Constitutional History of Pakistan and 1973 Constitution

Bushra Umer

What is a Constitution?

No country could be run even for a second without constitution. In simple words it
can be said that constitution is a law book which includes all the basic principles
and guidelines to run the day by day affairs of a state. It enlists the powers of all
important office holders of the state. For example, office of the President, Prime
Minister, Chief Ministers and Chief Justice etc. It also discusses the roles of the
different institutions in the state's affairs for instance, Parliament, Executive and
Judiciary. Similarly, there are chapters regarding fundamental rights and principles
of policy which are included in the constitution.

Background:

The present constitution of Pakistan was promulgated in 1973 however it was not
the first constitution of Pakistan. Pakistan experimented with two constitutions
before 1973. At the time of the inception of Pakistan in 1947 Pakistan adopted the
Government of India Act 1935 as an interim constitution with some amendments.

Anyhow, unfortunately the process of the constitution making was very slow due
to the enormous problems faced by the newly born state of Pakistan. Issues like the
representation in the Parliament, division of powers between center and provinces
and the national language issues were the some key hurdles in the way of the
constitution making.

The First Constitution of Pakistan of 1956:

On March, 23 the first constitution of Pakistan was came into force. It included
234 articles. This constitution provided the Parliamentary system with the major
powers vested in the office of the Prime Minister whereas the President was was
only the ceremonial head of the state.

The Islamic Clauses of the Constitution of 1956:

The constitution of 1956 had some Islamic clauses in it which are dealt in the brief
way below!

1. The official name of Pakistan was declared as Islamic Republic of Pakistan.

2. It was made compulsory for the President to be a Muslim.
3. No law repugnant to the tenants of Islam could be enacted by the Parliament.

Other Clauses of the Constitution of 1956:

1. This constitution declared both Urdu and Bengali as the national languages
of Pakistan.
2. It introduced the representation in the Parliament on the basis of the
Principle of Parity between the two wings i-e East and West Pakistan.
3. Under this constitution Parliament was uni-cameral consisted on one house
which was called as National Assembly. Total seats of National Assembly
were 310, 300 general seats and 10 seats for the women quota which were
divided equally between the two wings 155 for East Pakistan and 155 for
West Pakistan.
4. At that time in 1956 all provinces of West Pakistan like Punjab, Sind,
Balochistan and Khyber Pakhtunkha were amalgamated in one unit which
was called as West Pakistan. So, at the time of the promulgation of first
constitution, Pakistan had two provinces i-e East Pakistan and West
Pakistan. The capital of East Pakistan was Dhaka. East Pakistan had a large
territory and less population while there was a large population with less
territory as compared to East Pakistan and the capital city of West Pakistan
was Lahore.
However, the constitution of 1956 remained in force only for two and a half
years and in October, 1958 Pakistan experienced the first martial law under
General Ayub Khan. Ayub Khan abrogated the constitution of 1956.
Provisional Constitutional Order (PCO):
General Ayub Khan introduced Provisional Constitutional Order (PCO),
PCO is a very short form of constitution. It includes some important clauses
to run the affairs of the state. It is often given by the martial law
governments for the time till the next constitution comes into force or the
previous one is restored.
Second Constitution of Pakistan of 1962:
This constitution was promulgated in June, 1962. It consisted of 250 articles.
It was prepared by the constitutional commission set up by Ayub Khan. The
constitutional commission set up by Ayub Khan included the important
ministers of Ayub’s government. For example, the Foreign Minister Zulfiqar
Ali Bhutto and Law Minister Manzoor Qadir. This commission prepared the
constitution according to the wishes of Ayub Khan. This was the reason that
this constitution was called as a brain child of Ayub Khan by many
constitutional experts.
Some Important Clauses of the Constitution of 1962:
1. The constitution of 1962 rejected the notion of Parliamentary system and
introduced the Presidential system in Pakistan. So, according to this
constitution all powers were lay in the office of the President and there
was no office of Prime Minister in this constitution.
2. Initially the word Islamic was dropped from the official name of the state
but later on under the immense pressure from masses the word Islamic
was restored and Pakistan was declared as the Islamic Republic of
Pakistan once again.
However, this constitution also did not live so long and in March, 1969
Pakistan again went under the martial law for the second time. General
Yahya Khan took over the control and abrogated the constitution of 1962.
So with Ayub Khan this constitution also went out from the political
scene of Pakistan.
Legal Framework Order (LFO):
General Yahya Khan also did the same like his predecessor and
introduced military constitution. Anyhow this time the military
constitution PCO was named as Legal Framework Order (LFO). Under
LFO, one unit was abolished and provinces of West Pakistan were
restored.
General Elections of 1970:
General Yahya Khan also announced the first General Elections of
Pakistan in 1970 on the basis of one person one vote under adult
franchise. The age limit for the voter was 21 years which has been
reduced to 18 years at present. These elections gave the drastic results
and Pakistan was split into two wings. East Pakistan was led by Awami
League and West Pakistan was led by Pakistan’s Peoples Party.
Thus this political crisis turned into a civil war and later on into a full-
fledged war. This ultimately resulted into the dismemberment of Pakistan
and finally the creation of Bangladesh.
Later on Yahya Khan stepped down and handed over the power to Z.A
Bhutto who became the first Civilian Martial Law Administrator.
The Third Constitution of Pakistan of 1973:
Bhutto speeded up the constitution making process and with the
consensus of all parties which were present in the Parliament, 1973
constitution was made and it was promulgated on August 14, 1973. This
constitution included 280 articles and it remained operational 1973 till
today.
Salient Features of 1973 Constitutions:
The salient features of 1973 constitution are described in detail under the
following headings!
1. Parliamentary System:
This constitution introduced a parliamentary system with a strong
Prime Minister and weak President.
2. Office of the Prime Minister:
Prime Minister should be from the majority party in the Parliament.
The minimum age for the Prime Minister is 25 years in this
constitution. He is the actual head of the state that enjoys the real
powers. However he could be removed by a vote of no confidence.
3. Office of the President:
President should be a Muslim not less than the age of 45 years.
National Assembly, Senate and Provincial Assemblies constitute the
Electoral College for the elections of the President. It means that only
the members of these institutions are eligible to vote for the President.
President enjoys ceremonial powers under this constitution and he is
bound to act according to the advice of the Prime Minister. He also
has the power to grant pardon.
 President could be removed from his office through a resolution of the
Parliament supported by 2/3rd members. This method is called
impeachment.

4. Bi-Cameral Legislature:
This constitution first time introduced the bi-cameral legislature in
Pakistan which includes lower house i-e National Assembly and upper
house i-e Senate.
(i) National Assembly and its Composition:
The minimum age for the National Assembly members is 25 years
elected on the basis of population. The tenure of National Assembly is
5 years. The province having more population occupies more seats in
National Assembly while that having less population occupies fewer
seats in the National Assembly through direct elections.
Total seats-----------------------342
General seats-------------------272
Women quota-------------------60
Minorities------------------------10
(ii) Senate and its Composition:
The minimum age for the members of the Senate is 30 years.
All provinces have equal representation in the Senate. Its
members are elected through indirect elections for tenure of 6
years. Members of the Provincial assemblies vote for the
Senators.
Total seats----------------------100
Each province-----------------22
 Capital--------------------------4 (1-technocrate, 1-women quota,
2 general)
FATA--------------------------8 (all are general)
(iii) Break up of Provincial Seats:
Total seats---------------------22
General------------------------14
Women quota----------------4
Technocrats-----------------4

However now there has been made an inclusion for the minorities.

Minorities-------------------4

Hence now the total seats of senate are 104.

5. The Parliament:
The Parliament enjoys all legislative powers and it has control over
executive. It can also dismiss the Prime Minister through a vote of no
confidence. It is necessary for all legislation that it is passed through
both the houses i-e National Assembly and Senate and after that with
the signature of President counter signed by Prime Minister it
becomes the law of the land.
6. Federation of Pakistan:
1973 constitution declared Pakistan a Federal state with four
provinces, capital and FATA. For the division of powers between
center and provinces there are two lists of subjects which are given in
the constitution.
(i) Central List:
 It enlists all the subjects which are exclusively under the control
of center. For example, defense, foreign affairs, currency and
communication etc.
(ii) Concurrent List:
It has the list of those subjects on which center and provinces
both can legislate but in the case of disagreement the central
law will prevail. This list includes health, education, industries,
agriculture etc.

The residuary powers however, are vested with the provinces.

7. Provincial Governments:
According to 1973 constitution provinces have their own governments
headed by Chief Ministers. The size of the Provincial Assemblies
varies according to the population.
Punjab-------------------------371
Sind----------------------------168
KPK---------------------------124
Baluchistan------------------65
Provinces also have the office of the governor but the real powers lye
with Chief Ministers and the governor is only ceremonial head.
8. Fundamental Rights:
These are provided in the constitution and are protected by the courts.
For example, right to life, right to vote, right to speech, right to
movement, right to marriage, right to make agreement etc.
If someone feels that his fundamental rights are being violated he can
go to the court to seek protection. So these are justifiable.
9. Principles of Policy:
 These include all basic principles which are necessary for the progress
of the state and the betterment of its people. Namely Islamic way of
life, promotion of local government institutions, full participation of
women in national life, promotion of social justice, eradication of
social evils and promotion of economic wellbeing of people.
These principles are guidelines for legislature in the law making
process but they are not justifiable. These are only the
recommendations which are attached with the resources available at
the disposal of the government.
10. Judiciary:
According to 1973 constitution Pakistan has a multi-tiered judicial
system.
(i) District Level:
At district level there are Session and Civil courts. Session
courts hear the criminal cases like murder, terrorism, abduction
etc. On the other hand the civil courts hear the cases regarding
civil and family matters e.g divorce, inheritance, division of
property etc.
(ii) Provincial Level:
At provincial level the highest court is the High court one for
each province like Sind High court, Punjab High court,
Baluchistan High court etc. In addition one is for the capital i-e
Islamabad High court. So these are five in total.
(iii) State Level:
At state level the highest court is the Supreme Court of Pakistan
headed by the Chief Justice of Pakistan. The Supreme court of
 Pakistan has its jurisdiction over the matters between provinces
and between provinces and center.
It also hears the appeals against the decision of High court
which is called as appealed jurisdiction.
Supreme Court also enjoys the so motto action that means it can
take any matter to its jurisdiction which is of the concern of the
state and is of public importance.
(iv) Supreme Judicial Council:
This constitution also provided the method of disqualification
of judges from their offices. For this purpose there was set up
an institution named Supreme Judicial Council. It includes 5
members which are as follows!
Chief Justice of Pakistan,
2 senior judges of Supreme Court
2 senior Chief Justices of High Court
This institution decides the complaints about misconduct of
judges and they enjoy the power of disqualifying any judge
from his job on the grounds of misconduct and corruption.
11. Council of Common Interests:
This constitution introduced a new institution under the title of
Council of Common Interests. It includes Chief Ministers of all
provinces and an equal number of federal ministers appointed by
Prime Minister. So in total these are 8 in numbers.
It mainly deals with the economic disputes and issues like water
distribution issue etc between provinces and suggests the remedies for
them.
12. National Finance Commission (NFC):
This is also a new innovation in the constitution of 1973. This
commission consists of federal finance ministers of all provinces. So
the total members of NFC are 5 in number i-e 4 provincial finance
ministers and one federal finance minister.
This commission gives the advice about the collection and
redistribution of revenues between the center and provinces which is
mostly divided on the basis of population.
However the disputes remain unsolved and deadlock occurs because
each province claims the right of getting more revenue distribution on
the basis of different reasons. For example, backwardness regarding
Baluchistan, terrorism regarding KPK, more tax paying regarding
Sind due to Karachi and more population is regarding Punjab.
13. Language:
Urdu is made the national language while English is declared as the
official language. However 15 years’ time i-e (1973-1988) was fixed
to make efforts to make Urdu as an official language along with
English.
In 1988 when this limit of 15 years was completed this issue was
taken into the court by the federation which requested for more time.
So, the issue remained pending in the Supreme Court till 2015.
Anyhow now the Supreme court has given its final verdict in this case
and Urdu has been introduced as the official language of the state.
14. Islamic Clauses of 1973 Constitution:

Although first two constitutions also had some Islamic clauses but the
ratio of Islamic clauses in 1973 constitution was much higher as
compared to the first two constitutions of Pakistan. These are as
under!

I. The official name of Pakistan was declared as Islamic Republic

of Pakistan.
II. For the first time under this constitution Islam was declared as
the official religion of Pakistan.
III. President should be a Muslim, no non-Muslim could become
the President of Pakistan.
IV. Prime Minister should also be a Muslim and no non-Muslim
could become the Prime Minister of Pakistan. This clause was
not present in the previous constitutions of Pakistan.
V. This constitution introduced a new institution Islamic
Ideological Council consisting of ulemas from all the sects like
brailvi, deobandi, shia etc. This institution is an advisory body
which gives its advises to the Parliament regarding legislation
that either it is according to the Islamic principles or not.
VI. No law should be made by the Parliament which is repugnant to
the tenants of Islamic.
15. Amendments in the Constitution:
Amendment means to add any clause in the constitution, to remove
any clause from the constitution or to alter any clause of the
constitution. 2/3rd members of the Parliament are required to make any
amendment. From 1973 till date there are made 21 amendments in the
constitution of Pakistan time by time and some of them have a great
significance which are mentioned below in detail.
I. 1st Amendment:
Year of this amendment was 1974 and the nature of the
amendment was that it removed all clauses regarding East
Pakistan from the constitution because in the same year we
accepted Bangladesh as a separate independent state.
II. 2nd Amendment:
The year of this amendment was again 1974 and the nature of it
was that under this amendment the definition of a Muslim was
inserted in the constitution. It stated that anyone who beliefs in
the oneness of Allah Almighty and finality of Prophet hood is
called a Muslim and if someone believes on any other prophet
after Prophet Muhammad (SAW) is called a non-Muslim.
So, under this amendment the Qadianis were declared non-
Muslims.
III. 8th Amendment:
It was introduced in 1985. It was made in the constitution in Zi
ul Haq’s regime. It increased the powers of the President and
gave him powers to dissolve the Parliament and remove the
Prime Minister under article 582b.
IV. 13th Amendment:
Year of this amendment was 1997. This amendment did reverse
the 8th amendment under Nawaz Sharif government and
resumed the original powers of Prime Minister while president
remained ceremonial head.
V. 17th Amendment:
 Year of this amendment was 2002 under Pervez Musharraf’s
government. It again increased the powers of the President and
allowed General Musharraf to remain President of Pakistan in
uniform.
VI. 18th Amendment:
Year of this amendment was 2008. This amendment restored
the constitution of 1973 in its original form with powerful
Prime Minister and weak President. It also changed the name of
NWFP to Khyber Pakhtunkha KPK.
VII. 21st Amendment:
It was promulgated in the year 2015 under PML-N government.
It allowed the establishment of the military courts for the time
of two years to have speedy trial of terrorism related offensives.