CONSTITUTION OF PAKISTAN

AND PEOPLES’ RIGHTS

THE NETWORK PUBLICATIONS

 Contents
Title: Constitution of Pakistan and Peoples' Rights

Author: Nazeer Ahmad

Preface

Executive Summary 2

All rights reserved. Any part of this publication may be reproduced or translated Constitution and Rights: An Introductory Framework 5
with prior permission of The Network for Consumer Protection. What is Constitution?
Why Constitutions?
Conceptual Basis of Constitution
First published April 2004 Constitution and Rights
Second Edition September 2004 Typology of Rights
Rights, Democracy and Development
ISBN 969-8807-00-4 Constitutional Design and Rights

Constitutional Milestones 8
This publication was made possible with support provided by The Asia Representative Institutions in British India
Foundation and the U.S. Agency for International Development. The Government of India Act of 1935
opinions expressed here are those of the author(s) and do not necessarily Independence Act of 1947
reflect the views of The Asia Foundation or the U.S. Agency for Interim Constitution of 1947
International Development. Objectives Resolution
Constitution of 1956
Constitution of 1962: Presidential System
Constitution of 1973
Cover designed by Abdul Hameed Legal Framework Order
Layout by Mohammad Rafiq Seventeenth Constitutional Amendment
Printed in Pakistan by Khursheed Printers (Pvt) Limited, Islamabad
Rights in the Constitution 13
What is a Right?
What are Fundamental Rights?
Enforcement of Fundamental Rights
Published by Fundamental Rights and Constitution Making
Centre for Democratic Governance Constitution of 1973
The Network for Consumer Protection General Provisions on Rights
40-A Ramzan Plaza, G-9 Markaz Fundamental Rights
Islamabad, PAKISTAN Principles of Policy

e-mail: cdg@thenetwork.org.pk Executive-Legislature Relations 22

website : www.cdg.org.pk What is Parliamentary System?
www.thenetwork.org.pk History of Executive-Legislature Relations
Constitution of Pakistan and Peoples’ Rights
Constitution of 1973: Era of Parliamentary Sovereignty
Eighth Amendment: Erosion of Parliamentary Sovereignty
Thirteenth Amendment: Restoration of Parliamentary Sovereignty
Legal Framework Order: Revival of Eighth Amendment
Seventeenth Constitutional Amendment
Relations between Federation and Provinces
Federalism
Fundamental Principles of Federalism
Constitutional Background
Constitution of 1973
Amendments in Constitution of 1973
Judiciary and Rights
Fundamental Rights
Rights of Provinces
Appointment and Accountability of Judiciary
Conclusions: Denial of Rights and the Constitution
Pakistan's Constitutional Mayhem
Suspension of Fundamental Rights
Rights of Minorities
Executive-Dominated Parliamentary System: Denial of Political Rights
Federalism and Rights of Provinces
Independence and Predictability of Judiciary
Chronology of Political and Constitutional
Developments in Pakistan
Notes and References
Suggested Readings
Appendix A: Amendments in the Constitution of 1973
Appendix B: Pakistan's Ranking in Political and Civil Rights
Appendix C: International Human Rights Instruments:
Comparative Profile
Appendix D: Judicial Response: Military Coups
and Dissolution of Parliaments
Preface
Fifty-seven years ago, when the people of Pakistan won independence from the British, they
awaited a great metamorphosis. From being the subjects of a powerful and brutal empire,
they were to become citizens of a free country, a homeland that was to be shaped by their
dreams and aspirations. Independence, however, soon turned into a "false dawn" and people
realized that it meant little more than a change of masters. The promise of equitable devel-
opment and democratic rule in the country has eluded the people ever since, with the ruling
elite faithfully sticking to its colonial mindset and methods of subjugation.
30
As the world discovers the importance of good governance in solving some of the most press-
ing problems confronting the developing world, the civil society in Pakistan is also increas-
ing its engagement with key public issues. It is cognizant of the fact that meaningful devel-
opment effort must pay attention to issues of public policy, governance and citizens' rights.
Moreover, “good politics” must precede and reinforce good governance.
This paper is the first in a series of publications intended to contribute to the larger civil soci-
34
ety struggle for realizing the cherished dream of development and democracy. These publi-
cations are aimed at raising people's awareness on vital political, social and economic issues.
They seek to break the silence, ignite public debate and open a serious dialogue, thereby
strengthening the demand for democracy and good governance.
35 The paper is an attempt to demystify the constitution and to understand the nature and scope
of constitutional rights of the people. Generally, people in Pakistan know constitution only as
a controversy! Few would know their rights and entitlements provided comprehensively in
the same document but which have never been a subject of public debate.The paper provides
a comprehensive framework for understanding linkages between the constitution and rights,
highlighting the importance of constitutional design and also constitutionally defined exec-
utive-legislature and centre-provinces relationship for securing rights.
The research for this issue paper was undertaken by Mr. Nazeer Ahmad, an established polit-
40
ical researcher with wide experience. We appreciate his untiring work that made this publi-
cation possible. The paper was reviewed by no less authority than Mr. Hamid Khan, one of
Pakistan's foremost constitutional lawyers and former President of the Supreme Court Bar
43
Association. Syed Fakhar Imam, former Speaker of the National Assembly and a veteran
politician, also read the draft and obliged us with his valuable comments.
47
I appreciate the partnership and support of The Asia Foundation for this project, and hope that
49 it will mark the beginning of a long association. The project team led by Zaigham Khan has
done a commendable job and I congratulate him and his project colleagues, Raja Ehsan Aziz,
50 Mohammad Najeeb, Haniya Aslam and M.Y. Khan. We are also thankful to all SDDP (Sup-
porting Democratic Development in Pakistan) project partners who contributed in the initial
53 discussions that brought clarity to our efforts.
The publications will be accompanied by countrywide public dialogues, round tables and
other activities by The Network and other civil society partners to increase awareness on
54 these issues. I look forward to this paper triggering a vigorous debate among citizens and con-
tributing towards the larger goal of democratic development in the country.
Dr. Zafar Mirza
Executive Coordinator
The Network for Consumer Protection

Executive Summary
A constitution is a fundamental law
of a state that provides a basic
framework for governance, law-
making and policy formulation.
The most important aspect of a con-
stitution is the provision and protec-
tion of rights. There is increasing
emphasis, in recent years, on inclu-
sion of human rights in national
constitutions and legal regimes.
Rights may be broadly classified
into two types: civil and political
rights, and economic, social and
cultural rights. Both categories are
included in the international legal
regime of rights. There exist key
linkages between the two types and
also between rights on the one hand
and democracy and development
on the other.
Fundamental rights constitute a
comprehensive concept of rights,
and include a wide range of politi-
cal and civil rights. An essential
characteristic of fundamental rights
is that they impose limitations on
public authorities - legislature,
executive and judiciary, prohibiting
interference in exercising of these
rights.
A country's constitutional design
significantly affects state of rights.
The main principles of a constitu-
tional design which can ensure
rights are: (1) avoidance of major
Constitution of Pakistan and Peoples’ Rights
and frequent changes in the consti-
tution; (2) checks and balances
based on separation of powers and
independence of judiciary and leg-
islature; (3) effective civilian con-
trol over the military; (4) competi-
tive political system; (5) function-
ing government; (6) rights of
minorities; and (7) devolution of
power.
The British introduced modern con-
stitutional concepts, institutions and
procedures in the subcontinent. The
Indian Councils Act of 1861 pro-
vided for a rudimentary framework
for legislation and administration in
British India. The Government of
India Acts of 1909 and 1919
strengthened the principle of repre-
sentation and expanded the voting
rights. The Government of India
Act of 1935 made the provinces
separate legal entities.
After independence, the Objectives
Resolution of March 1949 laid the
foundations for the future constitu-
tion of Pakistan. The first ever Con-
stitution was passed by the second
Constituent Assembly in 1956,
declaring Pakistan an Islamic
Republic with a federal-parliamen-
2
tary system. General Ayub Khan
promulgated the second Constitu-
tion in 1962, introducing a presi-
dential form of government. The
third Constitution was adopted in
Constitution of Pakistan and Peoples’ Rights
1973, establishing a federal-parlia-
mentary system. This historic docu-
ment has survived for 31 years,
though with various amendments.
A total of fourteen amendments,
out of the seventeen moved in the
legislature, have so far been insti-
tuted in the Constitution. The
amendments reverse some of the
basic features of the original Con-
stitution of 1973 and restrict funda-
mental rights and rights of the
provinces.
The first ever Constitutional Com-
mittee, set up in the inaugural ses-
sion of the Constituent Assembly of
Pakistan on August 12, 1947 was
on "Fundamental Rights of the Cit-
izens of Pakistan" and "Matters
relating to Minorities". It under-
lines the importance accorded by
the founders of Pakistan to funda-
mental rights and particularly the
rights of minorities in the constitu-
tion of the new state. Pursuant to
the report of the Committee,
detailed provisions on rights of cit-
izens were included in the Constitu-
tions of 1956, 1962 and 1973.
Even though several provisions of
the Constitution prohibit discrimi-
nation against minorities, Pakistan's
record on preserving minority
rights remains questionable.
Pakistan lags behind other states in
South Asia in comparative standing
on rights. Its record on civil and
political rights and in respect of
signing and ratification of interna-
3
tional conventions on human rights
is equally deficient.
Pakistan's turbulent constitutional
history is replete with problems
impinging on the state of rights, be
it absence of constitutional gover-
nance, an executive-dominated sys-
tem or a strong central government.
The abrogation or suspension of
Constitutions has led to the denial
of fundamental rights and civil lib-
erties. Constitutional engineering
aimed at diluting democratic order
in the country has resulted in ero-
sion of people's civil and political
rights.
Notwithstanding constitutional pro-
visions on fundamental rights and
their enforceability through the
superior courts, a prolonged state of
emergency in the country has
undermined implementation of
these rights. Thus fundamental
rights have not been justiciable for
36 out of Pakistan's 57 years of
existence. These 36 years include a
substantial period in which there
were functioning parliaments.
An executive-dominated system in
the country has generally resulted
in denial of rights. In fact, Pakistan
has been oscillating between execu-
tive-controlled civilian govern-
ments and military rule with the
exception of only two short-lived
periods of parliamentary sover-
eignty, from 1973 to 1977 and 1997
to 1999.
A parliamentary form of govern-
ment should have parliamentary
sovereignty to function effectively.
But the 1956 Constitution, 1973
Constitution after the Eighth
Amendment, LFO (2002) and Sev-
enteenth Amendment (2003), lack
parliamentary character in a strict
technical sense. The executive's
domination of the system under-
mines independence and sover-
Constitution of Pakistan and Peoples’ Rights
eignty of the legislature. It denies
legislature the exclusive power to
elect and supervise a functioning
government as typically required in
a parliamentary system. It also
negates a competitive and fair
process of coming into power.
The problems relating to federal
structure in Pakistan are rather
“
complex and thorny. Here, two
issues are particularly noteworthy.
First, provincial governments and
legislatures have been formed and
controlled by the centre; and sec-
ond, distribution of legislative,
financial and administrative powers
The executive's domination
between the centre (federal) and the
provinces (federating units) have
of the system undermines independence
clearly been tilted in the favour of and sovereignty of the legislature. It
the centre.
denies legislature the exclusive power to
The independence and predictabil-
elect and supervise a functioning gov-
”
ity of the judiciary is imperative for
effective implementation of legal
regime of rights. Besides, the sys-
ernment as typically required in a par-
tem of appointment and accounta-
bility of judges is crucial in ensur-
liamentary system.
ing judicial independence. How-
ever, judicial outcome of several
significant petitions in Pakistan are
suggestive of the unpredictability of
the judiciary.
In four military takeovers over the
past 57 years, the judiciary justified
1958, 1977 and 1999 coups and
held the 1969 takeover as unlawful
and usurpatory. Of the country's
twelve legislative assemblies, nine
have so far been dissolved. While
all nine dissolution orders were
challenged before the superior judi-
ciary, it justified the dissolution of
4
six and declared three other orders
as being unconstitutional.
Constitution of Pakistan and Peoples’ Rights
Constitution and Rights
An Introductory Framework
“
What is Constitution?
In the broadest sense a constitution
is a body of rules governing the
affairs of an organized group.1 A
The most
constitution is a fundamental law
of a state, which provides a basic
important aspect of framework for legislation and pol-
icy formulation. It reflects the cul-
any constitution is tural values, aspirations, traditions
and historical outlook of the peo-
the provision and ple that it represents.
protection of rights. Why Constitutions?
Precisely for this
Every state has a constitution, at least
in the sense that it operates its impor-
reason the Bill of
tant institutions according to some
fundamental body of rules. In this
Rights in the British sense the only conceivable alterna-
tive to a constitution is the condition
and American of anarchy. Constitutions may be
written or unwritten, complex or
constitutions are simple, and may provide for vastly
different patterns of governance, but
considered a signifi- there is no concept of a state without
a constitution.
cant development in
”
Conceptual Basis of
constitutional Constitution
history. Basic concepts of a modern constitu-
tion were laid down in the classical
works on social contract, especially
those of English philosophers
Thomas Hobbes and John Locke in
the 17th century and French philoso-
pher Jean-Jacques Rousseau in the
5
18th century. The theorists of social
contract pleaded that the people
through their representatives are sup-
posed to choose their government
and mode of governance by means
of a social contract or constitution.2
The influence of the theories of
social contract, especially as they
relate to the issues of natural rights
and the proper functions of govern-
ment, pervades constitution mak-
ing in the United States, France,
and continental Europe.3
Constitution and Rights
The most important aspect of any
constitution is the provision and
protection of rights. Precisely for
this reason the Bill of Rights in the
British and American constitutions
is considered a significant develop-
ment in constitutional history. The
English Bill of Rights, declaring
rights and liberties of the subject
and ensuring supremacy of Parlia-
ment over the monarchy, was
passed in 1689. The American Bill
of Rights of 1791, consisting of the
first ten amendments to the U.S.
Constitution, confirms fundamen-
tal rights of the citizens.
Presently, there is increasing
emphasis on the integration of
human rights into national constitu-
tions and legal regimes. Incorpora-
tion of international human rights
norms into national laws and con-
stitutions is a key element in the
protection of rights. It makes them
enforceable in the courts and gives
people the legal communication
needed to take action when their
rights are violated.4
Typology of Rights
Rights are broadly classified into
two types: civil and political rights;
and economic, social and cultural
rights. Both categories are reflected
in the international legal instru-
ments on rights, i.e. International
Covenant on Civil and Political
Rights and International Covenant
on Economic, Social and Cultural
Rights.
Civil and political rights include:
„ Freedom of press, speech, and
assembly;
„ Right to vote and to petition to
the government;
„ Entitlement to due process of
law and other legal protec-
tions.
Economic, social and cultural
rights include:
„ Basic necessities for an ade-
quate standard of living,
including employment, nutri-
tion, shelter, health care, and
education.5
One can find key linkages between
the two types. Access to basic edu-
cation, health care, shelter and
employment is as critical to human
freedom as political and civil
rights. On the other hand, only with
political freedoms can people gen-
uinely take advantage of economic
freedoms.6
Rights, Democracy
and Development
There are considerable linkages
between rights on the one hand
and democracy and development
on the other. Democratic gover-
nance is an irreducible condition
Constitution of Pakistan and Peoples’ Rights
for attainment of rights. Like-
wise, authoritarianism is a nega-
tion and denial of rights. Democ-
racy is the only form of political
regime compatible with all five
categories of rights - political,
civil, economic, social and cul-
“
tural.7
The Nobel Laureate Amartya Sen
has emphasized the significance of
securing rights for development by
saying that development requires
the removal of major sources of
Access
"unfreedom". These are poverty as
well as tyranny; poor economic
to basic education,
opportunities as well as systematic health care, shelter
social deprivation and neglect of
public facilities as well as intoler- and employment is
ance or over-activity of repressive
states.8 as critical to human
freedom as political
”
Discussing key linkages between
different types of rights, Sen
observes that sometimes lack of
and civil
substantive freedoms relates
directly to economic poverty. It
rights.
robs people of the freedom to sat-
isfy hunger, or to achieve suffi-
cient nutrition, or to obtain reme-
dies for treatable illnesses, or the
opportunity to be adequately
clothed or sheltered. In other cases,
unfreedom links closely to the lack
of public facilities or social care. In
still other cases, the violation of
freedom results directly from a
denial of political and civil liber-
ties by authoritarian regimes and
from imposed restrictions on the
freedom to participate in the
social, political and economic life
of the community.9
6
Constitutional Design
and Rights
Constitutional design can greatly
influence the state of rights in a
Constitution of Pakistan and Peoples’ Rights
country. It can either facilitate or
impede implementation of rights.
There are guarantees in constitu-
tions with respect to protection of
rights. The nature of executive-leg-
islature relations, centre-province
relations and role of the judiciary,
as provided in a constitution, sig-
nificantly affect the state of rights
in a country.
An understanding of the constitu-
tional design in relation to protection
of rights makes certain aspects very
significant. These aspects could be:
1. Constitution must not be
subjected to frequent and
major changes.10 It leads to
political instability with con-
sequent implications for
“
implementation of rights.
In respect of ethnic and
cultural minorities, a reasonable self-
”
government, autonomy or participation of
these groups has to be ensured.
2. System of checks and bal-
ances based on the separation
of powers, with independent
judicial and legislative
branches.11 In many democra-
7 8
cies there is domination by the
executive branch resulting in
denial of political rights.
3. Effective civilian control
over the military and other
security forces.12 Heavy mil-
itary involvement in politics is
considered an important cause
of undermining civil and
political rights.13
4. Competitive political sys-
tem. The system should be
open to the rise and fall of
competitive parties and group-
ings. There should also be a
realistic possibility for the
opposition to increase its sup-
port or gain power through
elections.14
5. Functioning government.
Freely elected representatives
should determine the policies
of government.15
6. Rights of minorities. In
respect of ethnic and cultural
minorities, a reasonable self-
government, autonomy or par-
ticipation of these groups has
to be ensured. 16
7. Devolution of Power. Elec-
tions and other formal checks
enable citizens only to end the
tenure of politicians who
abuse their mandates. One
solution to such problems is
to decentralize power to lower
levels of government - bring-
ing it closer to the people.17
Constitutional Milestones
The British introduced modern
constitutional concepts, institu-
tions and procedures in the sub-
continent. Initially, it was the East
India Company that established
colonial rule from 1600 to 1858.
Following the war of independ-
ence in 1857, power was trans-
ferred from the Company to the
Crown. The British Government
formally assumed control over the
administration of India after a
proclamation issued by Queen
Victoria on November 1, 1858.
Representative
Institutions in British
India
The Indian Councils Act of 1861
provided for a rudimentary frame-
work for legislation and adminis-
tration in India. It was passed to
make better provisions for the
constituting of the Council of the
Governor General and for the
Local Government of the Presi-
dencies and Provinces of India.
The Indian Councils Act of 1892
was enacted in order to amend the
Indian Councils Act of 1861. The
Governor General's Council was
expanded. The Government of
India Acts of 1909 and 1919 fur-
ther strengthened the principle of
representation and expanded vot-
ing rights.
Government of India Act
of 1935
Most importantly, the Government
of India Act of 1935 made the
Constitution of Pakistan and Peoples’ Rights
provinces separate legal entities.
Hence the federal basis of British
India was accepted for the first
time. The executive power and
authority of the federation was
vested in the Governor General.
However, the jurisdiction of the
Franchise:
From Restricted to Universal
In 1884, the first restricted franchise elections were held for local
government institutions. They were in fact the first ever elections in
the subcontinent. The restricted franchise, as opposed to univer-
sal adult franchise, limits voting rights to only those who had the
required property, income or education. The Government of India
Acts of 1909, 1919 and 1935 expanded franchise by easing
property, income and literacy requirements. The first ever provin-
cial elections in Pakistan on the basis of universal adult franchise
were those of the Punjab Assembly in 1951 and the first ever
National Assembly elections on the same basis were held in
December 1970.
For further information, See Andrew R. Wilder, The Pakistani Voter: Electoral Poli-
tics and Voting Behaviour in the Punjab, Oxford University Press, 1999. pp. 15-21.
federal government was subject to
the limitation that the federal exec-
utive authority did not extend to
any province in matters except
those expressly provided in the
Act.18
A federal court was established
under the Act. It was to be a tribu-
nal for determination of disputes
between the units of the federa-
tion.19
Constitution of Pakistan and Peoples’ Rights
Independence Act of
1947
The Independence Act of 1947 was
enacted to give effect to the
Mountbatten Plan of June 3, 1947.
“
The Act provided for the partition
of British India and establishment
of two independent countries to be
known as India and Pakistan. The
legislatures of the two dominions
Democratic were made fully sovereign and
given the powers to make laws.
governance is an The Constituent Assemblies of
irreducible condition both the states were given the pow-
ers to frame their respective consti-
for attainment of tutions.
rights. Likewise, Interim Constitution of
1947
authoritarianism is The Interim Constitution of 1947
was framed with adaptations from
a negation
”
the Government of India Act,
1935. The Pakistan (Provisional
and denial of Constitutional) Order, 1947 estab-
rights. lished the federation of Pakistan
comprising: (1) the four Provinces
of East Bengal, West Punjab,
Sindh, and North West Frontier
Province, (2) Balochistan, (3) any
other areas that might with the
consent of the Federation be
included therein; (4) the capital of
the federation, Karachi; and (5)
such Indian (princely) states that
might accede to the federation.20
Objectives Resolution
The first significant development
in constitution making in Pakistan
was the passage of "Aims and
Objective of the Constitution",
popularly known as Objectives
Resolution. The Objectives Reso-
9
lution laid the foundations of the
constitution and provided the
broad outlines of its structure. The
passage of the Objectives Resolu-
tion on March 12, 1949 has been
termed as the most important occa-
sion in the life of Pakistan, next in
importance only to the achieve-
ment of independence.21
Liaqat Ali Khan, the first Prime
Minister of Pakistan, moved the
Objectives Resolution in the Con-
stituent Assembly on March 7,
1949. It was passed by majority
vote on March 12, 1949, although
all the minority members opposed
this Resolution.22
Constitution of 1956
The first ever constitution for the
country was passed by the second
Constituent Assembly in 1956.
Pakistan was declared an Islamic
Republic wherein the principles of
freedom, equality, tolerance and
social justice as enunciated by
Islam were to be fully observed.
The head of state, the President,
was to be a Muslim. Another basic
feature therein was the federal
form of constitution. The type of
government was decided to be par-
liamentary. The parliament was
unicameral consisting of the Presi-
dent and a single chamber, the
National Assembly. The Constitu-
tion of 1956 was abrogated two
years later with the imposition of
the first martial law in 1958.
Constitution of 1962:
Presidential System
General Ayub Khan promulgated
the second Constitution in 1962,
introducing a presidential form of
government. Although the system
under the British was by no means
an unqualified parliamentary gov-
ernment, some form of parliamen-
tary institutions had been working
in the subcontinent since 1919. But
the 1962 Constitution detracted
Constitution of Pakistan and Peoples’ Rights
Objectives Resolution
The text of the Objectives Resolution as passed by the first
Constituent Assembly of Pakistan on March 12, 1949:
In the name of Allah, the Beneficent, the Merciful:
Whereas sovereignty over the entire universe belongs thereafter be included in or accede to Pakistan shall
to God Almighty alone and the authority which He has
delegated to the State of Pakistan through its people for
form a Federation wherein the units will be
autonomous with such boundaries and limitations on
being exercised within the limits prescribed by Him is
a sacred trust;
their powers and authority as may be prescribed;
This Constituent Assembly representing the people of
Wherein people shall be guaranteed fundamental
rights including equality of status, of opportunity
Pakistan resolves to frame a constitution for the sover-
eign independent state of Pakistan;
before law, social, economic and political justice, and
freedom of thought, expression, belief, faith, worship
and association, subject to law and public morality;
Wherein the State shall exercise its powers and author-
ity through the chosen representatives of the people; Wherein adequate provision shall be made to safe-
guard the legitimate interests of minorities and back-
Wherein the principles of democracy, freedom, equal- ward and depressed classes;
ity, tolerance and social justice as enunciated by Islam
shall be fully observed; Wherein the independence of the judiciary shall be
Wherein the Muslims shall be enabled to order their
fully secured;
lives in the individual and collective spheres in accord Wherein the integrity of the territories of the Federa-
with the teachings and requirements of Islam as set out tion, its independence and all its rights including its
in the Holy Quran and the Sunnah; sovereign rights on land, sea and air shall be safe-
guarded;
Wherein adequate provisions shall be made for the
minorities freely to profess and practice their religions So that the people of Pakistan may prosper and attain
and develop their cultures; their rightful and honoured place amongst the nations
of the World and make their full contribution towards
Whereby the territories now included in or in associa- international peace and progress and happiness of
tion with Pakistan and such other territories as may humanity.
from that tradition. General Yahya history, which has survived 31
Khan abrogated the second Consti- years and two military interven-
tution with the imposition of sec- tions. The Constitution provides
ond martial law in 1969. for parliamentary sovereignty and
10
a federal form of government. For
Constitution of 1973 the first time in constitutional his-
The third Constitution was passed tory it provides in Article 6 that
by the legislature in 1973. It is an any person who abrogates or sub-
important document of Pakistan's verts the Constitution by use of
Constitution of Pakistan and Peoples’ Rights Constitution of Pakistan and Peoples’ Rights

Minister provided in the original Seventeenth Constitu-

Constitution. tional Amendment A constitutional
Revival of Constitutional Order (RCO), 1985 The Seventeenth Amendment was amendment Bill
(The Constitution of Pakistan was comprehensively amended through a President's Legal Framework Order approved by the parliament and becomes an Act of
The President issued the Legal became a part of the Constitution on Parliament and
Order, known as the Revival of Constitutional Order (RCO), on March 2, 1985.) Framework Order (LFO) on December 31, 2003. The Amend-
instituted in the consti-
August 21, 2002, which brought ment does not bring provisions of
tution when passed by
X Article 2 A was inserted, making the Objec- X The number of general constituencies (for about sweeping changes in the LFO before the parliament for vali-
both houses of the
tives Resolution a substantive part of the Consti- Muslims) of the National Assembly was raised Constitution of 1973. The LFO is dation. Instead, it validates all Orders
tution. The Resolution, with some modifications, from 200 to 207. Besides, ten seats were reserved again a return to the position of the and Ordinances including the LFO Parliament with two
had already been adopted as a preamble to the for minorities. The minority seats in Provincial Eighth Amendment. It strongly through the insertion of Article third majority of total
Constitutions of 1956, 1962 and 1973. Now the Assemblies were increased. impinges on the parliamentary sov- 270AA in the Constitution. membership and
resolution was reproduced as an Annex and made assented to by the
ereignty and the federal structure of
an operative part of the Constitution. X The seats reserved for women in the National Pakistan. President.
Assembly were increased from ten to twenty.
X The Electoral College for election to the office (See Appendix A)
of the President was modified so as to comprise X The number of seats in the Senate was raised
both Houses of Parliament and all four Provincial from 63 to 87, with five seats from each province
Assemblies. (With equal weightage given in reserved for technocrats, ulema, or professionals.
terms of votes to each Provincial Assembly).
X One of the striking changes brought about by
X The President was empowered to dissolve the the RCO was a large number of additions to the
National Assembly at his discretion where, in his qualifications and disqualifications for member-
opinion, an appeal to the electorate was necessary. ship to the Parliament. What is the Eighth Amendment
„ The President was required to act on the advice of Prime Minister
X The time-period for the President to give
X A separate electorate for minorities was given assent or Cabinet. The President could, however, require the Prime Minis-
constitutional recognition for the first time in Pak- to the Bills passed by the Parliament was
ter or Cabinet to reconsider such advice.
istan. General Zia had earlier introduced separate increased from seven to forty-five days. The Pres-
electorate for minorities in 1979 by amending the ident could return a Bill (other than a Money Bill) „ The President was given the power to dissolve the National Assem-
Representation of the People Act, 1976. However, within forty-five days for reconsideration. This bly at his/her discretion provided that, in his/her opinion, the gov-
previously, under the Fourth Amendment, elec- gave the President the power to veto a Bill, but ernment could not be carried on in accordance with the provisions of
tions for the minority seats were held in the this could be overridden by passing the same Bill the Constitution and an appeal to the electorate became necessary.
National Assembly itself, based on proportional again by a majority of the members, present and
voting, of both Houses of Parliament in a Joint „ The Governor could also dissolve the Provincial Assembly at
representation with a single transferable vote.
Sitting. his/her discretion, subject to the prior approval of the President.
„ The President was given the powers to appoint, at his/her discretion,
Chiefs of Armed Forces and the Chief Election Commissioner. The
President was also empowered to appoint Governors of the
force, or show of force, or by other The First Constitutional Amend-
provinces, however, in consultation with the Prime Minister.
unconstitutional means, shall be ment was meant to curtail political
guilty of high treason.23 rights by amending Article 17 of „ The power of the President to appoint the Prime Minister was lim-
the Constitution. The Third, Fourth ited to a period of five years, until March 20, 1990. After this date
A total of fourteen amendments, and Fifth Amendments restrict the President was required to invite that member of the National
out of the seventeen moved in the fundamental rights and powers of Assembly who commanded the confidence of the majority of mem-
bers.
legislature, have been instituted in the judiciary. The Revival of Con-
the Constitution, over the last 31 stitutional Order (RCO) of 1985 „ The period of giving assent by the President to Bills passed by Par-
years. The amendments reverse and the Eighth Amendment tipped liament was reduced from forty-five to thirty days.

11
some of the main features of the
original Constitution. Moreover,
these amendments restrict funda-
mental rights and rights of the
provinces.
12
the balance of power from Prime „ Article 270 A provided indemnity to all laws, acts, and orders of
Minister to President and diluted martial law regime including Revival of Constitutional Order, 1985.
the Constitution's parliamentary
form. The Thirteenth Amendment
restored the position of Prime
Constitution of Pakistan and Peoples’ Rights
and the final report in 1954.29
On the basis of this report, a wide
Rights in the Constitution variety of rights of citizens were
Constitution of Pakistan and Peoples’ Rights
ment, if the Federal Government
declared that any political party had State Employees
been formed or was operating in a
in Politics
manner prejudicial to the sover-

“
The first
ever Constitutional
Committee, set up in
the inaugural session
of the Constituent
Assembly of
Pakistan on August
12, 1947 was on
"Fundamental Rights
of the Citizens of
Pakistan" and
What is a Right?
In its legal sense a right is an interest,
which is created and enforced either
by the constitution or by ordinary
law. In the former sense, it is a con-
stitutional right, which can only be
taken away by an amendment of the
constitution; in the latter, it is an
ordinary right, which may be
enlarged, abridged or destroyed by
ordinary law.24
What are Fundamental
Rights?
Fundamental rights are a compre-
hensive concept of rights, which
include a wide range of political and
civil rights. The essential character-
istic of fundamental rights is that
they impose limitations, expressed
aggrieved party. This obligation is
the very essence of what is called the
judicial review of legislation.27
According to Article 184 (3) of the
Constitution, the Supreme Court has
jurisdiction to take notice with refer-
ence to enforcement of any of the
fundamental rights. Likewise, Arti-
cle 199 empowers the High Courts
to order any person or authority,
including the Government, for the
enforcement of fundamental rights.
Fundamental Rights and
Constitution Making
The English notion of natural rights
was taken by the settlers to the
American continent. It was given a
included in the Constitution of 1956
as fundamental rights. The Constitu-
tion declared that all laws inconsis-
tent with or in derogation of the fun-
damental rights would be void.
These rights were made enforceable
by the Supreme Court. The High
Courts were also empowered to issue
such writs for enforcement of funda-
mental rights. 30
The Constitution of 1962 originally
omitted fundamental rights. It was
later amended to include a chapter on
fundamental rights through the Con-
stitutional First Amendment Act,
1963. Fundamental rights included in
the 1962 Constitution were the same
and similarly worded as those in the
1956 Constitution and made enforce-
able by the High Courts. However,
no writ jurisdiction was conferred on
the Supreme Court for enforcement
of these rights.31
eignty and integrity of Pakistan, it
The constitutional ban on state
would refer the matter within fifteen
employees to form a political
days of such declaration to the
party or become its members
Supreme Court.
seems to be rather rare. The exist-
The Third, Fourth and Fifth Consti-
ing constitutions of Australia,
Bangladesh, Canada, China,
tutional Amendments limit funda-
mental rights and the powers of the
France, Germany, Ireland, Italy,
Japan, Nepal, Russian Federation,
judiciary. The LFO 2002 further
amends Article 17 on fundamental
Singapore, South Africa, Sri
Lanka, Swiss Federation and the
rights, and lays down that no politi-
cal party shall promote sectarian,
United States of America have no
provision mentioning such
ethnic, regional hatred or animosity,
be titled or constituted as a militant
restriction on state employees.
Notably, the Constitutions of
group or section, and that every
political party shall hold intra-party
1956, 1962 and the original 1973
elections. Hence, Article 17, which
Constitution of Pakistan do not
mention such a ban.
theoretically guarantees political
rights, is the most amended provi-
There are, however, varied statu-
sion on fundamental rights.
tory and regulatory regimes in
different countries prescribing
Part II of the Constitution has two
chapters: Fundamental Rights and
different kinds of limitations on
state employees regarding their
Principles of Policy. A close study

”
or implied, on public authorities -
"Matters relating to legislature, executive and judiciary,
prohibiting them from interference
Minorities". in the exercising of these rights.25
Enforcement of
Fundamental Rights
Fundamental rights are meant to be
enforced by a court of law, and are
stated in the Constitution not merely
as an expression of recognition of
rights. It has been observed in a case
brought before the Supreme Court
that for a right to be fundamental it
must be enforceable by judicial or
some other process.26 Any action
precise legal form in the Constitu-
tion of the United States. When
India, Pakistan and Burma became
independent and framed their
own constitutions, these rights
received special attention in their
scope and formulation.28
The first ever Constitutional Com-
mittee, set up in the inaugural ses-
sion of the Constituent Assembly of
Pakistan on August 12, 1947 was on
"Fundamental Rights of the Citizens
of Pakistan" and "Matters relating to
Minorities". It is indicative of the
importance the founders of Pakistan
Constitution of 1973
Fundamental rights provided in the
Constitution of 1973 were similarly
worded as those in the previous Con-
stitutions.32 These were made
enforceable through the Supreme
Court and the High Courts. How-
ever, amendments in the Constitu-
tion of 1973 had implications for
fundamental rights.
The First Amendment was meant to
curtail political rights by amending
Article 17 of the Constitution. It pro-
vided that a state employee could
role in politics. For instance, in
of the two reveals that the chapter on
the United Kingdom, civil ser-
Fundamental Rights contains, by
and large, political and civil rights,
vants are barred from standing for
and the chapter on Principles of Pol-
political offices; neither can they
take an active part in party poli-
icy provides for economic, social
tics. Conversely, in the United
and cultural rights. The difference is
States it is somewhat flexible for
significant. While fundamental
public employees to take part in
rights are enforceable by the supe-
politics with various sets of provi-
rior judiciary, the principles of policy
sions for federal, state and local
need to be strictly followed by each
governments.
organ of the state, but are not
enforceable by courts.
Thus constitutional provisions relat-
ing to rights can be categorized into
three types, i.e. general provisions

13
taken by the legislature or the execu-
tive in violation of a fundamental
right is void in law and the courts are
bound to make a declaration accord-
ingly and to give suitable relief to the
attached to fundamental rights,
including the rights of minorities, in
the Constitution. The interim report
of the Committee was adopted by
the Constituent Assembly in 1950
neither form a political party nor
become its member. Further qualify-
ing the restrictions, the words "sov-
ereignty" and "integrity" were
added. According to the Amend-
14
on rights, fundamental rights, which
are enforced by courts, and princi-
ples of policy, which are imple-
mentable but non-justiciable rights
(not enforceable by courts).
Constitution of Pakistan and Peoples’ Rights
General Provisions
“
on Rights
Articles 4 and 8 of the Constitution
envisage two general but very
important premises of the legal
The regime that governs fundamental
Constitution of rights in Pakistan. Article 4 provides
for the inalienable right of every cit-
1962 originally izen to legal protection and legal
treatment. It reinforces the concept
omitted fundamental of the sanctity of human life, liberty,
reputation and property. Article 8
rights. It was later provides for another basic premise
of the supremacy of fundamental
amended to include a rights, stating that any law, which is
repugnant to fundamental rights,
chapter on funda- would be void.
mental rights Right of individuals to be
dealt with in accordance
through the Consti- with law (Article: 4)
X To enjoy the protection of law and
tutional First
”
to be treated in accordance with law
Amendment Act, is the inalienable right (i.e. a right
that can never be taken away) of
1963. every citizen, wherever he (or she)
may be, and of every other person for
the time being within Pakistan.
In particular:
X No action detrimental to the life,
liberty, body, reputation or property
of any person shall be taken except
in accordance with law;
X No person shall be prevented
from or be hindered in doing that
which is not prohibited by law; and
X No person shall be compelled to
do that which the law does not
require him (or her) to do.
Supremacy of fundamental
rights: laws inconsistent with
or in derogation of funda-
mental rights to be void
15
(Article: 8)
X Any law, or any custom or usage
having the force of law, if it is incon-
sistent with the rights conferred by
the chapter on fundamental rights
would be void.
X The state shall not make any law
which takes away or abridges the
rights and any law made in contra-
vention of this clause shall be void.
X The rights conferred by the chap-
ter on fundamental rights shall not
be suspended except as expressly
provided by the Constitution.
Exceptions:
J The provisions of this Article
shall not apply to any law relating
to members of the armed forces,
police or of such other forces as are
charged with the maintenance of
public order.
Fundamental Rights
(Justiciable Political and
Civil Rights)
Chapter one of Part II of the Consti-
tution provides for fundamental
rights, which are enforceable by
court of law. These rights are mainly
political and civil rights.
1. Security of person
(Article: 9)
X No person shall be deprived of
life or liberty except in accordance
with law.
2. Safeguards against
arrest and detention
(Article: 10)
X No person who is arrested shall
be detained in custody without being
informed of the grounds for such
arrest. He (or she) shall not be
denied the right to consult and be
defended by a legal practitioner of
his/her choice.
X Every person who is arrested and
“
No person
shall be deprived
of life or liberty
”
except in accordance
with law.
detained in custody shall be pro-
duced before a magistrate within a
period of twenty-four hours of such
arrest.
X No such person shall be detained
in custody beyond the said period
without the authority of a magistrate.
3. Prohibition of slavery,
forced labour and child
labour (Article: 11)
X Slavery is non-existent and for-
bidden and no law shall permit or
facilitate its introduction into Pak-
istan in any form.
X All forms of forced labour and
traffic in human beings are prohib-
ited.
X No child below the age of four-
teen years shall be engaged in any
factory or mine or any other haz-
ardous employment.
Exceptions:
J Compulsory service for prison-
ers or any service for public pur-
pose, but it should not be cruel or
incompatible with human dignity.
Constitution of Pakistan and Peoples’ Rights
4. Protection against
retrospective punishment
(Article: 12)
No law shall authorize the punish-
ment of a person:
X for an act that was not punishable
by law at the time of its occurrence;
or
X for an offence by a penalty
greater than the penalty prescribed
by law for that offence at the time of
its occurrence.
“
5. Protection against
double punishment and
self-incrimination
(Article: 13)
The dignity
No person shall be:
X prosecuted or punished for the
of man and the
same offence more than once; or
privacy of home
X compelled to be a witness against
himself, when accused of an offence. shall not be violable.
No person shall be
6. Dignity of man, privacy
of home and prohibition of subjected to torture
torture for getting evidence
for the purpose of
”
(Article: 14)
X The dignity of man and the pri-
vacy of home shall not be violable.
extracting
X No person shall be subjected to evidence.
torture for the purpose of extracting
evidence.
7. Freedom of movement
(Article: 15)
X Every citizen is free to move, live
and settle in any part of the country.
Qualification:
16
J Subject to any reasonable
restriction imposed by law in the
public interest.
Constitution of Pakistan and Peoples’ Rights
8. Freedom of assembly
(Article: 16)
X Every citizen shall have the right
to assemble peacefully without
arms.
Qualifications:
J Subject to any reasonable
restrictions imposed by law in the
interest of public order.
“
Every citizen shall have the
right to profess, practice and propagate his
(or her) religion and every religious
denomination and every sect shall have the
”
right to establish, maintain and manage its
religious institutions.
9. Freedom of association
(Article: 17)
X Every citizen shall have the right
to form associations or unions.
Exceptions and Qualifications:
J A state employee can neither
form a party nor become member
of any political party.
J Reasonable restrictions imposed
by law in the interest of sovereignty
or integrity of Pakistan, public order
or morality.
J No political party shall promote
sectarian, ethnic or regional hatred.
17
J Every political party shall
account for the source of its funds.
J Every political party shall hold
intra-party elections to elect its
office bearers.
10. Freedom of trade,
business or profession
(Article: 18)
X Every citizen shall have the right
to enter upon any lawful profession
or occupation, and to conduct any
lawful trade or business.
Qualifications:
J Subject to such qualifications as
may be prescribed by law.
11. Freedom of speech
(Article: 19)
X Every citizen shall have the right
to freedom of speech and expres-
sion, and there shall be freedom
of the press.
Qualifications:
J Subject to any reasonable restric-
tions imposed by law in the interest
of the glory of Islam or the integrity,
security or defense of Pakistan,
friendly relations with foreign states,
public order, decency or morality, or
in relation to contempt of court, or
incitement to an offence.
12. Freedom to profess
religion and to manage
religious institutions
(Article: 20)
X Every citizen shall have the right
to profess, practice and propagate his
(or her) religion and every religious
denomination and every sect shall
have the right to establish, maintain
and manage its religious institutions.
Qualifications:
J Subject to law, public order and
morality.
13. Safeguard against
taxation for purposes of
any particular religion
(Article: 21)
X No person shall be compelled to
pay any special tax to be spent on the
propagation or maintenance of any
religion other than his own.
14. Safeguards as to
educational institutions
in respect of religion
(Article: 22)
X No person attending any educa-
tional institution shall be required to
receive religious instruction, or take
part in any religious ceremony, or
attend religious worship, if such
instruction, ceremony or worship
relates to a religion other than his (or
her) own.
X No discrimination against any
community in grant of tax exemp-
tions or concessions for religious
institutions.
X No religious community can be
prevented from providing religious
education to pupils of its community.
X No discrimination in admission to
educational institutions receiving
public funds on grounds of race, reli-
gion, caste or place of birth.
15. Property rights
(Article: 23)
X Every citizen shall have the right
to acquire, hold and dispose of prop-
erty in any part of Pakistan.
Qualifications:
J Subject to the Constitution and
any reasonable restrictions imposed
by the law in public interest.
Constitution of Pakistan and Peoples’ Rights
16. Protection of property
rights (Article: 24)
X No person shall be deprived of his
(or her) property save in accordance
with law.
“
X If a property is needed in public
interest then the government has to
give reasonable compensation to the
owner.
17. Equality of citizens No
and prohibition of gender
discrimination (Article: 25) discrimination in
X All citizens are equal before the admission to
law and are entitled to equal protec-
tion of law. educational
X There shall be no discrimination
on the basis of sex alone. institutions
18. Non-discrimination in receiving public
respect of access to public funds on grounds
places (Article: 26)
of race, religion,
”
X In respect of access to places of
public entertainment, not intended
for religious purposes, no discrimi-
caste or place of
nation against any citizen on the
ground only of race, religion, caste,
birth.
sex, residence or place of birth shall
be made.
19. Safeguard against
discrimination in services
(Article: 27)
`
X No citizen otherwise qualified for
appointment in the service of Pak-
istan shall be discriminated against
in respect of any such appointment
on the ground of race, religion, caste,
sex, residence or place of birth.
Exceptions:
J Quota system on the basis of
18
province/region for forty years to
secure adequate representation of
backward regions/groups in the
service of Pakistan.
Constitution of Pakistan and Peoples’ Rights
“
Constitu-
tion provides that it
is the responsibility
of each organ and
authority of the
state, and of each
person performing
functions on behalf
of an organ or an
authority, to act in
accordance with
those Principles of
Policy in so far as
they relate to the
functions of the
”
organ or authority.
19
J Specific services can be
reserved for members of either sex
if such services require duties
which can not be adequately per-
formed by the members of other
sex.
20. Preservation of
language, script and
culture (Article: 28)
X Any section of citizens having a
distinct language, script or culture
shall have the right to preserve and
promote the same and establish insti-
tutions for that purpose.
Principles of Policy
(Non-Justiciable Economic,
Social and Cultural Rights)
Chapter two of Part II of the Consti-
tution provides for the Principles of
Policy. These principles address
mainly economic, social and cultural
rights. These rights cannot be
enforced by any court of law, unlike
fundamental rights. However, the
Constitution provides that it is the
responsibility of each organ and
authority of the state, and of each per-
son performing functions on behalf
of an organ or an authority, to act in
accordance with those Principles of
Policy in so far as they relate to the
functions of the organ or authority.
Hence, these rights are imple-
mentable though not justiciable.
Article 29 (3) provides that the
President and Governors of all
provinces shall annually prepare
and lay before the National Assem-
bly and Provincial Assemblies a
report on the observance and
implementation of Principles of
Policy. It further says that provi-
sion shall also be made in the
Rules of Procedure of National
Assembly and Provincial Assem-
bly for discussion on such report.
In compliance with the Constitu-
tion, provisions have been made in
the Rules of Procedure (ROP) of
the National Assembly and four
Provincial Assemblies, providing
for the constitutional requirement
of an annual report by the Presi-
dent and Governors of the
provinces and discussion there-
upon.
Rule 159 of the National Assembly
provides that a minister shall lay
the report on the observance and
implementation of the Principles
of Policy in relation to the affairs
of the Federation. Rule 161 pro-
vides that after a report is laid on
the table, the Speaker shall fix a
day for its discussion. The rule fur-
ther states that on the day fixed the
minister concerned may move that
the report be discussed by the
Assembly and may make a brief
statement explaining the salient
features of the report. The Assem-
bly may by resolution express its
opinion or makes any observation
or recommendation on the report.
Similarly, Rules of Procedures of
all provincial assemblies have pro-
visions fulfilling this constitutional
requirement.
President and Governors of
all provinces shall annually
prepare and lay before the
National Assembly and
Provincial Assemblies a
report on the observance and
implementation of Principles
of Policy
As regards practicing of these rules,
the available data shows that only 9
reports have so far been submitted to
the National Assembly on obser-
vance and implementation of the
Principles of Policy, even though the
Assembly has remained functional
for 22 years since the promulgation
of the Constitution of 1973. There
has been no discussion on these
reports as provided under the rules,
and consequently the absence of
observations or recommendations
that would have otherwise been for-
mulated.
The Principles of Policy as provided
in the constitution are reproduced
herein:
1. Islamic way of life
(Article: 31)
X Steps shall be taken to enable the
Muslims, individually and collec-
tively, to order their lives in accor-
dance with the fundamental princi-
ples and basic concepts of Islam and
to provide facilities whereby they
may be enabled to understand the
meaning of life according to the
Holy Quran and Sunnah.
2 . Promotion of local
government (Article: 32)
X The State shall encourage local
Government institutions composed
of elected representatives of the areas
concerned and in such institutions
special representation will be given
to peasants, workers and women.
3 . Parochialism to be
discouraged (Article: 33)
X The State shall discourage
parochial, racial, tribal, sectarian and
provincial prejudices among the citi-
zens.
Constitution of Pakistan and Peoples’ Rights
4 . Participation of women
(Article: 34)
“
X Steps shall be taken to ensure full
participation of women in all spheres
of national life.
5. Protection of family
The State
(Article: 35)
shall discourage
X The State shall protect the marriage,
the family, the mother and the child.
parochial, racial,
6 . Protection of minorities tribal, sectarian
(Article: 36)
and provincial
”
X The State shall safeguard the
legitimate rights and interests of
prejudices among
minorities, including their due repre-
sentation in the federal and provin-
the citizens.
cial services.
7. Promotion of social
justice and eradication of
social evils (Article: 37)
The State shall:
X Promote, with special care, the
educational and economic interests
of backward classes or areas.
X Remove illiteracy and provide
free and compulsory secondary edu-
cation within minimum possible
period.
X Make technical and professional
education generally available and
higher education equally accessible
to all on the basis of merit.
X Ensure inexpensive and speedy
justice.
X Make provision for securing just
and humane conditions of work,
ensuring that children and women
are not employed in vocations
20
unsuited to their age or sex, and for
maternity benefits for women in
employment.
X Enable the people of different
Constitution of Pakistan and Peoples’ Rights
areas, through education, training,
agricultural and industrial develop-
ment and other methods, to partici-
“
pate fully in all forms of national
activities, including employment in
The State shall secure the
well-being of the people, irrespective of sex,
caste, creed or race, by raising their
standard of living, by preventing the
concentration of wealth and means of
production and distribution in the hands of
a few to the detriment of general interest
and by ensuring equitable adjustment of
”
rights between employers and employees,
and landlords and tenants
the service of Pakistan.
X Prevent prostitution, gambling
and taking of injurious drugs, print-
ing, publication, circulation and dis-
play of obscene literature and adver-
tisement.
X Prevent the consumption of alco-
holic liquor otherwise than for
medicinal and, in the case of non-
Muslims, religious purposes.
X Decentralize Government
administration so as to facilitate
expeditious disposal of its business
to meet the convenience and
21
requirements of the public.
8. Promotion of social
and economic well-being
(Article: 38)
The State shall:
X Secure the well-being of the peo-
ple, irrespective of sex, caste, creed
or race, by raising their standard of
living, by preventing the concentra-
tion of wealth and means of produc-
tion and distribution in the hands of
a few to the detriment of general
interest and by ensuring equitable
adjustment of rights between
employers and employees, and land-
lords and tenants;
X Provide for all citizens, within the
available resources of the country,
facilities for work and adequate
livelihood with reasonable rest and
leisure;
X Provide for all persons employed
in the service of Pakistan or other-
wise, social security by compulsory
social insurance or other means;
X Provide basic necessities of life,
such as food, clothing, housing, edu-
cation and medical relief, for all
such citizens, irrespective of sex,
caste, creed or race, as are perma-
nently or temporarily unable to earn
their livelihood on account of infir-
mity, sickness or unemployment;
X Reduce disparity in the income
and earnings of individuals, includ-
ing persons in the various classes of
the service of Pakistan; and
X Eliminate riba (i.e. usury or inter-
est) as early as possible.
9. Participation in armed
forces (Article: 39)
X The State shall enable people
from all parts of Pakistan to partici-
pate in the armed forces of Pakistan.
Executive-Legislature
Relations
One of the functions of the consti-
tution is to elaborately define the
relationship between the three
organs of the state, i.e. executive,
legislature and judiciary. A demo-
cratic constitution irrespective of
the form of government envisages
complete independence of the judi-
ciary. However, the exact nature of
the relationship between executive
and legislature varies in different
political systems. The presidential
form of government provides for
absolute separation of the execu-
tive and legislature, whereas the
relationship between the two in
parliamentary system has varied
forms, not envisaging the same
degree of separation as in the pres-
idential form. In Pakistan's consti-
tutional experience the parliamen-
tary system remained the norm
with the exception of 1962-69
when presidential form of govern-
ment was in force.
Constitution of Pakistan and Peoples’ Rights
“
What is Parliamentary
System?
Parliamentary systems are based on
The
the premise that the parliament is
sovereign. A parliamentary system
presidential form of
makes a distinction between head
of the state or president, who repre-
government provides
sents the nation symbolically as a for absolute separa-
figurehead, and chief executive or
prime minister, who actually gov- tion of the executive
erns. The head of state is generally
not a popularly elected figure and and legislature,
has no power to govern.33
whereas the relation-
In parliamentary systems prime
minister can stay in office as along
ship between the two
as his or her party, or the coalition
supporting the government, has a
in parliamentary
majority in the parliament.34 The system has varied
legislators can dismiss a prime
minister through a vote of no con- forms, not envisaging
fidence. The only common denom-
inator of all systems considered as the same degree of
being parliamentary is that the
separation as in the
”
government must be appointed,
supported, and as the case may be,
dismissed by a parliamentary vote.
presidential
The government is only account-
able to the legislature.
form.
22
Constitution of Pakistan and Peoples’ Rights
“
Parliamentary and Presidential
Systems of Government
Japan, XParliamentarism and presidentialism are the two dominant
Spain, the United forms of democratic systems of government.
XIn presidential system the head of government (called the
Kingdom, the president) and the legislature are elected for terms of office
prescribed by the constitution. Except under exceptional cir-
countries of Scandi- cumstances the legislature cannot force the president to
resign, although it can remove him or her by the highly
navia, and the unusual process of impeachment.
Benelux XIn most presidential systems the president cannot dissolve the
legislature. In parliamentary systems, on the contrary, the
countries are parlia- head of government (who may be called prime minister, pre-
mier, chancellor, president of the government or - in Ireland-
mentary monarchies. --taoiseach) can be dismissed from office by a vote of no con-
Among the parlia- fidence in the legislature. Normally, the prime minister can
also dissolve the legislature and call for new elections.
mentary republics XPresidentialism is based on a stricter separation of powers,
whereas parliamentarism, although distinguishing between
are Hungary, Italy, the powers of the executive and legislature, is based on coop-
the Czech Republic eration between the two branches of government.
XA basic characteristic of presidentialism is that the president
and the Federal
”
is popularly elected, either directly or through an electoral
college, which is elected for that sole purpose. In parliamen-
Republic of Ger- tary systems the people elect only their own representatives -
many. the members of parliament - who in turn select the head of the
government.
XIn parliamentary systems there is a distinction between the
head of state, who represents the nation symbolically, and the
chief executive, or prime minister, who governs. The head of
state, who can be a monarch or a president of the republic, is
generally not popularly elected and has no power to govern,
although he or she exercises some influence, offers advice,
and often acts as a moderator by working with political lead-
ers to craft an agreement or, occasionally, trying to influence
public opinion.
XJapan, Spain, the United Kingdom, the countries of Scandi-
23
navia, and the Benelux countries are parliamentary monar-
chies. Among the parliamentary republics are Hungary, Italy,
the Czech Republic and the Federal Republic of Germany.
Constitution of Pakistan and Peoples’ Rights
Terms of Office: Presidents
and Prime Ministers
XIn many presidential systems, presidents cannot be re-elected
at all, or they cannot be re-elected for more than a certain
number of terms or without a period of time elapsing after the
“
end of the first term. In parliamentary systems the prime min-
ister can stay in office as long as his or her party, or the coali-
tion supporting the government, has a majority in the parlia-
ment.
XIn parliamentary systems the legislators can dismiss the
The
prime minister through a vote of no confidence. The disad-
vantage, however, is that the parliament can be too powerful cabinet, which helps
and replace prime ministers too often. In multiparty systems
or cases with little party discipline, coalitions of parties can the president or
realign themselves continuously, causing many changes in
leadership in a short time. prime minister
XSome modern constitutions, like those of Germany and govern, is much
Spain, have introduced mechanisms to ensure government
stability. In Germany, for example, electoral laws establish a more independent in
threshold of representation to keep small, often extremist par-
ties out of the parliament. Or the parliament may be allowed a parliamentary
to vote no confidence only by electing a successor to the cur-
system than in a
rent prime minister.
presidential system.
The Executive Branch:
In a parliamentary
Vice President and Cabinet
XMany presidential systems have a vice president. Some-times system the prime
the vice president and the president are elected separately. If
minister is merely
”
they are elected separately, they may be of different parties
and the vice president may try to undermine the president.
Normally, however, they are elected on the same ticket, with one among
the president playing a large role in choosing a vice presi-
dential running mate. This practice may result in a vice pres-
equals.
ident who would not have been chosen on the basis of quali-
fications.
XThe cabinet, which helps the president or prime minister gov-
ern, is much more independent in a parliamentary system than
24
in a presidential system. In a parliamentary system the prime
minister is merely one among equals. Many cabinet members
will serve under more than one prime minister, since they are
Constitution of Pakistan and Peoples’ Rights Constitution of Pakistan and Peoples’ Rights

“
likely to be important leaders in their party and members of Two Types of Democratic Governance

parliament with experience in preparing legislation.
XIn a presidential system, on the other hand, the president usu-
Unsuccessful ally has considerable freedom to appoint members of the cab-
inet. This means that few cabinet members will have served
candidates for the another president.
Choosing a President or Prime Minister
presidency may leave XIn presidential systems, many voters focus on the personali-
politics, and their ties of the presidential candidates more than on their parties
and programs. It is possible for someone who has never held
parties may be left any elective office, or only a local office, to win a substantial
number of votes for president (like Ross Perot in the United
largely leaderless. States in 1992 and Stanislaw Tyminski in Poland in 1990). If
In parliamentary such a candidate is elected (as was Alberto Fujimori in Peru
in 1990), he or she is likely to come into office without the
systems, however, support of any party in the legislature and may be unable to
govern effectively.
defeated candidates XIn parliamentary systems, on the other hand, a politician who
become the leaders wants to become prime minister must build support within a
“
XIn a parliamentary system, only the parliament has demo-
cratic legitimacy, and it supports the prime minister or with-
draws that support by a vote of no confidence. In a presiden-
tial system the president and the legislature both have demo-
cratic legitimacy, and it is not possible to say which more In
accurately represents the will of the people. If they conflict,
the only solution is to turn to the judicial power - the consti- parliamentary
tutional or supreme court.
systems, party
XIn Latin America, where the judicial power does not always
enjoy high prestige, such conflicts have often been resolved discipline is
by the armed forces. The armed forces sometimes support the
president and close the legislature, sometimes dismiss both enforced to support
the president and the legislature and install an interim gov-
ernment, or sometimes assume dictatorial power for a long governments, thus
period of time.
weakening the
XThe separation of powers in the United States is designed to
weaken the power of presidents. If a president has only "representative"
minority support in legislature, his or her power to implement
function and causing

”
party or coalition of parties, which will share the responsibil-
of the ity of governing.
XUnsuccessful candidates for the presidency may leave poli-
opposition. tics, and their parties may be left largely leaderless. In parlia-
mentary systems, however, defeated candidates become the
leaders of the opposition.
XAn elected prime minister knows he or she has the support
only of those who voted for the governing party or coalition
of parties and of the members of parliament who supported
his or her candidacy. An elected president, by contrast, repre-
sents all the people, even if he or she may not have obtained
policies can be severely limited. This inability to implement
policies can be an important source of frustration among vot-
ers and a cause of political instability. voters to feel ignored.
XOn the other hand, the greater independence of legislature This problem may
means that many special or regional interests are better rep-
resented than in a parliamentary system, since members of be magnified in cases
legislature can vote against their party and president to win
favor with constituents. In parliamentary systems, party dis- where no party has
cipline is enforced to support governments, thus weakening
the "representative" function and causing voters to feel a majority and the
ignored. This problem may be magnified in cases where no
government relies

”
party has a majority and the government relies on a coalition
a majority of the votes cast. Bolivia is an exception here.
When no presidential candidate receives an absolute majority
of parties.35
on a coalition of
of the popular vote, the legislature decides between the two
front-runners. parties.
History of Executive-Leg- ers and special responsibilities.
islature Relations These discretionary powers lapsed
In the Government of India Act of from August 15, 1947 as amended
1935, the executive power and in the Interim Constitution of 1947.

25
authority of the federation was
vested in the Governor General. The
Governor General, under the Act,
was given many discretionary pow-
26
The Governor General was pre-
sumed to act on the advice of his
ministers and all government activ-
ity was brought under the control of
Constitution of Pakistan and Peoples’ Rights
“
the Cabinet, which was responsible
to the Constituent Assembly.36
Despite this provision, the first Con-
stituent Assembly was dissolved by
the Governor General in 1954.
In the Con- The Constitution of 1956 envisaged
stitution of 1973 the a parliamentary form of government
wherein the executive authority was
President, subject to vested in the President. The Consti-
tution provided for a Cabinet of
the advice of the Ministers with Prime Minister as its
Prime Minister, was head 'to aid and advise' the President
in the exercise of his functions. The
entrusted with some Cabinet was collectively responsi-
ble to the National Assembly. It was
key appointments also provided that Prime Minister
shall hold office during the pleasure
such as those of of the President.37
Chief Justices and The Constitution of 1962 was an
experiment in presidential system
Judges of the wherein the President was to be
Supreme Court and elected independently of the legisla-
ture. He/She had direct mandate
High Courts, Gover- from the electors to perform execu-
tive functions of the government.
nors of the provinces, Presidential elections were to be
held indirectly by an Electoral Col-
Attorney-General lege of not less than 80,000 electors,
”
equally distributed between East
and Chiefs of the and West Pakistan provinces. The
legislature functioned independ-
Armed Forces. ently of the executive. The President
was also empowered to dissolve the
National Assembly. However, in
case of dissolution the President too
had to quit.38
Constitution of 1973:
Era of Parliamentary
Sovereignty
The most significant feature of the
27
Constitution of 1973 was an undi-
luted form of parliamentary system.
The President was required to act on
and in accordance with the advice of
Constitution of Pakistan and Peoples’ Rights
the Prime Minister, which was bind-
President. The President was given tee, three Services Chiefs and Gov-
ing on him/her. The President could
the power to appoint, at his/her dis- ernors was significantly curtailed.
not exercise the option to appoint a
cretion, Chiefs of Armed Forces and Previously, such appointments were
member of the National Assembly
Chief Election Commissioner. The made by the President "after consul-
as Prime Minister. The Prime Minis-
President was also given the power tation with" the Prime Minister.
ter became de facto Chief Executive
of the federation. However, execu-
to appoint Governors of provinces After the amendment this power
tive authority of the federation was
in consultation with the Prime Min-
ister. However, this consultation
was exercisable "on advice of" the
Prime Minister. The "advice" of the
to be exercised in the name of the
President by the federal government
was not binding on the President. Prime Minister is binding on the
President, whereas "consultation" is
consisting of the Prime Minister and
Federal Ministers. The President did
The President was also given power
to appoint the Prime Minister,
not.
not have the power to dissolve the
National Assembly, which could
although for a limited period of five Legal Framework Order:
years, until March 20, 1990. There- Revival of Eighth Amend-
only be dissolved on the advice of
the Prime Minister.
after, the President was required to ment
invite a member of the National The main provisions of the Legal
The President, subject to the advice
Assembly for this office who com- Framework Order (LFO) of August
of the Prime Minister, was entrusted
manded confidence of the majority
of its members, as ascertained in a
2002 impacting executive-legisla-
ture relations are as follows:
with some key appointments such as
those of Chief Justices and Judges
session of the Assembly summoned
for that purpose. The same applied XReviving Article 58(2) B, the
of the Supreme Court and High
Courts, Governors of the provinces,
to the power of Governors in the
process of choosing a Chief Minis-
President was once again vested
with discretionary powers to dis-
Attorney-General and Chiefs of the
Armed Forces.39
ter of a province.40 solve the National Assembly.
Likewise the Governors were
Eighth Amendment: Ero-
Thirteenth Amendment: given the same discretion to dis-
Restoration of Parlia- solve Provincial Assemblies with
sion of Parliamentary
Sovereignty
mentary Sovereignty prior approval of the President.
The Eighth Constitutional Amend-
The Thirteenth Constitutional The National Security Council
Amendment, passed in 1997, was created as a constitutional
ment, passed in 1985, significantly
diluted the parliamentary form of
reversed the changes made in the
original Constitution of 1973 through
body to serve as a forum for con-
sultation on strategic matters.
government by eroding parliamen-
tary sovereignty. Earlier the Presi-
the Eighth Amendment, thus restor-
ing parliamentary sovereignty. XThe President was given discre-
dent was required to act on the
tionary powers to appoint Chair-
advice of the Prime Minister or Cab-
The most significant amendment man Joint Chiefs of Staff Com-
inet, whereas now the President
was the deletion of Article 58(2) (B) mittee, the three Service Chiefs
could ask the Prime Minister or the
which gave discretionary powers to and the provincial Governors.
Cabinet to reconsider such advice.
the President to dissolve the Previously, s/he was required to
National Assembly. The correspon- appoint them on the advice of the
The President was empowered to
ding power of Governors to dissolve Prime Minister.
dissolve the National Assembly at
the Provincial Assembly was also
her/his discretion. The Governor
withdrawn. XArticle 260 of the Constitution
28
could also dissolve Provincial
defines "consultation" as discus-
Assembly at his/her discretion, sub-
The power of the President in mak- sion and deliberation which shall
ject to the prior approval of the
ing key appointments of the Chair- not be binding on the President.
man Joint Chiefs of Staff Commit-
Constitution of Pakistan and Peoples’ Rights
“
The LFO
also provided that
11 Orders and Ordi-
nances issued by the
incumbent military
authorities would
remain in the Sixth
Schedule of the Con-
stitution, and could
not be amended with-
”
out the permission of
the President.
29
XThe LFO provided that in case of
dissolution of the Assemblies the
President and the Governors
would appoint a caretaker govern-
ment in the centre and the
provinces respectively.
XThe LFO also provided that 11
Orders and Ordinances issued by
the incumbent military authorities
would remain in the Sixth Sched-
ule of the Constitution, and could
not be amended without the per-
mission of the President.
XThese included the Qualification
to Hold Public Offices Order,
2002, which barred a person from
holding the office of prime minis-
ter or chief minister more than
twice. It applied even in cases
where a prime minister or chief
minister might not have com-
pleted the full term of office.42
Seventeenth Constitu-
tional Amendment
The main provisions of the Seven-
teenth Amendment of December 31,
2003 impinging on executive-legis-
lature relations are as follows:
XArticle 41 was amended to pro-
vide for the vote of confidence for
the President (General Pervez
Musharraf) in place of elections
between the candidates, as
required under the Constitution of
1973.
XThe amended Article 58(2) B pro-
vided that the President, in case of
dissolution of the National
Assembly shall, within fifteen
days of the dissolution, refer the
matter to the Supreme Court. The
Court shall decide the reference
within thirty days and that deci-
sion shall be final.
XLikewise a Governor, with previ-
ous approval of the President,
shall refer the case of dissolution
of Provincial Assembly to the
Supreme Court within fifteen
days of dissolution and the Court
shall decide the reference within
thirty days, and that decision shall
be final.
XThe discretionary powers of the
President for the appointment of
Services Chiefs were now
watered down by including "con-
sultation" of President with Prime
Minister. Consultation with the
Prime Minister, unlike advice, is
not binding on the President
under Article 260 of the Constitu-
tion.42
XProvision of National Security
Council as a constitutional body
was omitted.
Constitution of Pakistan and Peoples’ Rights
Relations between
Federation and Provinces
Federalism Fundamental Principles
Federalism is a form of political
association and organization that
of Federalism
Federal systems are based on six
unites separate polities (centre and
provinces) within a more compre-
fundamental principles: (1) non-
centralization; (2) predisposition
hensive political system, allowing
each polity to maintain its own
towards democracy; (3) a system
of checks and balances; (4) a
fundamental political integrity. process of open bargaining; (5) a
Federalism can be understood as written constitution; and (6) con-
constitutional power sharing stitutionally fixed demarcations of
through systems that combine self- the polities.44
rule and shared rule. In federal sys-
tems, basic policies are made and
implemented thorough negotiation
so that all members share in mak-
ing and executing decisions.43
What is a Federation?
X A federation is a political system in which power is constitutionally divided
between the centre and the federating units or the constituent subdivisions.
Federalism is a way of organizing a state so that there is a division of pow-
ers between central and regional governments, each independent within a
pre-defined sphere.
X The territory of a federal state is divided into units - provinces, states, can-
tons, regions, and even republics - that often coincide with distinctive geo-
graphical, cultural or historic divisions of the country.
X Many of the institutions of government are duplicated at the national and
local levels with both levels of government exercising effective control over
the same territory and population.
X Each of the two sets of governments exercises authority directly on the peo-
ple; neither owes its powers to a grant of authority from the other, but to a
30
constitution that is superior to both.
X In a true federal state, both levels of government derive their powers directly
Constitution of Pakistan and Peoples’ Rights Constitution of Pakistan and Peoples’ Rights

“
Constitutional Back- provinces, the federal system
ground showed a marked tendency towards
from the constitution and neither is able to eliminate the other's jurisdiction. Since 1935, the principle of feder- unified control and authority.
In this way a federal state is distinguished from a unitary state with territo- alism have found acceptance and
A federal rial sub-units (divisions, districts, etc.) that receive all of their powers by del- influenced all constitutional The Constitution of 1962 contained
egation from a central government. arrangements in the subcontinent. the word federation in the pream-
system of government X At the other extreme, a federal system of government should be distin- The Government of India Act, ble, but nowhere else in the rest of
should be distin- guished from a confederation, or league of states, in which the central level
of government received all its powers from the member states and has no
1935 made the provinces separate
legal entities and envisaged consti-
the Constitution. It provided for a
much simpler method of distribu-
guished from a autonomous powers of its own. tutional division of responsibilities
based on federal, provincial and
tion of powers, with only one list of
subjects of national importance; all
X In case of a conflict between the centre and a provincial government, each
confederation, or acting properly within its jurisdictional limits, the case is resolved in favour concurrent lists of subjects. other subjects were left to the
provinces. The President enjoyed
of the national government as the ultimate focus of sovereignty. To resolve
league of states, in the dispute in favour of the constituent unit would be to convert the system After the establishment of Pakistan, overriding control and supervision
into a confederation of sovereign states. the Objectives Resolution also pro- over the provincial executives.
which the central level X Federalism is one of the most sophisticated systems of government ever
vided for a federal form of govern- Governors held actual executive
ment. In 1955 the four provinces of authority in the province. The
of government devised because of the dual requirement of organizing national unity on
common purposes while preserving local diversity in the same society. West Pakistan were merged into Provincial Cabinets were responsi-
received all its powers X The success of federalism requires that the value of consensus that holds
One Unit and Parity (50:50) was
declared between East and West
ble to the Governor who, however,
could appoint or remove provincial
the federal system together must be stronger than the diversity of local val-
from the member ues that tend to pull it apart. Yet those who emphasize local values must
Pakistan. The people of East Pak-
istan and the smaller provinces of
ministers with the concurrence of
the President.
have demonstrated confidence that the centre will respect them. The
states and has no West Pakistan resented this iniqui-

”
necessity of balancing unity and diversity makes a federal system rather
difficult to operate effectively. tous arrangement. Both One Unit Constitution of 1973
autonomous powers X The United States of America was the first modern nation-state to adopt a
and principle of Parity were abol- The very first Article of the Consti-
ished on July 1, 1970. tution of 1973 declares Pakistan a
of its own. federal constitution. In the nineteenth century some of the new states of
South and Central America (Venezuela, Colombia, Argentina, Brazil and Federal Republic. The most notable
Mexico) were organized on federal lines. The federal form envisaged in the development in respect of federal-
Constitution of 1956 was similar in ism was the introduction of bicam-
X But federal constitutions have been of less enduring significance there many respects to the Government eralism46 for the first time in the
than in Switzerland (1848); Canada (1867) and Australia (1901) which, of India Act, 1935. Three lists of constitutional history of the coun-
along with the United States, are the countries which have been practicing
subjects were drawn up, i.e. fed- try, with a second chamber wherein
federal constitutionalism without interruption for the longest time.
eral, provincial and concurrent for all federating units were equally
X In the twentieth century many of the constitutions established in the distribution of legislative powers represented.
process of worldwide political reorganization following the two World Wars between the centre and the
have incorporated the federal principle. Federalism has been a feature of provinces. The Constitution made Two lists of subjects were drawn
constitutions adopted by many of Britain's former colonies, among them,
very little change in distribution of up, federal and concurrent, for dis-
India, Pakistan, Malaysia, and Nigeria.
financial resources between the tribution of legislative powers
X The balance of power and of citizen's allegiance between the two levels of centre and the provinces, which between the federation and the con-
government is a dynamic element in the politics of a federal state. In some weighed heavily in favour of the stituent units. The Constitution did
federations, the forces of centralization, especially when fostered by a sin- centre. It provided for a National not provide for a separate provin-
gle unified political party, may be so strong as to negate the autonomy of Finance Commission with the task cial legislative list of subjects.
the local level of government. In others the forces of decentralization may
of making suitable recommenda- However, Provincial Assemblies

31 32
be such that they lead to the break-up of the federal state (as in the case
of British West Indian Federation). For a federal system to endure, there tions on distribution of the net pro- were empowered to make laws on
must be significant independent political forces supporting each level of ceeds of some important taxes. As residuary subjects, that is, matters
government.45 regards administrative relations not enumerated in either the federal
between the centre and the or concurrent lists.
Constitution of Pakistan and Peoples’ Rights
Besides the National Finance Com-
mission and National Economic
Council, the Constitution provided
for Council of Common Interests
for the formulation and regulation
of policies on matters relating to
Part II of the Federal Legislative
List and Electricity on the Concur-
rent List. The Council was to be
appointed by the President and its
“
members comprised Chief Minis-
Federalism is a form of
political association and organization
that unites separate polities (centre and
”
provinces) within a more comprehensive
political system
ters of the provinces, with an equal
number of members from the Fed-
eral Government; and the Prime
Minister as Chairman of the Coun-
cil.
Amendments in Constitu-
tion of 1973
The manner in which the Legal
Framework Order 2002 brought
about changes in the Constitution
through an un-elected central
authority militates against the fed-
eral principle. The LFO and Seven-
teenth Constitutional Amendment
make local government a substan-
33
tive part of the Constitution and all
local government ordinances have
been made part of the Sixth Sched-
ule for six years, even though local
government has always been a
provincial subject. Likewise the
Police Order 2002 has become part
of the Sixth Schedule for six years,
despite the police essentially being
a provincial subject.
The Seventeenth Amendment also
amends Article 41, providing for a
vote of confidence for the President
(General Musharraf) by a simple
majority of the members present
and voting. In the previous voting
procedure for electing the President
all four provincial Assemblies were
given equal weightage, i.e. NWFP,
Sindh and Punjab Assemblies had
votes equal to those of Balochis-
tan. But the new one-time process
makes the Punjab Assembly
numerically superior to not only
the other three provincial legisla-
tures but also the National Assem-
bly and the Senate. This provision
violates the spirit of federalism and
rights of the provinces.
The position of Governor in a
province, as provided under the
LFO and the Seventeenth Amend-
ment, also goes against the federal
principle. The President has the
authority to appoint provincial
Governors. The Governor has dis-
cretionary power to dissolve the
Provincial Assembly with the
approval of the President, although
s/he must refer the dissolution to
the Supreme Court. S/He can also
appoint a caretaker government
with the prior approval of the Pres-
ident.
Judiciary and Rights
The judiciary, as already mentioned,
is one of the three principal organs
of the state. It plays a pivotal role in
the enforcement of a legal regime of
rights in a country. The jurisdiction
of the Supreme Court of Pakistan, as
provided in Article 184 of the Con-
stitution, deals with the protection of
rights. It includes two main aspects
of rights, fundamental rights and
rights of the provinces.
Fundamental Rights
If the Supreme Court considers that a
question of public importance with
reference to enforcement of any of
the fundamental rights in chapter one
of Part II of the Constitution is
involved, it has the power to make an
order in this regard even without fil-
ing of petition by the aggrieved party.
Under Article 199, the High Court
has the power of making orders on
the application of any aggrieved
person, giving such instructions to
any person or authority, including
any government (i.e. federal or
provincial), for the enforcement of
any of the fundamental rights in
chapter one of Part II of the Consti-
tution.
Rights of Provinces
The Supreme Court has exclusive
jurisdiction to adjudicate disputes
between the federal government and
the provinces as well as amongst the
provinces themselves. This provi-
sion is a constitutional mechanism
for the protection of the rights of the
provinces.
Constitution of Pakistan and Peoples’ Rights
Appointment and
Accountability of Judi-
ciary
The procedures relating to the
appointment of judges and their
accountability are very important in
ensuring an independent judiciary.
The Chief Justice of the Supreme
Court of Pakistan is appointed by
the President, while other judges of
the Supreme Court are appointed by
the President after consultation with
the Chief Justice. The Chief Justice
of the High Court is appointed by
the President in consultation with
the Chief Justice of Pakistan and the
Governor of the respective
province. Other judges of the High
Court are appointed by the President
in consultation with the Chief Jus-
tice of Pakistan, the Governor of the
province and the Chief Justice of the
High Court.47
The Constitution of Pakistan pro-
vides for the Supreme Judicial
Council to look into the capacity
and conduct of the judges. The Con-
stitution of 1956 conferred the
power of impeachment of judges on
the Parliament. The 1962 and 1973
Constitutions provide for the
Supreme Judicial Council. The
Council consists of five judges, with
the Chief Justice of Pakistan as its
Chairman, and two senior most
judges of the Supreme Court and
34
two senior most judges of the High
Courts as its members.48
Constitution of Pakistan and Peoples’ Rights
Conclusions: Denial of
Rights and the Constitution
Pakistan's constitutional history is
replete with innumerable problems.
These problems depict a pathetic state
of rights in the country, be it the
absence of constitutional governance,
an executive-dominated system or
even an overbearing central govern-
ment, all of which have grave impli-
cations for rights.
Pakistan's Constitutional
Mayhem
The constitution in Pakistan has either
remained abrogated or suspended, and
even if restored, has undergone fre-
quent and major changes impinging
on fundamental premises on which it
was framed. Attempts to undo or dilute
the democratic order through constitu-
tional engineering have undermined
the rights of the people.
The first Constituent Assembly
entrusted with framing the constitu-
tion could not complete the task. The
second Constituent Assembly did pass
a constitution in 1956, but it lasted for
just two years, only to be abrogated by
a military coup in 1958. The second
Constitution promulgated by Ayub
Khan in 1962 was abrogated in the
second martial law by Yahya Khan in
1969. The third Constitution passed
by the National Assembly in 1973,
and still in force, has been suspended
twice over the past 31 years.49
35
There have been long spells of consti-
tutional breakdowns caused by fre-
quent military interventions. The
country witnessed four military coups
in its 57 years of existence resulting in
Constitution of Pakistan and Peoples’ Rights
to be suspended when the state of the absence of constitutional rule
emergency is in force. The Constitu- include a substantial period when a
tion also permits legislation repugnant
to certain fundamental rights, such as
functioning Parliament existed in the
country.
freedom of speech, movement,
The following table provides a com-
assembly, association, trade, business,
parison of the period when fundamen-
or profession, and protection of prop-
tal rights have remained suspended
erty rights, during the period of emer-
with the one when rights were justi-
gency. Such laws, however, stand
ciable. The table covers the period
repealed on the revocation of the
from August 14, 1947 to March 12,
abrogation or suspension of the Con- emergency.50
2003.
stitution. Every military ruler has ulti-
Some 36 years out of Pakistan's 57
mately come up with either a new Rights of Minorities
years of existence have passed with-
constitution, as in case of General Several provisions of the
out judicially enforceable fundamen-
Ayub Khan, or has disfigured and Constitution, particularly its
tal rights. It will be instructive to note
reversed the constitutional profile of Preamble and Articles 2A, 4, 25 and
that these 36 years of emergency and
the country, as was done by General
Yahya Khan and General Zia-ul-Haq,
Table: Comparative Chart on Enforceability of Fundamental Rights51
and now by General Pervez Mushar-
raf.
Fundamental Rights Years/Months/Days Fundamental Rights Years/Months/Days
A constitution is the basic law of a were enforceable were not enforceable
country. Frequent amendments and
tampering with its basic character cre- March 23, 1956 to 2 years, 6 months August 14, 1947 to 8 years, 7 months
October 6, 1958 and 13 days March 22, 1956 and 8 days
ate uncertainties regarding its fate and January 10, 1964 to 1 year, 7 months October 7, 1958 to 5 years, 3 months
future course of the country. Such September 5, 1965 and 26 days January 9, 1964 and 2 days
uncertainties adversely affect the August 14, 1974 to 2 years, 10 months September 6, 1965 to 8 years, 11 months
July 4, 1977 and 20 days August 13, 1974 and 7 days
whole domain of policy formulation December 30, 1985 to 12 years, 4 months July 5, 1977 to 8 years, 5 months
and governance in the country, with May 27, 1998 and 28 days December 30, 1985 and 25 days
equally negative fallout on political, May 28, 1998 to 4 years, 9 months
social and economic development March 12, 2003 and 12 days
Total Period 19 years, 5 months Total Period 36 years and
Suspension of Fundamen- and 27 days 24 days
tal Rights
Despite constitutional provisions on
fundamental rights and their enforce-
ability through the superior judiciary, Pakistan lags behind in Rights
a prolonged state of emergency in the In comparative standing on rights, Pakistan lags behind other
country has resulted in the suspension states in South Asia. Pakistan's record on civil and political rights
of fundamental rights and problems in remains questionable. Independent assessments of different South
their implementation. The Constitu- Asian countries over the past three decades show that Pakistan
tion of 1956 provided for suspension lags behind India, Sri Lanka, Bangladesh and Nepal in its state of
political and civil rights. (See Appendix B)
of fundamental rights upon the procla-
mation of emergency by the President Pakistan's record in respect of signing and ratifying of interna-
on account of war or internal distur- tional conventions on human rights is equally deficient. Accord-
bance. The 1962 Constitution had the ing to the Human Development Report 2003, Pakistan has signed
and ratified only three out of six main conventions on rights. Here
36
same provision. also, Pakistan is far behind Sri Lanka, Bangladesh, Nepal and
The Constitution of 1973 provides India. (See Appendix C)
that in case of proclamation of emer-
gency the President has to specify as
to which of the fundamental rights are
Constitution of Pakistan and Peoples’ Rights
“ “
36 prohibit discrimination against
minorities. Yet Pakistan's record on
preservation of minority rights is
open to question. Be it the issue of
separate electorate or blasphemy
Surpri- law, minorities in Pakistan remain
aggrieved on a number of issues.
singly, the world A rather intriguing example is the
introduction of Article 2A through
"freely" is omitted Revival of Constitutional Order
(RCO), which makes the Objectives
in the Annex. Resolution a substantive part of the
Constitution and has been repro-
Thus we have two duced in the Constitution's Annex
with one little change. The sixth
versions of the paragraph of the original Objectives
Resolution, which is a preamble of
Objectives Resolu- the Constitution, reads:
" Wherein adequate provision
tions in the Con-
shall be made for the minorities
freely to profess and practice
stitution, one as a their religions and develop their
"
cultures.
preamble that Surprisingly, the world "freely" is
omitted in the Annex. Thus we have
includes the word two versions of the Objectives Res-
olutions in the Constitution, one as a
"freely" and the preamble that includes the word
"freely" and the subsequent one in
subsequent one in the Annex, which excludes it. Since
it is the Annex that is enforceable,
”
the minorities can understandably
the Annex, which feel apprehensive on this obvious
though seemingly trivial omission.
excludes it. The issue of electorate is probably
the most contentious in Pakistan's
history. The Constitution of 1973
not only provided for a joint elec-
torate but also envisaged additional
seats reserved for minorities in the
National and Provincial Assemblies,
to be elected by members of the
respective legislatures. It was Zia-
37
ul-Haq who introduced the system
of separate electorates for the Local
Bodies elections through an amend-
ment in 1979 in the Representation
of People Act, 1976. The RCO,
however, gave constitutional recog-
nition to the separate electorate for
the first time in Pakistan by chang-
ing Articles 51 and 106, and all gen-
eral elections till 1997 were held on
the basis of separate electorates.
In separate electorates, the candi-
dacy and voting for non-Muslims
was separate and separate electoral
lists were prepared. The constituen-
cies for minorities, however, were
very large and extended over the
entire length of the country. Hence,
it became very difficult for minority
candidates to run an effective cam-
paign. The minorities and others too
have agitated against the system of
separate electorate, considering it
discriminatory on the basis of reli-
gion.
The system of separate electorates
was done away with on February
27, 2002. The situation again
changed on June 17, 2002, with the
promulgation of the Conduct of
General Elections (Second Amend-
ment) Order. It inserted sections 7-B
and 7-C into the original order. Sec-
tion 7-B reads: "Status of Ahmadis
etc. to remain unchanged."
Section 7-C states that if anybody
complains to the Revising Authority
that a person who "has got himself
enrolled as a voter" is not a Muslim,
that person will be required to state
his (or her) "belief regarding the
finality of the Prophethood of
Muhammad (peace be upon him)."
In case such a person refuses to sign
a declaration on this point or fails to
appear before the Authority, "he
shall be deemed to be a non-Muslim
and his name shall be deleted from
the joint electoral rolls and added to
a supplementary list of voters in the
same electoral area as non-Muslim."
The provision makes it clear that the
Ahmedis are treated as they were
required in separate electorate sys-
tem.52 This Order has been included
in the Sixth Schedule of the Consti-
tution through LFO 2002.
Executive-Dominated Sys-
tem: Denial of Political
Rights
Successive Governor Generals and
Presidents have acted as de facto
rulers instead of playing the ceremo-
nial role enjoined under parliamen-
tary tradition. The vice-regal legacy
of the colonial era, when non-
elected Governor General wielded
all powers, has persisted after Inde-
pendence. Pakistan has been oscil-
lating between executive-controlled
civilian governments and military
rule with the exception of only two
short-lived spells of parliamentary
sovereignty, during 1973-77 and
then in 1997-99.
A parliamentary form of govern-
ment envisages parliamentary sov-
ereignty and independence of legis-
lature in which elected representa-
tives determine policies of the gov-
ernment. But the 1956 Constitution,
the 1973 Constitution after the
Eighth Amendment, the LFO (2002)
and the Seventeenth Amendment
(2003), are devoid of parliamentary
character in a strict technical sense.
In the 1956 Constitution, a strong
President was operating from out-
side the Parliament. The Eighth
Amendment, LFO and the Seven-
teenth Amendment reversed the
position in favour of the President,
empowering him at the cost of the
elected Prime Minister and the Par-
liament.
The country has been left with an
executive-dominated political sys-
tem that does not provide for the
independence and sovereignty of
the legislature. It denies legislature
Constitution of Pakistan and Peoples’ Rights
the exclusive power to elect and
supervise a functioning government
as typically required in a parliamen-
tary form of government. The sys-
tem also negates a competitive and
fair process of coming into power.
The
A number of Ordinances and Orders
promulgated in recent years country has been
impinge on political rights, particu-
larly the Qualification to Hold Pub-
lic Offices Order, 2002. The Order,
left with an execu-
now part of the Sixth Schedule of tive-dominated
the Constitution, bars a person from
holding the office of prime minister political system
or chief minister more than twice. It
applies even to cases where a prime that does not
minister or chief minister might not
have completed the full term of provide for the
office. The number of times a per-
independence and
son becomes a prime minister is,
”
indeed, for the people of Pakistan to
decide. Many prominent leaders sovereignty of the
around the world have held the
office of prime minister more than legislature.
twice. Both Jawaharlal Nehru and
Margaret Thatcher won three con-
secutive terms. Likewise, Indira
Gandhi in India, Mahathir Moham-
mad in Malaysia, Suleyman
Demirel in Turkey and Lee Kwan
Yew in Singapore have held multi-
ple terms in office.
Federalism and Rights
of Provinces
Problems relating to federalism in
Pakistan have remained fairly com-
plex and thorny. The issue of rights
of the provinces has been on the
public agenda since the inception of
the country. But constitutional
schemes propounded by successive
regimes have not satisfied the peo-
ple of the smaller provinces, who
have been demanding provincial
38
autonomy and rights of federating
units.
In this regard two points are particu-
larly important. First, the provincial
Constitution of Pakistan and Peoples’ Rights
governments and legislatures have
been established and controlled by
the centre; and second, the distri-
bution of legislative, financial and
administrative powers between
the federation and the units has
“
clearly been tilted in favour of the
centre.
It is the centre that primarily
defines federalism in Pakistan,
often at the cost of provincial
The autonomy. The federation itself
has been controlled by the execu-
independence of the tive, thus the centre and executive
are often structurally one and the
judiciary is not only same. National and Provincial leg-
islatures, whether under a parlia-
mentary or a presidential system,
important for a stable derive their authority from the
Constitution but their real power,
political system in Pakistan's case, lie in the extra-
parliamentary, and generally, un-
but also for the elected executive. Thus problems
”
associated with legislative auton-
enforcement of rights omy and provincial autonomy,
despite being two completely dif-
ferent concepts, have the same
in a country. locu.53
Aside from the constitutional
design, there is the problem of
implementation of constitutional
provisions. For example, the Con-
stitution provides for the Council
of Common Interests, the National
Finance Commission and the
National Economic Council, but
these statutory bodies have not
been successful in terms of devis-
ing policies and taking decisions
aimed at reducing tension between
the Federation and the units.
Independence and Pre-
dictability of Judiciary
39
The independence of the judiciary
is not only important for a stable
political system but also for the
enforcement of rights in a country.
In this regard, Pakistan inherited a
healthy judicial system with a rep-
utation for integrity and compe-
tence. This is mainly attributable
to a fair system of appointment of
judges wherein appointments
were generally made on merit.54
Unfortunately, after the establish-
ment of Pakistan, state functionar-
ies corrupted the system of
appointments during the succes-
sive regimes.55 This degeneration
has had negative implications for
the independence of the judiciary
and rule of law in the country.
The predictability of the judiciary
is also important for the rule of
law.56 The record of Pakistan's
superior judiciary on this count,
however, is unenviable. Of the
four military takeovers in the last
57 years, the judiciary justified the
1958, 1977 and 1999 coups on
ground of state necessity and
declared the takeover of only 1969
as unlawful and usurpatory. Nine
legislative assemblies out of
twelve have been dissolved so far
and all dissolution orders were
challenged before the superior
judiciary. It is pertinent to note
that six of these orders were justi-
fied and only three were declared
unconstitutional. Within a span of
nine years from 1988 to 1997,
four national assemblies were dis-
solved. Their dissolution orders
were challenged before the judici-
ary, which justified the 1990 and
1996 dissolutions but did not jus-
tify the 1988 and 1993 dissolu-
tions. (Appendix D)
This phenomenon points to the
unpredictable nature of the judi-
cial outcome of constitutional
petitions of very significant
nature, which impact upon the
future course of the country.
Constitution of Pakistan and Peoples’ Rights
Chronology of
Constitutional and
Political Development
Partition Plan announced by British Government 3 June 1947
Independence Act passed by British Parliament
First Constituent Assembly came into being
18 July 1947
26 July 1947
Inaugural Session of First Constituent Assembly
Quaid-i-Azam elected President of Constituent Assembly
10 August 1947
11 August 1947
Appointment of Constitutional Committee on Fundamental
Rights of Citizens and Rights of Minorities
12 August 1947
Transfer of Power ceremony held in Karachi
Objective Resolution adopted by Constituent Assembly
14 August 1947
12 March 1949
Basic Principles Committee appointed by Constituent Assembly 12 March 1949
Report of Basic Principles Committee presented 22 December 1952
in Constituent Assembly
Dissolution of First Constituent Assembly 24 October 1954
Indirect Elections for Second Constituent Assembly 25 May 1955
West Pakistan Act passed 30 September 1955
Constitution of 1956 passed 29 February 1956
Constitution of 1956 promulgated 23 March 1956
First Martial Law imposed by General Ayub Khan; 7 October 1958
Dissolution of Second Constituent Assembly;
Abrogation of the Constitution of 1956
Basic Democracies Order 27 October 1959
First Basic Democracy Elections January 1960
General Ayub elected President (indirectly) 14 February 1960
Constitution of 1962 announced 1 March 1962
Indirect Elections held for Third Legislative Assembly 28 April 1962
First Session of Third Legislative Assembly 8 June 1962
Presidential Elections (indirect) 2 January 1965
Indirect Elections for Fourth Legislative Assembly 21 March 1965
First Session of Fourth Legislative Assembly 12 June 1965
Sheikh Mujeeb-ur-Rehman announced Six Points 5 February 1966
40
Second Martial Law imposed by Yahya Khan; 25 March 1969
Constitution of 1962 abrogated;
Fourth Legislative Assembly dissolved
First General Elections on the basis of Adult Franchise 7 December 1970
Military Action in East Pakistan 25 March 1971
Constitution of Pakistan and Peoples’ Rights Constitution of Pakistan and Peoples’ Rights

Fall of Dacca 16 December 1971 No-Confidence Motion against 1 November 1989

General Yahya Khan resigned; 20 December 1971 Prime Minister Benazir Bhutto defeated
Zulfiqar Ali. Bhutto took over as President Eleventh Constitutional Amendment introduced in Senate 31 December 1989
and Chief Martial Law Administrator Dissolution of Eighth National Assembly 6 August 1990
First Session of Fifth National Assembly 14 April 1972 General Elections 24 October 1990
Interim Constitution passed by National Assembly 17 April 1972 First Session of Ninth National Assembly 3 November 1990
Appointment of Constitutional Committee by National Assembly 17 April 1972 Twelfth Constitutional Amendment passed 20 July 1991
Supreme Court declared Yahya Khan's 20 April 1972 Dissolution of Ninth National Assembly 18 April 1993
Martial Law Illegal First ever Restoration of Legislative Assembly 26 May 1993
Martial Law lifted; Interim Constitution of 1972 enforced 21 April 1972 by Supreme Court
Draft Report of Constitution presented in National Assembly 31 December 1972 Ninth Legislative Assembly again dissolved on the advice 18 July 1993
Constitution of 1973 passed 10 April 1973 of Prime Minister
Constitution of 1973 assented to by President 12 April 1973 General Elections 6 October 1993
First ever Session of the Senate of Pakistan 6 August 1973 First Session of Tenth National Assembly 15 October 1993
Constitution of 1973 enforced 14 August, 1973 Dissolution of Tenth National Assembly 5 November 1996
First Constitutional Amendment passed 25 April 1974 General Elections 3 February 1997
Second Constitutional Amendment passed 7 September 1974 First Session of Eleventh National Assembly 15 February 1997
Third Constitutional Amendment passed 12 February 1975 Thirteenth Constitutional Amendment passed 1 April 1997
Fourth Constitutional Amendment passed 17 November 1975 Fourteenth Constitutional Amendment passed 1 July 1997
Fifth Constitutional Amendment passed 8 September 1976 Fifteenth Constitutional Amendment passed 9 October 1998
Sixth Constitutional Amendment passed 23 December 1976 in National Assembly
Fifth National Assembly dissolved on advice of Prime Minister 10 January 1977 Emergency declared 28 May 1998
General Elections for Sixth National Assembly 7 March 1977 Joint Sitting of Parliament passed 10 June 1998
First Session of Sixth National Assembly 26 March 1977 Resolution Ratifying Emergency
Seventh Constitutional Amendment passed 16 May 1977 Sixteenth Constitutional Amendment passed 27 July 1999
Third Martial Law imposed by General Zia; 5 July 1977 Fourth Military Coup led by General Pervez Musharraf 12 October 1999
Constitution of 1973 suspended; Provisional Constitutional Order (PCO) 1 of 1999 issued; 14 October 1999
Sixth Legislative Assembly and First Senate dissolved PCO suspended the Constitution, suspended Eleventh National
Provisional Constitutional Order issued 24 March 1981 Assembly and Second Senate, and declared State of Emergency
Formation of Majlis-e-Shoora (Federal Council) 24 December 1981 Supreme Court validated take-over 12 May 2000
Referendum by General Zia 19 December 1984 Chief Executive General Pervez Musharraf assumes office 20 June 2001
Non-Party based General Elections 25 February 1985 of President; dissolution of Eleventh National Assembly
Revival of Constitution Order promulgated 2 March 1985 and Second Senate
First Session of Seventh National Assembly 20 March 1985 Referendum by General Musharraf 30 April 2002
First Session of Second Senate 21 March 1985 Legal Framework Order promulgated 21 August 2002
Eighth Constitutional Amendment passed 31 October 1985 General Elections 10 October 2002
Third Martial Law lifted 30 December 1985 Partial Revival of the Constitution; 16 November 2002
Ninth Constitutional Amendment passed by Senate 8 July 1986 First Session of Twelfth National Assembly

41 42
Tenth Constitutional Amendment passed 18 March 1987 Election of Prime Minister 21 November 2002
Dissolution of Seventh National Assembly 29 May 1988 Senate Elections 24 & 27 Feb. 2003
General Elections 16 November 1988 Complete Revival of Constitution; First Session of Third Senate 12 March 2003
First Session of Eighth National Assembly 30 November 1988 Seventeenth Constitutional Amendment passed 30 December 2003
Constitution of Pakistan and Peoples’ Rights Constitution of Pakistan and Peoples’ Rights

Notes and References

1
Encyclopedia Britannica (Macropaedia), "Constitutional Law", William Benton Hamid Khan, Constitutional and Political History of Pakistan, Oxford University
18

Publisher, University of Chicago, 1980. p. 84. Press, Karachi, 2002. pp. 31-34.

2
Ibid., p. 93. 19
Ibid., p. 40.

3
Ibid., p. 94. G.W. Choudhry, Constitutional Development in Pakistan, Longman Group Ltd.,
20

London, 1969. p. 23.

4
UNDP Human Development Report: Human Rights and Human Development,
Oxford University Press, New York, 2000. p. 114. Ibid., p. 35.
21

5
World Bank, "Introduction", Development and Human Rights: The Role of World Constituent Assembly of Pakistan Debates, Karachi, 1949, Vol. V. No 5, 100-1.
22

Bank, World Bank, Washington D.C., 1998.

Government of Pakistan, Ministry of Law, Constitution of the Islamic Republic of
23

6
UNDP, "Foreword", Human Development Report: Human Rights and Human Pakistan, 1973. Article 6.
Development, Oxford University Press, New York, 2000.
24
Muhammad Munir, Justice, A Commentary on the Constitution of Islamic Repub-
7
UNDP Human Development Report: Human Rights and Human Development, lic of Pakistan, 1973, PLD Publishers, Lahore, 1973. p. 215.
Oxford University Press, New York, 2000. p. 56.
25
"Province of East Pakistan versus Muhammad Mehdi Ali Khan and Others", PLD
8
Amartya Sen, Development as Freedom, Oxford University Press, Oxford, 1999. 1959, SC. (Pak) cited in Rizvi, Syed Shabbar Raza. Constitution of Islamic Repub-
p. 4. lic of Pakistan with a Commentary, Nadeem Law Book House, Lahore, 1992. p.
29.
9
Ibid., p.5.
"Abul A'la Moududi v. Government of West Pakistan" PLD 1964 SC 673 and
26

World Bank Governance Indicators quoted in UNDP Human Development

10 also Observations of Lord Coke in Lady Bonham's Case, 77 E.R. P-638 cited in
Report: Deepening Democracy in Fragmented World, Oxford University Press, Rizvi, Syed Shabbar Raza. Constitution of Islamic Republic of Pakistan with a
New York, 2002. p. 37. Commentary, Nadeem Law Book House, Lahore, 1992. p. 29.

UNDP Human Development Report: Deepening Democracy in Fragmented

11 27
Ibid.
World, Oxford University, New York, 2002. p.4.
28
Muhammad Munir, Justice, A Commentary on the Constitution of Islamic Repub-
12
Ibid., p.4. lic of Pakistan, 197, PLD Publishers, Lahore. pp. 217-218.

13
http://www.freedomhouse.org/rese14 arch/freeworld/2003/methodology.htm G.W. Choudhry, Constitutional Development in Pakistan, Longman Group Ltd.,
29

London, 1969. p. 21
14
http://www.freedomhouse.org/research/freeworld/2003/methodology.htm
Hamid Khan, Constitutional and Political History of Pakistan, Oxford University
30

15
http://www.freedomhouse.org/research/freeworld/2003/methodology.htm Press, Karachi, 2002. p. 910.

16
http://www.freedomhouse.org/research/freeworld/2003/methodology.htm 31
Ibid., p. 911.

43 44
UNDP Human Development Report: Deepening Democracy in Fragmented
17 32
Ibid.
World , Oxford University, New York, 2002. p. 67.
33
Seymour Martin Lipset, ed., The Encyclopedia of Democracy. Vol. 3, Routledge,
Constitution of Pakistan and Peoples’ Rights Constitution of Pakistan and Peoples’ Rights

London, 1995. p. 911. Press, Karachi, 2002. p. 869.

34
Ibid., p. 911.
48
Ibid., p. 874.

Juan J. Linz. "Parliamentarism and Presidentialism ", adopted from Lipset, Sey-
35 The Constitution of 1973 has remained suspended from July 5, 1977 to Decem-
49

mour Martin. (ed.) The Encyclopedia of Democracy, London: Routledge, 1995. pp. ber 30, 1985, and again from October 14, 1999 to March 12, 2003.
910-13.
Hamid. Khan, Constitutional and Political History of Pakistan, Oxford University
50

G.W. Choudhry, Constitutional Development in Pakistan, Longman Group Ltd.,

36 Press, Karachi, 2002. p. 911.
London, 1969. pp. 29-32.
The table is a modified and updated version of the table cited in Hamid Khan's
51

Government of Pakistan, Constitution of Islamic Republic of Pakistan, Govern-

37 book, Constitutional and Political History of Pakistan.
ment of Pakistan, 1956. Article 37(6).
I.A. Rehman, " Joint Electorate? Not Quite", DAWN, Islamabad. September 17,
52

G.W. Choudhry, Constitutional Development in Pakistan, Longman Group Ltd.,

38 2002.
London, 1969. pp. 188-212.
53
Paula R. Newberg, Judging the State: Courts and Constitutional Politics in Pak-
Hamid Khan, Constitutional and Political History of Pakistan, Oxford University
39 istan, Cambridge University Press, Cambridge, 1995, p. 28.
Press, Karachi, 2002. pp. 493.
Hamid Khan, Constitutional and Political History of Pakistan, Oxford University
54

40
Ibid., pp. 677. Press, Karachi, 2002. p. 869.

The Gazette of Pakistan, Government of Pakistan, Islamabad, August 21, 2002.

41 Ibid., p. 870.
55

The Gazette of Pakistan, Government of Pakistan, Islamabad, December 31,

42 World Bank Governance Indicators cited in UNDP Human Development Report,
56

2003. Deepening Democracy in Fragmented World, Oxford University, New York, 2002.
p. 37
43
Seymour Martin Lipset, ed., The Encyclopedia of Democracy, Vol. 2, Routledge,
London, 1995. pp. 474-5.

Ibid., pp. 476.

44

45
Based on the piece on Federalism by Peter H. Russell, University of Toronto in
Adam Kuper and Jessica Kuper (editors), The Social Science Encyclopedia, repro-
duced for the Serivces Book Club by Wajidalis (Private) Limited, Lahore, 1989, p.
297 and Jack C. Plano & Roy Olton, The International Relations Dictionary, Holt,
Rinehart and Winston, Inc., New York, 1969. pp. 181-182.

Bicameralism is a type of legislature, which has two chambers, the upper house
46

and the lower house. The upper house in federal systems is also known as federal
chamber because it represents the constituent units of the federation.

Hamid. Khan, Constitutional and Political History of Pakistan, Oxford Univer-

47

sity

45 46
Constitution of Pakistan and Peoples’ Rights
Suggested Readings
Choudhry, G.W., Constitutional Development in Pakistan, Longman Group
Ltd., London, 1969.
Consumer Unity and Trust Society, Access to the Constitution: A
Neglected Right, India, 1995.
Finer, S.E., Bogdanor, V., and Rudden, B, Comparing Constitutions,
Oxford University Press, New York, 1995.
Kurian, George Thomas, Ed. World Encyclopaedia of Parliaments and
Legislatures, Fitzroy Dearborn Publishers, Chicago, 1998.
Government of Pakistan, Ministry of Law, Constitution of the Islamic
Republic of Pakistan. 1973. (Different editions)
Government of Pakistan, Constitution of Pakistan, 1956.
Government of Pakistan, Constitution of Pakistan, 1962
Jalal, Ayesha, Democracy and Authoritarianism in South Asia: A Compar-
ative and Historic Perspective, Cambridge University Press, Cambridge,
1995.
Khan, Hamid, Constitutional and Political History of Pakistan, Oxford
University Press, Karachi, 2002.
Lipset, Seymour Martin, (Ed.), The Encyclopaedia of Democracy, Rout-
ledge, London, 1995.
Munir, Muhammad, Justice,. A Commentary on the Constitution of
Islamic Republic of Pakistan, 1973, PLD Publishers, Lahore.
Rabbani, S.A. Amendments in the Constitution of 1973 of Islamic Repub-
lic of Pakistan, National Assembly of Pakistan, Islamabad, 1999.
47 Rizvi, Syed Shabbar Raza, Constitution of Islamic Republic of Pakistan
with a Commentary, Nadeem Law Book House, Lahore, 1992.
Constitution of Pakistan and Peoples’ Rights
Sen, Amartya, Development as Freedom, Oxford University Press,
Oxford, 1999.
UNDP. Human Development Report, Human Rights and Human Develop-
ment, Oxford University Press, New York, 2000.
UNDP. Human Development Report; Deepening Democracy in a Frag-
mented World, Oxford University Press, New York, 2002.
UNDP Annual Human Development Report. 2003, Millennium Develop-
ment Goals; a Compact Among Nations to End Human Poverty, Oxford
University Press, New York, 2003.
Washbrook, David, 'The Rhetoric of Democracy and Development in Late
Colonial India', cited in Nationalism, Democracy and Development: State
and Politics in India, Sugata Bose and Ayesha Jalal, eds., Oxford Univer-
sity Press, Delhi, 1998.
Wilder, Andrew R., The Pakistani Voter: Electoral Politics and Voting
Behaviour in the Punjab, Oxford University Press, Karachi, 1999.
World Bank. "Introduction", Development and Human Rights: The Role
of World Bank, World Bank, Washington D.C., 1998.
48
Constitution of Pakistan and Peoples’ Rights Constitution of Pakistan and Peoples’ Rights

Appendix A Appendix B
Amendments in the Constitution of 1973 Table: State of Political and Civil Rights in South Asia
From 1972 to 2002

Serial Title of the Amendment Passed by Passed by Assented

No. National Senate to by the Remarks
Assembly President

1 First Constitutional Amendment Act, 1974
2 Second Constitutional Amendment Act, 1974
3 Third Constitutional Amendment Act, 1975
4 Fourth Constitutional Amendment Act, 1975
5 Fifth Constitutional Amendment Act, 1976
6 Sixth Constitutional Amendment Act, 1976
7 Seventh Constitutional Amendment Act, 1977
8 Eighth Constitutional Amendment Act, 1985
9 Ninth Constitutional Amendment Bill, 1986
10 Tenth Constitutional Amendment Act, 1987
11 Eleventh Constitutional Amendment Bill, 1989
12 Twelfth Constitutional Amendment Act, 1991
13 Thirteenth Constitutional Amendment Act, 1997
14 Fourteenth Constitutional Amendment Act, 1997.
15 Fifteenth Constitutional Amendment Bill, 1998
16 Sixteenth Constitutional Amendment Act, 1999
17 Seventeenth Constitutional Amendment
Act, 2003.
23-04-1974 25-04-1974 4-05-1974 The amendment became an Act of Parliament
7-09-1974 7-09-1974 17-09-1974 The amendment became an Act of Parliament
12-02-1975 12-02-1975 13-02-1975 The amendment became an Act of Parliament
14-11-1975 17-11-1975 21-11-1975 The amendment became an Act of Parliament
5-09-1976 8-09-1976 13-09-1976 The amendment became an Act of Parliament
22-12-1976 23-12-1976 31-12-1976 The amendment became an Act of Parliament
There have been independent assessments of the state of rights
16-05-1977 16-05-1977 16-05-1977 The amendment became an Act of Parliament in various countries of the world. The New York based think-
16-10-1985 31-10-1985 9-11-1985 The amendment became an Act of Parliament
8-07-1986 The Bill was considered in the National Assembly
tank, Freedom House, has been assessing the state of political
but lapsed due to dissolution on 29.5.1988 rights and civil liberties annually since 1972. The assessment
12-03-1987 18-03-1987 25-03-1987 The amendment became an Act of Parliament
The Bill was moved in the Senate on 31-12-1989
assigns values to each of the categories of the political rights
and subsequently withdrawn by the movers on and civil liberties. On the basis of this valuation, countries are
23-8-1992
18-07-1991 20-07-1991 27-07-1991 The amendment became an Act of Parliament
annually designated into three categories, i.e. Free, Partly Free
1-04- 1997 1-04-1997 3-04-1997 The amendment became an Act of Parliament and Not Free. The tables on the following pages show the year-
1-07- 1997 30-06-1997 3-07-1997 The amendment became an Act of Parliament
9-10- 1998 The Bill was not passed by the Senate
wise designations that seven countries of South Asia have been
27-07-1999 3-06-1999 3-08-1999 The amendment became an Act of Parliament assigned.
29-12-2003 30-12-2003 31-12-2003 The amendment became an Act of Parliament

Source: The data for the table has been gathered from different sources.
For further details of the amendments, See S.A. Rabbani, Amendments in the
Constitution of 1973 of Islamic Republic of Pakistan, National Assembly of
Pakistan, Islamabad, 1999, and The News, Islamabad. August 22, 2002.

49 50
Constitution of Pakistan and Peoples’ Rights Constitution of Pakistan and Peoples’ Rights

Year Bangladesh Bhutan India Maldives Nepal Pakistan Sri Lanka Table: Comparative Profile of Political and Civil Rights in
1972-73 Partly Free Partly Free Free Free Not Free Partly Free Free South Asia 1972 to 2002
1973-74 Partly Free Partly Free Free Free Not Free Partly Free Free
1974-75 Partly Free Partly Free Free Free Not Free Partly Free Free
1975-76 Not Free Partly Free Partly Free Partly Free Not Free Partly Free Partly Free
1976-77 Partly Free Partly Free Partly Free Partly Free Not Free Partly Free Free
1977-78 Partly Free Partly Free Free Partly Free Not Free Partly Free Free Country Free Party Free Not Free Ranking
1978-79 Partly Free Partly Free Free Partly Free Not Free Partly Free Free India 21 9 0 1
1979-80 Partly Free Partly Free Free Partly Free Partly Free Not Free Free Sri Lanka 10 20 0 2
1980-81 Partly Free Partly Free Free Partly Free Partly Free Not Free Free Bangladesh 2 27 1 3
1981-82 Partly Free Partly Free Free Partly Free Partly Free Not Free Free Nepal 2 21 7 4
1982-83 Partly Free Partly Free Free Partly Free Partly Free Not Free Free
Pakistan 0 21 9 5
1983-84 Partly Free Partly Free Free Partly Free Partly Free Not Free Partly Free
1984-85 Partly Free Partly Free Free Partly Free Partly Free Not Free Partly Free
Bhutan 0 20 10 6
1985-86 Partly Free Partly Free Free Partly Free Partly Free Partly Free Partly Free Maldives 3 13 14 7
1986-87 Partly Free Partly Free Free Partly Free Partly Free Partly Free Partly Free
1987-88 Partly Free Partly Free Free Partly Free Partly Free Partly Free Partly Free
1988-89 Partly Free Partly Free Free Not Free Partly Free Partly Free Partly Free
1989-90 Partly Free Partly Free Free Not Free Partly Free Partly Free Partly Free
1990-91 Partly Free Partly Free Free Not Free Partly Free Partly Free Partly Free The table clearly shows that Pakistan lags not only behind India and Sri
1991-92 Free Partly Free Partly Free Not Free Free Partly Free Partly Free
Lanka, but also Bangladesh and Nepal. There is not a single year in the
1992-93 Free Not Free Partly Free Not Free Free Partly Free Partly Free
1993-94 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free last 30 years' history of the country when Pakistan has been designated
1994-95 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free as "Free". Bhutan is the only other country in the region which shares
1995-96 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free the same status with Pakistan. It is, indeed, a sad reflection on the state
1996-97 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free
of political and civil rights in the country.
1997-98 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free
1998-99 Partly Free Not Free Free Not Free Partly Free Partly Free Partly Free
1999-00 Partly Free Not Free Free Not Free Partly Free Not Free Partly Free
2000-01 Partly Free Not Free Free Not Free Partly Free Not Free Partly Free
2001-02 Partly Free Not Free Free Not Free Partly Free Not Free Partly Free
Total Years F= 2 F= 0 F= 21 F= 3 F= 2 F= 0 F=10
for three PF= 27 PF=20 PF= 9 PF=13 PF= 21 PF= 21 PF=20
designated NF= 1 NF=10 NF=0 NF= 14 NF= 7 NF= 9 NF=0
categories

F: Free
PF: Partly Free
NF: Not Free

Source: The data has been compiled and calculated from the Annual Surveys
of Freedom House, available at www.freedomhouse.com.

Freedom House data for the last thirty years, from 1972 to 2002, has
been used to quantify and to make a ranking of the political and civil
rights profiles of South Asian countries. The table shows the number of

51
years in all three categories for each country. The years have been

52
quantified by assigning separate values for different categories and on
the basis of this valuation, a ranking of the countries has been made.
Constitution of Pakistan and Peoples’ Rights Constitution of Pakistan and Peoples’ Rights

Appendix C Appendix D
Status of Major International Human Rights Instruments Judicial Response to Military Coups
Comparative Profile of South Asia and Dissolution of Parliaments

Event Date Judicial Response

First Constituent Assembly 24-10-1954 Supreme Court upheld the
dissolved dissolution order of Governor
General Ghulam Muhammad in
Moulvi Tamizuddin Case. (1955)

Bangladesh

Sri Lanka
Maldives

Pakistan
First Martial Law; 7-10-1958 Supreme Court referring to

Bhutan

Nepal
India
International Conventions on Human Rights Second Constituent the doctrine of necessity justified
Assembly dissolved the military take-over of
General Ayub in Dosso Versus
International Convention on the Elimination of A B A A A A A State Case. (1958)
All Forms of Racial Discrimination (1965 ) Second Martial Law; 25-3-1969 Supreme Court declared the
International Covenant on Civil and A C A C A C A Fourth Legislative military take over as unlawful
Political Rights (1966) Assembly dissolved in Asma Jilani Case. (1972)
International Covenant on Economic, A C A C A C A Third Martial Law; 5-7-1977 Supreme Court again referred to
Social and Cultural Rights (1966) Sixth National Assembly the doctrine of state necessity and
Convention on the Elimination of All Forms of A A A A A A A and Senate dissolved justified the military take over
Discrimination Against Women (1979) in Nusrat Bhutto Case. (1977)
Convention Against Torture and other Cruel, A C B C A C A Seventh National 29-5-1988 Supreme Court declared the
Inhuman or Degrading Treatment or Assembly dissolved dissolution unjustified but did not
Punishment (1984 ) grant relief in Haji Saifullah Case.
Convention on the Right of the Child (1989) A A A A A A A (1988)
Ranking 1 4 2 3 1 3 1 Eighth National 6-8-1990 Supreme Court justified the
Assembly dissolved dissolution in
Khawaja Tariq Rahim Case. (1990)
A: Signature and Ratification of Convention Ninth National 18-4-1993 Supreme Court declared the
B: Signature not yet followed by ratification Assembly dissolved dissolution unconstitutional in
Nawaz Sharif Case. (1993)
C: Not even signed
Tenth National 5-11-1996 Supreme Court justified the
Assembly dissolved dissolution in Benazir Bhutto Case.
(1997 )
Note: The quantification and ranking are based on the data available in Fourth Martial Law; 12-10-1999 Supreme Court once again justified
UNDP Annual Human Development Report. 2003. Millennium Devel- Eleventh National Assembly military take-over in
opment Goals; A Compact Among Nations to End Human Poverty, and Senate suspended Zafar Ali Shah Case. ( 2000 )
Oxford University Press, New York, 2003. P.P. 331-334.

Note: Data has been compiled from different sources.

53 54
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