 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.
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. 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.
Parliamentary System President: Parliament with two houses Federal System Provincial Structure: Principles of Policy: Fundamental Rights: Islamic Provisions: National Language: Judiciary: Rigid
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. 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. 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. 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.
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. 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. 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.
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 clashes in which thousands of people were victims and often precipitating acute political crises.
The constitution of 1973 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.