Constitutional development in pakistan by ammara batool iiui


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Constitutional development in pakistan by ammara batool iiui

  1. 1. Table of Content:Constitution, Its Meaning, Kinds and Rules Of Interpertation.......................................... 2Islamic point of view about constitution: ........................................................................... 6Constitution making ............................................................................................................ 7Constitutional history of Pakistan: ..................................................................................... 8Constitution of 1956: ......................................................................................................... 21Constitution of 1962: ......................................................................................................... 23Constitution of 1973 .......................................................................................................... 25Amendment of constitution .............................................................................................. 29Procedure for Amendment of the Constitution ................................................................ 30Conclusion; ........................................................................................................................ 31References ......................................................................................................................... 32 1
  2. 2. Constitution, Its Meaning, inds and Rules of Interpertation:Constitution is the fundamental law of the land and it is from this source that all thelaws spring. This law can be made or altered not in the manner of ordinary laws but in amuch different way, that is, by a defined authority and in the prescribed manner. As faras Muslim states, particularly Pakistan, are concerned the laws are not derived from theconstitution but from the Almighty Allah who has revealed them in his book and whichhave been interpreted and explained by Holy Prophet Mohammad (PBUH) through hissayings. Conduct and actual practice. For practical purpose we can assume that lawswhich are not repugnant to the holy Quran and Sunnah have to be framed under theauthority 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 mostlyconsist of constitutional as ages, traditions and conventions, or written, as most of themodern constitutions are. Or partly unwritten. A written constitution is usually rigidand inflexible in as much as, intended to be permanent, it does not admit of alterationby ordinary legislative process and requires some extraordinary procedure for itsamendment. A constitution may be Unitarian or federal according to whether powerresets in the centre or is distributed between it and the federating units. A Unitarianconstitution is flexible if it can be amended by ordinary legislative process and rigid if itrequires a special procedure for its alteration.(Anjum.S.Ahsan.1983) 2
  3. 3. Kinds of Constitution: Federal and unitary constitutionsThis classification is based on the principle by which the powers of government and theconstitution government established for its constituent parts. Under a federalconstitution there is a scheme of distribution of powers between the central and localunits which are to a certain extent independent within their own territorial limits. Thecentral government has its own sphere of operation of its laws, while the federatingunits are governed by their own laws. No one is subordinate nor are acts as an agent ofthe other, e.g. the constitution of Switzerland, Australia and India.In the unitary constitution the legislature of the whole country is the supreme lawmaking body which may permit other legislatures to exist subordinates to it. Sweden,New Zealand, France, have unitary constitutions. Republican and monarchical( Autocratic )constitutionsConstitutions are sometimes classified into “republican” and |”monarchical”. There isdifference between popular or democratic government as opposed to an autocracy ordictatorship which established absolutism of the executive. It is difficult to find todayeven one solitary example of the latter type of the constitution. A republican constitutionon the other hand illustrates almost every system of government from democracy todictatorship. 3
  4. 4. ConventionalThe English constitution is based largely upon rules of practice, or convention. Many ofthe rules of the English constitutional government possess merely a conventionalcharacter. This is shown by the fact that no legal proceedings can be taken for a breachof their established terms, since they are merely matters of practice. The conventions ofthe constitution are in the last resort founded upon the law of the land; and they havetheir sanction in the force of law. UnitaryThe English constitution involves one central government which pervades the wholecountry. FlexibleIn flexible constitution every law of every description can legally be changed with thesame 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 constantchanges. But at the same time there is this advantage that it facilitates all necessarychanges required by the changing political and economic ideas and circumstances, andsecures the growth of the constitution without the possibility of any revolution. TheEnglish constitution with the supremacy of parliament is an instance of a flexibleconstitution. 4
  5. 5. RigidA rigid constitution on the other hand is one under which certain laws cannot bechanged in the same manner as ordinary laws. They can be altered or amended by thespecial 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. 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. 5
  6. 6. 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. 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 IslamMohammad (pbuh) when he migrated to madina and foundation was laid for thegovernment of a city state. This constitution was framed and put into effect with the fullconsensus of not only the followers of the prophet Mohammad (pbuh) but also had theconcurrence of the Jews and other non-converts. The constitution thus framed gave thedetails of the rights and duties of the ruler and the ruled. 6
  7. 7. The characteristic of Muslim administration had been that the people including therulers were subject to shariat and it was enforced with greater force of equity, justiceand good conscience in the case of those who did not embrace the faith of Islam. Suchnotions as “the king can do no wrong”, “the king cannot be tried in his own court”, “actof state” and “privilege” etc, are unknown to Islamic jurisprudence. Even the first fourrightly guided caliphs had great respect for the law and would humbly appear before theQazi if ever such an occasion arose.Muslim theologians and jurists believe in the supremacy of the law as laid down in theholy Quran and interpreted by Sunnah and hold it to be eternal and immutable. This lawwas 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 istherefore a sacred trust on behalf of Allah and must be exercised within the limitsprescribed by Him.(Mehmood.M,1995).Constitution makingThe constituent assembly of Pakistan could not, frame a constitution during the lifetimeof the quaid-e-azam. In March 1949 a resolution known as the objectives Resolutioncame to be passed by unanimous vote of the house. This resolution merely enunciatedthe principles or guidelines on which the constitution was to be framed and could wellbe regarded as the preamble of the constitution of Pakistan.The constitution – making went on till in 1954 a draft of the constitution was preparedwith the leaders of the various groups in the assembly but in October, 1054 Mr. GhulamMuhammad, the then Governor- General, put armed guards outside the assembly hall, 7
  8. 8. dissolved the constituent assembly by proclamation and allowed none to enter thepremises so as to pass the constitution. This step was taken by him to keep his gaddiintact and for life, because he knew full well that he would have to vacate the office infavor of the duly elected representative of the people.Maulvi Tamizuddin Khan, the speaker of the Constituent Assembly challenged hisresolution in the chief court of sindh and sought for a declaration that the orders of theGovernor-General were unauthorized, unconstitutional, and illegal and without force.The Chief court issued a write restraining the governor- General. The matter went up inappeal to the Federal Court headed by justice Munir who allowed the appeal anddismissed the writ petition.The federal court judgment in us if paatel case observed that the first concern of theGovernment would have been to bring into existence another representative body toexercise the powers of the Constituent Assembly so that all invalid legislation could havebeen immediately validated by the new body.Acting on this advice a new Constituent Assembly was elected by the members of theProvincial Assemblies on basis of proportional representation and this Assemblysucceeded 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 havecommenced from Indian independence act, 1947 but there are certain important 8
  9. 9. enactments which tell us at least a part of story and furnish implied source of historicalbackground.Indian act 1858:Although the war of independence 1857, could not achieve the object for which it wasfought but it certainly put an end to the rule of East India Company. It was realized thata trading company whose main objective was profit could not be entrusted with thework of administration of a sub-continent like India. A bill was introduced by LordPalmerstone for the better Government of India in Parliament, which was passed andbecame Government of India Act 1858, the first most important constitutionaldocument in the history of sub-continent. This act abolished the East India Companyand transferred the government of India from the hands of East India Company to theCrown.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.Indian Council’s Act 1861: 9
  10. 10. The act of 1858 which transferred the Government of India into the hands of the Crowndid not make any change in the Indian administration. It was therefore necessary thatsomething should be done to reform the Indian machinery also. That was done by theAct 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 ofIndo-Pakistan. It made a beginning in representative institutions and legislativedevolution. Herein the policy of association was given effect to. However, it may benoted that the non-official members of the Council were nominated by the Viceroy adnot elected by the people. The legislative power given to these Councils was very widebut was put under severe restrictions. The non-official members had practically no say 10
  11. 11. in the matter. In this way, the Act of 1861 was defective and required improvements ofrepresentative 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 hollowprovisions of the Act of 1892, with the result that the period between 1892 to 1909 wasone of storm and stress. The people resented autocratic attitude of the Government. Theagitation 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 separaterepresentation of Muslims. In December 1909 the Nawab of Dacca appealed to theMuslims of India to form the All India Muslim Confederacy’. Lord Minto, the then 11
  12. 12. Viceroy of India took a serious note of the situation and reported the matter to theHome Government. In December, 1906 Lord Morley introduced his famous Bill in theHouse 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. 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. 12
  13. 13. 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. (Khan Hamid, 2005)Government of India Act 1919:The preamble of the Government of India Act 1919 stated that it was the declaredpolicy of the British Parliament to provide for increasing association of Indians inevery branch of administration and for the gradual development of self-governinginstitutions, with a view of the progressive realization of responsible government inBritish India. However, it said, progress in giving effect to this policy could only beachieved 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 13
  14. 14. 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.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. 14
  15. 15. 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. 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. Itwas 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 afederal constitution and also because it sought to provide legal safeguards againstmisbehavior on the part of the Indian Ministers and the legislature.Special features of the Act of 1935:  The acceptance of an All India Federation.  The introduction of partial responsibility in the form of diarchy at the Centre. 15
  16. 16.  The grant of autonomy to the provinces.  Safeguards, reservations, special responsibilities, overriding Powers, 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 ofdraftsmanship, it is the most complicated instrument in the whole history ofConstitutional development in India. The complexity arises from various reasons,the chief of which is unique nature of the problem which the scheme was designed tosolve.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:Provincial Autonomy:It introduced responsible governments in the provinces which came to be known asprovincial autonomy. Under it the whole provincial administration, with certain 16
  17. 17. reservations, was transferred to the control of Indian Ministers, working on cabinetprinciples, responsible to provincial Legislatures.All India Federation:The Act also proposed to abolish the unitary front of government which had beenworking in India since the regulating Act. Its place was to be taken by an All IndiaFederation compromising 11 provinces (Governors) and 5 provinces (ChiefCommissioners) plus such states, as were willing to join the Federation. Thus for thefirst time the whole of India including Indian states was to be integrated under oneConstitution.Diarchy at the Centre:The act proposed to establish Diarchy at the centre, i.e. Diarchy was to be abolishedin the provinces, only to be crated at the centre. The central administration was to bedivided into two parts. One part to be in charge of the Councilors, responsible to theGovernor General alone, and it included some key departments.Safeguards: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 17
  18. 18. 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 1956The modified Government of India Act (1935) became the Interim Constitution ofPakistan in1947. The Constituent Assembly (CA) was given the task of framing theConstitution. The process began with the passing of the Objectives Resolution in whichthe Islamic and democratic values were adopted as grounds for the future constitution.The Basic Principles Committee (BPC) consisting of 24 members was made to work forthe 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, 19501: 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 18
  19. 19. Lower: (House of People) On the basis of Population. Both the Houses would benefitfrom 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 wasnot responsible to give answer to anyone, might be a Muslim or non-Muslim, would beassist 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 theconstitution.4: Cabinet responsible to both the Houses.5: No mention of national languageCriticism:This report was severely criticized throughout the country. It could not suit both thewings, East and West. The religious group objects that the report contained nothingabout Islamisation. On the question of depiction, the East Pakistan (EP) protested thattheir majority had been denied by the Report. They remark that they were thrown into apermanent minority. The population of EP was a little larger than that of the WestPakistan (WP) but it was treated as theSmall provinces because both the Houses were given equal power. So the authority ofWP was intolerable for the East wing. The language problem proves dissident to thenational solidarity. The Eastern Pakistanis destined the proposal that made Urdu asofficial language.Second Basic Principle Committee Report, 19521. Head of State would be Muslim and no change in powers.2. Equal representation to East and West wings: 19
  20. 20. UH (Upper House) 60, 60 LH 200, 2003. More powers were given to Lower House. Cabinet was made responsible to LowerHouse.4. It was promised that law making would be in accordance with ISLAM. No law wouldbe 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 ofthe UH on the basis of representation was not suitable. It was stated against theprinciple of federation.The WP superior equality only for Upper House. The political crisis removed PrimeMinister Nazimuddin and attention unfocused from the main issue.Constituent Assembly DissolutionIn October 1954, GG (Governor General) dissolved the CA that was challenged in theSindh court by Maulvi Tamizuddin. The court confirmed the dissolution illegal but theFederal Court upholds the GG action but asked for setting up an elected CA.2nd Constituent Assembly, June-July 1955Ghulam Muhammad called a Convention on May 10, 1955. All its members were to beelected not directly (by the provincial assemblies). In this way, the 2nd CA came intosurvivalOne Unit Scheme, October 1955The presence of different provinces in the WP had complicated the issue of the WPrepresentation in the CA. It was handled by uniting all the WP units into ONE (One 20
  21. 21. Unit, October 30, 1955). Now both the parts had become two units and could beaddressed equally.(Dr.Muhammad.B, 1995)Constitution-makingOne Unit scheme helped the task of constitution making to achieve successfully. Theprevious committees report helped the new Assembly that completed its work andpresented in the 2nd CA on January 9, 1956. It, with certain amendments, was approvedon January 29, 1956 and imposed on March 23. With this Pakistan had become anIslamic Republic.Constitution of 1956:The first constitution of the country was enforced on 23rd march, 1956. The main pointsof 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. 21
  22. 22. 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. 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 firstconstitution was enforced. The political instability remained rampant. The electionscould not be held till 1858. The constitution invited criticism from certain quarters.Martial Law was declared in the Country on 8th October, 1958. General Ayub,commander in chief of the Army, took over the government and became the Head of theState on 27th October 1958.After taking over President Ayub Khan set up a constitutional commission under justiceShahab-ud-Din to suggest recommendation for the new constitution of the country. Thecommission after through and lengthy discussion submitted its report on 6th March1961. 22
  23. 23. The report was examined by president. In its report the commission highlighted thereasons of the failure of parliamentary democracy in Pakistan. It fixed the responsibilityfor the debacle of democracy on the lack of dedicated leadership, absence of wellorganized political parties and the self aggrandizement of the greedy politicians. In theview of the recommendation of the commission a new constitution was not framed by aconstitutional body which was elected nor did it enjoy popular support. The constitutionwas 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. 23
  24. 24. 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. 11. Originally Political Parties were not allowed. Political Parties Act was introduced in 1962. 24
  25. 25. 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 1973BackgroundAbrogation of the 1962 Constitution on March 25, 1969 led to second martial law in thecountry. Yahya Khan handed over power to Zulfikar Ali Bhutto on December 20, 1971after the first general elections. But martial law continued and there was noconstitution. National Assembly approved a temporary Constitution, which wasimposed on April 21, 1972.Constitution MakingConstitutional Committee comprising National Assembly (NA) members from allparties was set up in April 1972. Law Minister was the Chairman of this Committee. Allparties agreed on the future political system in October 1972. The Committee reportedon December 31, 1972. After long deliberations and compromises final draft wasapproved 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 duringfollowing periods: 25
  26. 26. 1973-77: Operational1977-1985: Suspended1985-1999: Operational after changes1999-2002: Suspended2002 onwards Operational after changesFeatures of the Constitution 1. Parliamentary SystemIt was a parliamentary constitution having powerful Prime Minister (PM) as head ofgovernment with a very weak President. President must act on the advice of PM. All hisorders were to be countersigned by PM. Prime Minister to be elected by the NA. PMexercised all executive authority.PM was answerable to the NA. In 1985, powers of the President were increased. Heenjoyed some discretion in appointments ofPM. He had power to break up the NA. He had the powers of appointment of caretakerPM. He gives his assent to bills passed by the parliament or returns these. 2. President:Must be at least 45 years of age, Muslim, qualified to become member of the NA. He iselected 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 was63, which was later raised to 87 and then 100. Senate is elected indirectly. It’s apermanent House as half of its members are elected after three years. 26
  27. 27. • Lower House: National Assembly is elected on population basis. Its Original strengthwas 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 alllegislative 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 SystemFederation of Pakistan has four provinces and federally administered areas. Two listsare given in the constitution: Federal list and Concurrent list. Residuary powers belongTo provinces. 5. Provincial Structure:Provincial Governors are appointed by the President on the advice of the PM. ElectedChief Minister exercises executive powers. Parliamentary system is there in theprovinces.Size of the provincial assemblies varies:In 2002:Punjab 371Sindh 168NWFP 124Balochistan 65 27
  28. 28. Enough provincial independence is guaranteed. Tradition of strong centre continues.Centre has emergency powers. Governor’s rule can be forced if the government cannotfunction 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 thehighest court. 8. Islamic Provisions:Title of the state is Islamic Republic of Pakistan.The objectives resolution was the Preamble in the initial constitution but through article2-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 purposesuntil preparations would be made for its replacement by Urdu.Provincial Assembly may prescribe measures for teaching, promotion and use of aprovincial language in addition to the national language. 10. National Security Council:National Security Council was added in 2002 in advisory capacity. 28
  29. 29. 11. Judiciary:An independent judiciary is given under the constitution. Supreme Court of Pakistan isthe highest court. One High Court is established in each province and one in AzadKashmir. A chain of lower courts is there under the high courts. 12. RigidA constitution is rigid or flexible can be tested by seeing the procedure laid down for itschange or amendment. A flexible Constitution can legally be amended by the sameprocess of law-making as an ordinary law, while in a rigid Constitution specificmachinery is provided in itself by which any change or amendment can be effected.(Ishaq.M.Khan. (1973).Amendment of constitution I. 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.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. 29
  30. 30. 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 bemade difficult. It is accordingly decided that the following procedure should berecommended.If a notice is received signed by than one-third of the Members of a House seekingpermission for the circulation of their motion for amendment of the Constitutionamongst the Provinces for opinion, it should be placed on the agenda of the Houseconcerned and considered. In case it is passed by a majority, the matter should bereferred to the other House for consideration for the same purpose. When permission isgranted by the second House, the proposal should be circulated to the Provinces by thechairman of the House in which it is initiated. The chairman of the legislature of everyprovince, by whom the proposal is received for consideration, should convey thedecision of the respective Legislature to the Chairman who circulated the proposal. Thedecision in the Central as well as the Provincial Legislature should be taken by majority 30
  31. 31. of votes. If a majority of the Provinces support the consideration of the Bill, it should beplaced on the agenda of the originating House for consideration. In case it is passed bythe House with two-thirds majority of the members present and voting, it should bereferred to the other House for similar action. If the latter House also passes theproposal 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 andcontradictions of its social, economic and political development since independence formore than a quarter of the century. The struggle over particular formulations in variousdrafts of the Constitution which went on in the legislative bodies was often anexpression 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 statelanguage, from of elections, division of powers between the Federation and theProvinces, etc.) went on for years, leading to bloody clashes in which thousands ofpeople were victims and often precipitating acute political crises.The constitution of 1073 was an expression of the balance of class forces establishedafter the political crises of 1971 and the collapse of the military dictatorship.The present Constitution of Pakistan is characterized by such fundamental principles asa parliamentary republican system, federal state structure, and proclamation ofdemocracy, freedom, equality, tolerance and other bourgeois-democratic freedoms, andthe attainment of social justice as the supreme aim of the state. 31
  32. 32. References 1. 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 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 32