Chapter 27: constitutional amendments’

Salient Constitutional Clauses

• Article 25- Equality for all • Article 2- Islam as state religion

• Article 25A- Access to Education
• Article 8- No rule against basic human rights
• Article 9- Right to life and liberty
• Article 15- Freedom of movement
• Article 16- Right to assembly
• Article 20- Freedom of religion.
Article 19- Freedom of speech
• Article 4- All actions as per law
• Article 6- High Treason
• Article 10A — Right to fair trial
• Article 36- Right of Minorities
• Article 257- Kashmir
• Article 40- Good relations with
Muslim states
• Article 2A- Objectives Resolution

1. 8th amendment(1985):
 Article 62/63 : qualifications of representative under 62 and their disqualifications
under 63.a person shall not be qualified unless he is sagacious, righteous, non-
profligate, honest and ameen.
 Article 58(2)b of the Constitution: powers of president to dissolve the N.A at his own
discretion.
 The president was given the right to nominate the PM,PM advisors , COAS, governors of
the provinces and judges of HC & SC including the chief justice.
 Article 51: increased the number of NA seats from 200 to 207.
 Article 59: the number of senate seats increased from 63 to 87.
 RCO(revival of constitution order): On 2nd March 1985, the revival of Constitution
Order (P.O.14 of 1985) was issued in which a large number of amendments were made
in the Constitution. The first session of the National Assembly was held 20th March
1985. Mr. Muhammad Khan Junejo, was nominated as the Prime Minister of Pakistan by
the President (General Zia-ul-Haq). He received vote of confidence on 24th March 1985.
 On 29th May 1988 the Assembly was dissolved by the President by using the
power acquired under Article 58(2)(b)
2. 13th amendment(1997):
 The Article 58(2)(b) was later on omitted from the Constitution vide 13th Amendment in
the Constitution in April 1997. Rafiq Tarrar was made the president.

 It may be pertinent to note at this point that while, ostensibly, sixteen

amendments have been made in the Constitution so far, the ninth and the
eleventh Constitutional Amendments were, however, passed by the Senate alone
and fifteenth by the National Assembly alone, hence these amendments lapsed.
The fourteenth Amendment in the Constitution empowered a check on floor
crossing of legislators.
 In order to strengthen parliamentary democracy, it has become necessary to
restore some of the powers of the Prime Minister which were taken away by the
Constitution (Eighth Amendment) Act, 1985.

3. 17th amendment(2003):
 Article 58(2)(b): restored but 58(2)(c) added for judicial oversight. The President in case
of dissolution of the National Assembly under paragraph (b) of clause (2) shall, within
fifteen days of the dissolution, refer the matter to the Supreme Court and the Supreme
Court shall decide the reference within thirty days whose decision shall be final. High
Court and Supreme Court judges who took their oath of offices under the Provisional
Constitutional Order in 2007. Through Provisional Constitutional Order (PCO) issued on
October 14th 1999, he held the Constitution in abeyance, suspended the Senate,
National and Provincial Assemblies, Chairman and Deputy Chairman Senate, Speaker,
Deputy Speaker National and Provincial Assemblies and dismissed the Federal and
Provincial governments. The President Mr. Muhammad Rafiq Tarar was, however
allowed to continue in his office. Under PCO (order No. 6) 29th October 1999, (as
amended by C.E. Order No.5, 4th July 2001), the National Security Council was
established for the purpose to tender advice to the Chief Executive (later on President),
on matters relating to Islamic ideology, national security, sovereignty, integrity and
solidarity of Pakistan so as to achieve the aims and objective as enshrined in the
Objectives Resolution 1949.
 Article 15(a) : In the Constitution, Article 152 A shall be omitted.
 Article 179 & 195: these articles are proposed to be substituted. 179retiring age of SC
judge to be 65. Article 195 retiring age of HC judge to be 62.
 NAB ordinance.
 Intra party elections.
 4. 18th amendment(2010):
 The historic 18th Constitutional Amendment was presented and passed by the National
Assembly on April 8, 2010 and Senate on April 15, 2010 respectively.

 Removed article 58(2)(b).

 7th NFC award: According to the award, 56 percent share of the resources will be given to
the provinces and 44 percent will go to the centre. The share of the provinces will be
increased from 56 percent to 57.5 percent in the next five years.
 NSC was made to combat the global WOT. is a federal institutional and consultative
body chaired by the Prime Minister of Pakistan as its chairman. The Council serves as a
forum for consultation for the president and the federal government on matters of
national security including the sovereignty, integrity, defence, and security of the State
and crisis management in general. It may also formulate recommendations to the
president and the federal government in such matters. The Constitution of Pakistan in the
past provided for the National Security Council however the provision was repealed by
the 18th Amendment.
 CCI was made: The Council of Common Interests (CCI) is a constitutional body in
the Government of Pakistan. It is appointed by the President on the advice of the Prime
Minister. The CCI resolves the disputes of power sharing between
the federation and provinces.[1] The Council works under Ministry of Inter Provincial
Coordination(Fahmida mirza) and it responsible to both houses of Parliament, the Senate
of Pakistan and the National Assembly of Pakistan.chief ministers of all provinces and PM
of Pakistan sit and talk about their issues. After passage of the Eighteenth Constitutional
Amendment, it is mandatory for the Council to meet once in ninety days.
 Judicial commission was made: The Judicial Commission of Pakistan (informally JCP) is a
commission for the appointment of Supreme Court and High Court Judges in Pakistan.
The Chief Justice of Pakistan is the Chairman of JCP. On 20 April 2010, 18th Constitutional
Amendment was passed in the Parliament of Pakistan. In pursuance of the 18th
Amendments, a Judicial Commission was proposed to be created to recommend the
appointment of Judges of the Superior Courts in Pakistan. Article 175 (A) which was
inserted in the constitution of Pakistan through this amendment. Article 175 A.
Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court.

5. 19th amendment(2010):
When parliamentary committee rejects judicial commission’s chosen names, need to give
a reason.

6. 20th amendment(2012):
When caretaker govt. is to be formed, opposition leader and PM decide together. Abbasi
sat with khurshid shah and form a caretaker govt.
 7. 21st amendment(2015):
 The National Assembly of Pakistan passed the constitutional (21st Amendment) Act 2015
on the 6th January, 2015 and becomes Act of the Parliament on 7th January, 2015.

 Military courts were created under the constitution An extraordinary situation

and circumstances exist which demand special measures for speedy trial of
offences relating to terrorism, waging of war or insurrection against Pakistan and
prevention of acts threatening the security of Pakistan. There exists grave and
unprecedented threat to the territorial integrity of Pakistan by miscreants,
terrorists and foreign funded elements. Since there is an extraordinary situation as
stated above it is expedient that an appropriate amendment is made in the
Constitution.
 Sunset clause for 2 years:means this clause will be abolished auto. After 2 years.
 Apex committees in provinces as well  apart from NSC because ZARB E AZAB
was operational at that time.

8. 23rd amendment(2017):
 Sunset clause extended for 2 years.
 Military courts reconstituted under the constitution.

9. 24th amendment(2017):
 To allow elections to be held on provisional results of census(must occur after
every 10 years)but in pk. After 1998 it happens in 2017 to count the population.

10. 31st amendment(2018):

 To merge FATA with KPK.
 FATA seats to be included in KP assembly & FATA seats to be removed over time.

Legal cases
There are so many but following are major decisions in Pakistan’s judicial history, which not
only embarrassed the legal fraternity but also left a question mark on the judicial system of the
country, but despite criticism, such judgments continued coming from the superior courts
throughout Pakistan’s history.
Such judgments always targeted the democratic leaders on made-up charges and always
favored the dictators. These judgments were termed an embarrassing chapter of the judicial
history in the apex court’s own judgments and judges never consider principles laid down in
those judgments as precedent, though such verdicts kept coming with oft-repeated observation
— ‘justice will be done even if heavens fall’.

1. Tamiz ud din case:

The first Constituent Assembly was dissolved by the Governor General by a proclamation in
1954which was subsequently challenged by Maulvi Tamizuddin Khan. OnOctober24,1954,
Governor General (Ghulam Muhammad) issued an order of exigency declaring that the
Constitutional machinery had been broken and that the assembly could no longer function. A
new assembly would be elected and the Ministry reconstituted.

Maulvi Tamiz ud din Khan, who is the head and president of the dissolved constituent
assembly,confrontedandquestiontheactionoftheGovernorGeneralbyfilingapetitionunder article
223A of Indian Act, 1935 For a Writ of Mandamus in the Chief Court Of Sindh to restraint the
Federal Government from giving effect to the proclamation and a Writ of Quo Warranto to have
the appointment of some of the new Ministers declared as repugnant to the Act of 1935,as
amended.The petitioner alleged that the Governor General’s had no authority for issuing such
a proclamation, under any law.

a) Judgment of chief court Sindh:

A bench of the Sindh Chief Court, consisting of four judges, heard a petition and
unanimously held that the words in section 6(3) of the Independence Act to the effect
that;

“The Governor General is authorized to ratify any law of the legislature of the
Dominion…”

The powers of the Governor General were restricted to the ministry and government
officials of the Dominion and did not extend to participation in the making of the
constitution, nor to dissolution of the assembly. The court declared this dissolution ultra
vires and nullity in law.

b) Appeal to the federal court:

On appeal of the Federal Court, the decision was reversed in a historic judgment
delivered in March 1955. The case was decided inclined to government and denied the
petition of Maulvi Tamiz ud din, challenging the proclamation of the Governor General.
Four(justice munir, justice M.sharif, justice S.M Akram, justice S.A. Rehman) out of
five(justice Alvin Robert cornelius) judges held assent by the governor general to be
essential for the validity of even constitutional legislation.
 “the dissolution of the constituent assembly was held rigt and it dismissed the writ
petition.”

“Pakistan is an independent and sovereign state and ite assembly could not be
dissolved under the act of 1935” (justice cornelius)

c) Justice munir’s judgement:

In the primary judgment, delivered by Chief Justice, Muhammad Munir, it was stressed
that, as PakistanwasamemberoftheCommonwealthanditsinterimconstitutionwasofthe
Common wealth type, there must be an authority with power to assent to laws. When
the constituent assembly was not exercising the restricted law making authority of the
federal legislature under the act of 1935, it was acting as the legislature of the Dominion
as stated in Section9(1) of the Independence act. Reliance was also stated in section 5.

d) Justice A.R Cornelius dissent:

Justice Cornelius held that assent was not necessary for the validity of constitutional
legislation and no such conclusion could be drawn from the mere fact that Pakistan was
in the Common wealth, especially as the circumstances in which and the conditions
under which Pakistan became a Dominion were without precedent in Common wealth
history. The Constituent Assembly was not the law making body of the state as such a
body was still to be created by the Constituent Assembly.

“Pakistan is an independent and sovereign state and its assembly could not be
dissolved under the slavery act of 1935” (justice cornelius)

Implications of tamiz ud din case:

Tamiz-ud-din Case wrecked the fate of Pakistan as it is in a constant situation of Chaos

and political dilemma. This judgment caused immeasurable damage to the
constitutional development of Pakistan it rocked the constitutional ship of the country
at its start this judgment irrevocable weaken and harm the image and integrity of the
judiciary of Pakistan in eye of its own citizens. This case also set forth 4 martial laws in
Pakistan. These coups harm the nation in every aspect in an era of dictators the
fundamental rights of citizens of Pakistan had brutally infringed. This case also pave the
way for the separation of East Pakistan. this gave birth to the doctrine of necessity does
triggers abrogation of laws suspension of Constitution terrorism sectarianism etc.

2. Dosso case(1958):
State vs dosso case.
 Dosso v. Federation of Pakistan was the first constitutional case after the
promulgation of Constitution of Pakistan of 1956 and an important case in Pakistan's
political history. The case got prominence as it indirectly questioned the first martial law
imposed by President Iskander Mirza in 1958.

Dosso was the tribal person from district Loralai in Baluchistan then under
Provincially Administered Tribal Areas who committed a murder and got arrested by
tribal authorities and handed over to Loya jirga which convicted him under section 11 of
Frontier Crimes Regulation(FCR) of 1901. Relatives of Dosso challenged the decision in
Lahore High Court the then West Pakistan High Court which ruled in favour of Dosso.
Federal Government went on to the Supreme Court of Pakistan which reversed the High
decision by referring to the Hans Kelsen theory of Legal positivism famously the
Doctrine of necessity.Court's decision by referring to the Hans Kelsen theory of Legal
positivism famously the Doctrine of necessity.

Case facts:
The High Court considered the case according to the 1956 constitution of Pakistan
and ruled in favour of Dosso. The High Court declared that FCR is against the constitution and
Dosso is entitled to equality before law under article 5 & 7 of the constitution-equality and
protection of citizens. Loya Jirga’s decision was declared null and void. Federal Government of
Pakistan filed an appeal in Supreme Court of Pakistan against the verdict of High Court. The
Supreme Court decided the case in the favour of the Federal Government on the basis of Hans
Kelsen theory of Legal positivism.

First Martial law 1958

On 7 October 1958, a harsh change came in the political history of Pakistan.
President Iskander Mirza imposed first martial law of the country and made Commander-in-
Chief of Pakistan Army General Ayub Khan as Chief Martial Law Administrator(CMLA). All of the
government machinery; legislatures, central and provincial were dissolved.
After three days of martial law, an order named Laws (Continuance in Force) Order
1958 was issued by CMLA Ayub Khan. This order was a new legal order which replaced the old
legal order i.e The Constitution of Pakistan 1956. The legal order validated all the laws other
than constitution of 1956 and restored the jurisdiction of all courts.

Impacts of Martial law on the case

Martial law impacted the case significantly and raised some technical points that if
Supreme Court maintains the decision of Lahore High Court, it meant that constitution was still
in force because the Lahore High Court decided the case under article 5 and 7 of the
Constitution of Pakistan 1956. Also if the constitution was still in force then what will be the
status of martial law regulations and Laws (Continuance in Force) Order 1958 as it also
challenged the martial law administration.

Judgement
The Supreme Court after restoration decided the case unanimously against the decision of
Lahore High Court. Supreme Court based its decision on Hans Kelsen theory of Legal positivisim.

Significance
Dosso case has a far reaching effect on the political history of Pakistan. The recognition of
martial law and with the reborn of Kelsen’s outdated theory which afterwards was applied in
many other cases in Pakistan as well as in the outer world.

Politics of Pakistan
Supreme Court's judgement in Dosso case greatly impacted the politics in Pakistan and opened
the doors for the future martial laws in the country. Legitimization of martial law given power
to CMLA Ayub Khan who used it to rule the country for next 10-11 years. Democratic process in
the country was crippled which had recently been on the road after the promulgation of 1st
constitution in 1956 and made the country to run on the track of dictatorship. Military was
encouraged by it for future interventions which occurred three times afterwards. The decision
also deprived country of its first constitution just after two years of its promulgation after the
struggle of 9 long years. Abrogation of the 1956 Constitution also disturbed the ties between
East and West Pakistan which were recently settled by establishing parity between both wings
and incorporating both Urdu and Bengali as national language. The decision of the Supreme
Court re-validated the British implied legacy of Frontier Crimes Regulation, which was known as
the Black Law continued to be enforced in the tribal region till 2018.

Independence of Judiciary
The decision of the Supreme Court of Pakistan was a serious blow to the independence of
judiciary and judiciary was bound to render its service under new legal order. The decision also
deprived the courts to hear appeals against the action of government. The judiciary once again
bowed down in front of executive in this case and concept of separation of powers further
diminished.
 3. Asma jilani case(1972):
Asma Jilani case is the one of those important cases of the history which proved land
mark in the constitutional history of Pakistan such as State Vs. Dosso(1958), Begum
Nusrat Bhutto Vs.Chief of Army Staff (1977),Syed Zafar Ali Shah Vs. Gen. Musharraf
(1999). In the case of AsmaJilani, a detailed history of the Martial law is mentioned. In
the four out of these five cases, the Court placed reliance upon abstract legal doctrines
such as Hans Kelsen’s theory of “Grundnorm” popularly called the “Doctrine of
Necessity” to carry out the political acts.

Important Facts of the Case:

The important facts of the case were describing that the imposition of Martial Law by General
Yahya Khan and assumption of the office of Chief Martial Law Administrator by him was
challenged in Asma Jillani’s case (PLD 1972 SC 139).
The two appeals , one filed by Miss Asma Jilani in the Punjab High Court for the
release of her father Malik Ghulam Jilani , and by Mrs Zarina Gohar in the Sindh High Court for
the release of her husband Althaf Gohar, under Article 98 of the Constitution of Pakistan 1962.
The detention of Malik Ghulam Jilani and Althaf Gohar had been made under the Martial Law
Regulation No.78 of 1971. So the detention of these persons was challenged in Lahore and
Karachi High Court respectively.
The High Courts dismissed the Petitions holding that the High Court was debarred
from entertaining Habeas Corpus Petition under the of Courts (Removal and Doubts) Order
1969”.However the High Courts gave the Petitioners Certificate to appeal in the Supreme Court.
The High Court held that it had no jurisdiction because clause 2 of the Jurisdiction of
Courts(Removal of Doubts) Order No.3 of 1969 barred the courts from questioning the validity
of any act done under the Martial Law Regulation No.78 of 1978.
Asma Jilani appealed to Supreme Court which held that this country was not a foreign country
which had been invaded by any army with General Agha Mohammad Yahya khan as its Head,
nor was it an alien territory which had been occupied by the said Army. Martial Law could not
have arisen in the circumstances. Pakistan had its own legal doctrine-The Qur'an, and the
Objectives Resolution. Therefore Martial law was never superior to the Constitution.
Yahya khan was neither a victor nor Pakistan was an occupied territory and
thus declared him a "Usurper". All his actions were also declared illegal.
Repercussions:
Asma Jilani's case paved the way for the restoration of democracy. This case
was followed by the interim Constitution of 1972 and then by the permanent constitution of
1973. Due to the judicial pronouncement in the case of Asma Jilani, Bhutto was compelled to
remove the Martial law. PLD 1972 SC 139 Asma jilani case proved that western thoughts
cannot be imposed on non-western and Muslim country because Pakistan is an Islamic country
where sovereignty is of Allah Almighty.
4. Nusrat Bhutto case(1977):
Beghum nusrat Bhutto vs. COAS. And federation of Pakistan.
Facts:
Nusrat Bhutto moved superior judiciary against the imprisonment of his husband Zulfiqar Ali
Bhutto during the General Zia ul Haq Martial Law which was imposed on July 5, 1977. This case
also challenged the imposition of Martial law and the Supreme Court headed by Justice Anwar
ul Haq upheld the subversion of the constitution by General Zia. The Supreme went to the
extent of declaring; (viii) The doctrine of necessity and the principle embodied in the maxim
salus populi est supreme lex is accepted not only in the Islamic jurisprudence but in other
systems as well. The Zia Martial Law sowed the seeds of extremism in Pakistan polarizing the
society, created sectarian-based terrorist organizations which played havoc with the country
and the nation is still reaping the crop sowed by General Zia

Issues:
whether the detention of Mr. Zulfiqar Ali bhutto and the ten other leaders of the Pakistan
peoples party was legal?

Held:
The SC dismissed the petition unanimously as not being maintainable for the following reasons:
i. Asma jillani case did not render illegal the successive govt. and constitutions framed
thereafter.
ii. Madzimbamuto case(1968) cannot be regarded as judicial authority for the proposition
that effectualness of new regime provides its own legality.
iii. Kelsen’s pure theory of law is not universally accepted and is not consistent for full
application in all revolutionary situations.
iv. The doctrine of necessity and the principle embodied in the maxim salus populi est
supreme lex is accepted not only in the Islamic jurisprudence but in other systems as
well.
v. There were allegations of widespread and massive interference with sanctity of ballot
govt officials in favor of candidates of ruling party and consequently there was national
wave of resentment giving birth to country wide protest agitation.

5. Asghar khan case:

Against the IJI victory of 1990 elections(most rigged elections in the history of pakistan)
Asghar Khan filed a human rights petition based on retired Gen Naseerullah Babar’s
accusations that the ISI had purchased the loyalties of certain politicians to manipulate
 the 1990 general election. The allegations were confirmed by retired Gen Asad Durrani,
former DG ISI, in an affidavit to the apex court. In it he admitted his role in the affair,
named the other players and elaborated on how the scheme unfolded. Notwithstanding
this shocking revelation, the case languished until 2012 when the Supreme Court
handed down a landmark verdict that had the potential of redrawing the political and
institutional landscape along democratic lines. Yet there has been no accountability thus
far, either for those who administered the slush fund, nor its recipients. In a time of
hyper accountability, the silence on this front has been deafening.
Imran Khan while on the campaign trail was vocal about the significance of
the Asghar Khan case in unmasking the sordid reality behind the 1990 elections.
Politically motivated though his contention was — meant to discredit Nawaz Sharif as
one of the recipients of the intelligence agencies’ largesse and its direct beneficiary —
he must, as chief executive in a parliamentary democracy, throw his weight behind
bringing the case to trial.
6. Zafar ali shah case:
Following ouster of Muhammad Nawaz Sharif on October 12, 1999, the Supreme Court
was moved through Zafar Ali Shah case “Zafar Ali Shah vs General Pervez Musharraf”
2000 SCMR 1137. The Supreme Court led by Justice Arshad Hasan Khan and also
including Justice Iftikhar Muhammad Chaudhry not only “rejected” the petition but also
empowered the fourth dictator of Pakistan to himself amend the constitution — a relief
which was not even sought. This black judgment pushed Pakistan into a blind alley. The
backbone of country’s economy was broken and incompetent dictators and his
associates played havoc with country’s energy and all other sectors. Pakistan became
one of the leading countries worst hit by terrorism. No plans were made to meet
electricity shortage and future gas requirements. Pakistan was facing 12 to 18 hours
daily load shedding the day country got rid of the fourth dictator.
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