THE CONSTITUTION MAKING IN PAKISTAN

THE INDEPENDENCE ACT:

On 15th July 1947 the Indian Independence Act was passed. The Act stated that from 15 th August, British India
would be partitioned into two dominion states – India and Pakistan. Each state would have complete freedom to
pass any law it wished. The Government of India Act 1935 would be the provisional constitution until the states
devised their own.

AFTER THE BIRTH OF A NATION

CONSTITUTIONAL DEVELOPMENT 1947 TO 1956

The modified Government of India Act (1935) became the Interim Constitution of Pakistan in 1947. The
Constituent Assembly was given the task of framing the Constitution of Pakistan.

THE CONSTITUENT ASSEMBLY:

Pakistan's first Constituent Assembly came into being on 26 th July 1947 and its inaugural session was held on
10th August 1947. On 12th March 1949, the Constituent Assembly assumed the future Constitution had to be
formulated. The Assembly also appointed Objectives Resolution, enumerating the ideals on which the on the
same date a Basic Principle Committee had to work out the principles on which the Constitution was to be
drafted.

OBJECTIVES RESOLUTION:
The Objectives Resolution was a resolution adopted on 12 th March 1949 by the Constituent Assembly of
Pakistan. The resolution proposed by the Prime Minister Liaquat Ali Khan proclaimed that the future
constitution of Pakistan would not be modeled entirely on a European pattern, but on the ideology and
democratic faith of Islam.

It declared:

i. The constitution should observe the principle of democracy, freedom, equality, tolerance, and social
justice as laid down by Islam.

ii. Muslims would be able to lead their lives according to Islamic principles.

iii. Other religious groups should be able to practice their religion freely.

iv. Minorities and the poor would be legally protected from social injustice.

v. All fundamental human rights should be guaranteed.

vi. The legal system should be independent of government.

It was targeted by much criticism:

 East Pakistan had a much larger population than West Pakistan and resented the idea of equal
representation in the National Assembly. The East Pakistanis also resented having Urdu as the official
language, at the expense of Bengali.

 Provincial politicians objected to the power being given to the Head of State and to the Federal
Government.
  Religious groups complained that the constitution was not sufficiently Islamic. Religious Scholar
Maulana Maududi was disappointed with the fact that it did not produce any positive results.
According to him, it was such a rain which was neither preceded by a gathering of clouds, nor was it
followed by vegetation. Prime Minister Liaquat Ali Khan decided that since there was so much
criticism of the proposals they should be given further consideration. His untimely death meant that
constitutional change had to wait until a new leader was found and had time to settle in.

CONSTITUTIONAL MATTERS:
The Basic Principles Committee (BPC) consisting of 24 members was made to work for the constitution. The
various sub-committees on Federal and provincial duties, Franchise, Judiciary, and Fundamental Rights started
working. Board of Talimat-e-Islamia was also set to look for advice on the religious matters.

BASIC PRINCIPLES COMMITTEE (FIRST DRAFT) – 28 T H SEPTEMBER 1950:

The Objectives Resolution was to be built-in in the Constitution as the order principles. Bicameral Legislature
would be set up. The Upper House: (House of Units) would have equal representation for the units, consisting
of 100 members. The Lower House: (House of People) will be on the basis of Population, consisting of 400
members. Both Houses will enjoy equal powers. The Head of State would be elected by joint session for five
years (two times only). President had the powers of emergency proclamation, official appointments. The
President was not responsible to give answers to anyone. He could be a Muslim or a Non-Muslim. He would be
assisted by the Prime Minister (PM) and Cabinet. Parliament can change him by 2/3 majority. Nevertheless, he
was given the power to break the constitution if need be. The Cabinet was answerable to both the Houses. Urdu
would be the national language.

This report was severely criticized. The religious group objects that the report contained nothing related to
Islam. This report was also criticized strongly by S.C. Chattopadyaya and East Pakistan: the crux of criticism
was related to underrepresentation in the central legislature and the proposal for a strong center with vast powers
on financial matters; East Pakistan was given equal number of seats in Upper House, the same as West Pakistan.
Thus it reduced the principle of majority and turned East Pakistan into a minority. Moreover, the interim report
was preposterous for the East Pakistan since it had Urdu as national language and Bengali was nowhere in the
constitutional arena.

BASIC PRINCIPLES COMMITTEE REPORT (SECOND DRAFT) – 22 DECEMBER 1952

This revised Report suggested:

i. The Head of State must be Muslim.

ii. There should be a House of Units with 60 members from East Pakistan and 60 from West Pakistan.
The House of People should have 400 members with 200 elected from each wing.
iii. Religious minorities would have representatives at National and Provincial levels.
iv. The Cabinet was to be responsible to the National Assembly, not the Head of State.
v. The Head of State would choose a committee of Islamic specialists to ensure that all legislation
conformed to Islamic law.
vi. The official language should be settled by the Assembly.

Like the first report this was also criticized, but this time criticism arose from Punjab which considered the
federal formula to be defective. They demanded equal representation for various units in lower house and equal
power for both Houses. The Punjab members in the Basic Principles Committee and the Federal Cabinet
disliked the formula because they felt East Pakistan would easily dominate West Pakistan which had been
divided into nine units. As yet, Pakistan had no official language, although Urdu had been suggested under the
Quaid and had much government support.
Due to the political crisis, on 17th April 1953 (date according to Nigel Kelly) Ghulam Muhammad dismissed
Khawaja Nazimuddin and three other members of the Cabinet. Ghulam Muhammad said that:

‘I have been driven to the conclusion that the Cabinet of Khawaja Nazimuddin has proved entirely inadequate
to grapple with the difficulties facing the country.’

BOGRA FORMULA:

Mohammad Ali Bogra presented his package popularly known as the 'Bogra Formula'. The Bogra Formula was
discussed in detail and was approved by the Assembly. On 21 st September 1954, while Ghulam Muhammad was
out of country, Bogra persuaded the Assembly to pass laws limiting the powers of the Governor-General by
saying:

 That all his ministers, including the Prime Minister, must be member of the Assembly.
 That the Assembly had to approve the Cabinet,
 That the Governor-General had to take the advice of the ministers.

But before it could be written down in the form of constitution, the Constituent Assembly was dissolved by the
then Governor-General, Ghulam Muhammad, on 24th October 1954.

CONSTITUENT ASSEMBLY DISSOLUTION:

On 24th October 1954, Governor-General dissolved the Constituent Assembly that was challenged in the Sindh
High Court by Maulvi Tamizuddin. Sindh High court declared the dissolution illegal but the Federal Court
upheld the Governor-General action and asked for setting up an elected Constituent Assembly. Quoting from a
speech by Ghulam Muhammad on 24th October 1945 when he dissolved the Assembly, “The constitutional
machinery has broken down… The Constituent Assembly has lost the confidence of the people and can no
longer function.” Part of the decision made by the Sindh High Court in February 1955 was, “The Constituent
Assembly is a sovereign body. The Governor-General has no power of any kind to dissolve it.”

SECOND CONSTITUENT ASSEMBLY, JUNE-JULY 1955:

Ghulam Muhammad called a Convention on 10 th May 1955. All its members were to be elected indirectly (by
the provincial assemblies). In this way, the 2nd Constituent Assembly came into existence during the months of
June-July, 1955.

ONE UNIT SCHEME, OCTOBER 1955:

The presence of different provinces in the West Pakistan had complicated the issue of the West Pakistan’s
representation in the Constituent Assembly. In November 1954, Bogra had proposed that the four provinces and
10 princely states within Pakistan should be joined together to form West Pakistan. On 5 th October 1955 (date
according to Nigel Kelly), Iskander Mirza passed an order unifying all of West Pakistan in what became known
as the ‘One Unit Scheme’. Now both the parts had become two units and could be addressed equally.

THE CONSTITUTION MAKING:

One Unit scheme helped the task of constitution making to achieve successfully. The previous committee’s
work helped the new Assembly that completed its work and presented it in the 2nd Constituent Assembly on 9 th
January 1956. With certain amendments, it was approved on January 29, 1956

On March 23, 1956, it was promulgated as Constitution of Pakistan. With this, Pakistan had finally become an
Islamic Republic.
THE CONSTITUTION OF 1956

Constitution is the collection of those basic principles and laws which explain the rights of the citizens, power of
different departments and their mutual relations. The whole process of constitution making started with the
passing of the objective resolution. The objective resolution which was passed in March 1949 outlined the
basic principles and foundations of the constitution. The principles that had to be kept in mind by the constituent
assembly of Pakistan while framing the constitution.

Chaudhury Muhammad Ali who assumed charge as Prime Minister, his efforts led to the first constitution that
was enforced in the country on March 23, 1956.

The constitution of 1956 is consisted of 234 articles which are divided into 13 parts and 6 schedules. Islamic
character was one of the main features of the constitution. It was provided for the parliamentary form of
government, with a unicameral legislature.

The constitution of 1956 recognized the concept of one unit, and the seats were equally divided between the two
wings of the country. The only house of Parliament, the National Assembly consists of 300 members. The
constitution was offered direct elections under adult franchise. The citizens of Pakistan, who were with
minimum age of 21, were allowed to vote in the elections. Judiciary was to remain independence and Urdu and
Bengali both were accepted as a state language while English was to remain the official Language for the First
25 years. The constitution of 1956 was a written and flexible constitution which advocated the fundamental
rights of the individual such as freedom of speech and expression of assembly and association of movement and
of professions.

ORIGINS OF THE CONSTITUTION:

In 1947, Pakistan gained independence from the United Kingdom or Britain. Under Section 8 of the Indian
Independence Act of 1947, the Government of India Act 1935, with some modifications, was adopted as the
working constitution of Pakistan. But now, since Pakistan had become a sovereign state with free citizens, the
necessity arose for the framing of a Constitution by the elected representatives of the citizens of the state. As a
result, the first Constituent Assembly was brought into existence under the Independence Act and two separate
functions were entrusted to it:

 To produce an actual and complete Constitution for the country, and

 Until that Constitution came into effect, to function as a Federal Legislative Assembly or Parliament.

The first substantial step towards the framing of a Constitution for Pakistan was put into effect by the
Constituent Assembly on 12th of March, 1949, when it passed a resolution on the “Aims and Objectives of the
Constitution”, which was popularly referred to as the Objectives Resolution. It provided a blueprint for the
foundation of the Constitution and explained the broad outline of its core structure. A debate took place on this
resolution for five days. The leading members of the Government and many non-Muslim members, especially
hailing from the East Bengal region, participated as prominent speakers.

After nine long years of efforts, Pakistan was finally successful in framing a proper Constitution. It was adopted
by the Constituent Assembly on 29th February, 1956, and it was enforced upon the state 23rd March, 1956,
proclaiming Pakistan to be an Islamic republic.

CONSTITUTIONAL HISTORY OF PAKISTAN:

History bears the evidence that, The British government accepted the principle of partition of British India on
3rd June, 1947 in order to create two independent states i.e. Pakistan and India. The British Parliament passed
the Indian independence Act on July 18, 1947, and the new sovereign state of Pakistan came into being on the
14th of August 1947.

Every newly established sovereign state must first frame a constitution of a body of fundamental laws to run the
government and to ensure the enforcement of law. However, in case of Pakistan the new constitution took more
than eight years due to inevitable and unpredictable political situations.

a) EARLY GOVERNMENTS AND LEADERS IN PAKISTAN:

After achieving independence in 1947 Pakistan had the chance to form their first governmental head. The first
government of Pakistan was headed by Prime Minister Liaquat Ali Khan and the seaport of Karachi was
declared as its capital. Muhammad Ali Jinnah was considered the founder of Pakistan and hailed as the Quaid-i-
Azam (Great Leader) became head of state as governor general.

b) CHALLENGES AND TROUBLES:

There raised a great challenge to reform and to organize the economic, political and judicial structures,
bureaucracy and armed forces of the country. The newly formed governments had to resettle the Mohajirs
(Muslim refugees from India) and faced various riots, criticism and complexities to enact the distribution in
balancing of power in provincial and central governments. Before the government could surmount these
difficulties, Jinnah died in September 1948 shockingly.

C) REJECTING THE NON-ALIGNED FOREIGN POLICY:

Pakistan’s non-aligned early foreign policy indicated no formal commitment to either the United States or the
Union of Soviet Socialist Republics (USSR) in the Cold War. However, Liaquat established formal friendly
relations with the United States and in 1953 Pakistan aligned itself with the US block which ensured its military
and economic assistance.

D)POLITICAL UNREST:

After the assassination of Liaquat in 1951, Khwaja Nazimuddin, an East Pakistani became prime minister.
Ghulam Muhammad became governor-general. Nazimuddin attempted to limit the powers of the governor-
general through amendments to the Government of India Act of 1935, under which Pakistan was governed
pending the adoption of a constitution. Ghulam Muhammad dismissed Nazimuddin and replaced him with
Muhammad Ali Bogra, Pakistan’s ambassador to the United States, who subsequently was elected president of
the Muslim League.

E) PROVINCIAL ELECTION OF 1954:

In the 1954 provincial elections in East Pakistan, the Muslim League was routed by the United Front coalition.
The Awami League dominated the coalition However, Ghulam Muhammad prevented the United Front from
taking power in the provincial legislature by imposing governor`s rule,In such critical condition Ghulam
Muhammad intentionally declared a state of emergency and dissolved the assembly to avoid the threat of
curbing governor-general’s power.

F) WEST PAKISTAN ESTABLISHED AS ONE UNIT [1955]:

In order to abolish the differences between the two unequal east and West Pakistan regions, the Government of
Pakistan decided that all the four provinces and states of West Pakistan should be merged into one unit. To this
end, Prime Minister Muhammad Ali made the first official announcement on November 22, 1954. The result of
the new bill was to unify these various units into one province to be known as West Pakistan. Dr. Khan Sahib
was appointed as the first Chief Minister of the One Unit, while Mushtaq Ahmad Gurmani was appointed as the
first Governor of West Pakistan, however, the establishment of one unit policy was not free from criticism. The
bill was likely to reduce the administrative expenditure but it was claimed that one unit of West Pakistan would
eliminate the curse of provincial prejudices. It also emerged as a threat to the phase of the Pakistan constitution
to some extends.

G) THE NEW CONSTITUENT ASSEMBLY:

The new constituent assembly enacted a bill, which became effective in October 1955, integrating the four West
Pakistani provinces into one political and administrative unit, known as the One Unit. This change was designed
to give West Pakistan parity with the more populous East Pakistan in the national legislature. The assembly also
produced Pakistan’s first constitution, which was adopted on March 2, 1956.

PROVISIONS AND SALIENT FEATURES:

The Constitution of 1956 was very lengthy and detailed; it contained 234 articles in total, divided into thirteen
sections and six schedules. The Constitution provided for a federal system, keeping the principle of parity
between East and West Pakistan. The performance of the Federal Legislature was to be similar to that of the
British Parliament. The Constitution called for a parliamentary form of government, where real executive
authority was vested in a cabinet, which would be collectively responsible to the legislature. A declaration was
made by the Constitution which stated that there will be only one house of parliament known as the National
Assembly and equality between the two wings of Pakistan was upheld in it.

Some key salient features of the Constitution are:

 Written Constitution - This is a written and lengthy document.

 Rigid Constitution - The constitution could only be amended through a process requiring the amendment to
be passed by at least a two-thirds majority of the parliament and authentication by the President.

 Islamic Republic of Pakistan - The name of the country was adopted as the Islamic Republic of Pakistan.

 Objectives Resolution - The objective resolution was included as permeable by the constitution.

 Federal System - The constitution provides for a federal system in the country. Powers was divided between
the centre and the provinces. The subjects were divided into three lists; The Federal List, The Provincial List,
and the Concurrent List.

 Unicameral Legislature - The legislature would consist of a single house. Both the wings of the country
were given representation in the National Assembly. The National Assembly consisted of 300 members. 150
members were drawn from each wing.

 Parliamentary System - a parliamentary system was adopted, according to it the president was the head of
state and the Prime Minister the head of government.

 The President - required to be a Muslim of at least forty years of age. The tenure of his office was five years.
In case of internal or external danger he could declare a state of emergency in the country. He was authorized to
appoint the Governors, the Judges of the Supreme Court, Auditor General and the Advocate General.

 The Prime Minister - He was to be the leader of the Parliamentary group and was thus indirectly elected by
the people. He could choose his cabinet from the members of the National Assembly; the cabinet was
answerable to the Assembly.

 Provincial Autonomy - Curtailed in the constitution to a great extent.

 Islamic Law - no law would be passed against the teachings of the Quran and Sunnah.

 Free Judiciary - An independent judiciary in the country. A Supreme Court interpreted the constitution,
advised the state whenever required, and decided the issues whenever required.  Fundamental Rights -
included freedom of movement, freedom of speech and expression, freedom to choose profession and freedom
to profess religion. Right to life, liberty, and property.

 Language - Urdu & Bengali were made national languages.

THE CONSTITUTION OF 1962:

After the military coup of 1958, Ayub Khan waited for some time with the intention of paving public opinion in
his favor. A legislative commission was established under the leadership of Justice Shahaab-ud-din. The
commission forwarded a report on 6 th May 1961. Justice Manzoor Qadir designed and drafted the entire
constitution. Ayub Khan with the help of a presidential ordinance enacted the new constitution on 8th June 1962.

It had the following salient features:-

  It was in written form and had the information about the state institutions and their mutual relations.
 The constitution was not passed by the consent of the elected representatives of the people. It was the
creation or brain-child of a single person.
 The constitution was president friendly; making amendments was easy only if supported and endorsed
by the president or it was a very lengthy and difficult job. For making any amendment, the
2/3rd majority of the assembly had to pass the bill and then had to send it to the president. If president
did not take up any objection for thirty days, the amendment was considered valid. However, the
president might disapprove or send back the resolution with certain alterations. In that case, it was
needed to gain the consent of 3/4th majority of assembly. The president had to give consent in ten days
or had to propagate it for the opinion of Basic Democrats. In that case, the opinion of the B.D’S was
considered final.
 Apparently, it was a federal system of government with East Pakistan and West Pakistan as its units.
The constitution contained the list of only federal authorities, the rest were given to the federating
units. The center had the authority to intervene in the provincial matters if considered necessary.
 Unlike previous constitutions, the Indian Act 1935 and constitution of 1956, it was presidential in its
nature with all the executive powers resting with the president. He was the constitution head of
government and state.
 It was a unicameral system of government with only one house. The members of the National
Assembly were elected by the basic democrats.
 The judiciary was kept independent to the extent of theory. All the judges of the High courts had to
be selected and appointed by the president with the advice of the chief justice. But president was not
bound to the opinion or wishes of the Chief Justice.
 The constitution guaranteed the basic human rights for all the citizens of Pakistan without any
discrimination of cast, creed and color.

The constitution of 1962 was a one man show. It was designed for a single man. Apparently it gave many rights
and securities to the people but actually it deprived the people from all kinds of political rights and their
representation in the legislation.

THE CONSTITUTION OF PAKISTAN 1973

The constitution of Pakistan 1973 was enforced on 14 th Aug 1973. It consists of 280 articles and 7 schedules
with Objective Resolution forming the preamble of the constitution beside 20 amendments which have been
made since then. It is regarded as the landmark accomplishment of Bhutto’s era as it was a unanimous act of the
parliament with complete consensus of all the political parties. However, many twists and turns have been
witnessed ever since its enforcement but still it is the supreme law of land and the sacrosanct instrument which
reigns supreme in governance of the state.

The constitution 1956 and 1962 failed to provide the aspired political stability to the country. Both proved short
lived and were replaced with the martial laws in the country. But the subsequent years after imposition of
martial law were highly tumultuous costing Pakistan its eastern wing. The leftover country was first governed
by a unique proposition of civilian Chief Martial administrator till the interim constitution was adopted by the
national assembly. The assembly constituted a committee headed by Hafiz-ud-Din Pirzada to formulate the
permanent constitution for Pakistan. The committee did its work in shortest possible time and the national
assembly adopted the constitution on 10th April unanimously.

The constitution declared Pakistan an Islamic republic laying down condition for head of state and head of the
government to be Muslims. However, 8th amendment has made the Objective Resolution a substantial part of
the constitution by incorporating it as article 2A according to which all laws made in Pakistan should be in
accordance with the injunctions of Quran and Sunnah. Its Islamic character is further reinforced by accepting the
sovereignty of Almighty Allah, Islam to be the state religion and by promising the Muslims to enable them to
order their lives in accordance with the fundamental principles of Islam. It also provides a long list of
fundamental rights as well directive principles of state policy. Besides, the constitution envisages a federation of
Pakistan and affords a parliamentary form of government leaving president with only ceremonious functions.
The federal legislature is bicameral i.e. senate the upper house and national assembly the lower house.
Moreover, the constitution provides an independent judiciary, provincial autonomy to the federating units, a
council of common interests, a council of Islamic ideology etc.

The subsequent voyage of the constitution however was not smooth. It has been suspended or held in abeyance
twice. Amendments made by military dictators have changed spirit of original constitution. So far, 20
amendments have been made most of which have been brought about not for the fulfillment of compulsions and
needs of changing times but to accomplish the selfish ends. This experimentation has achieved nothing but
instability in the country that has blocked the process of establishing and strengthening the democratic system in
Pakistan.

SALIENT FEATURES OF THE CONSTITUTION OF PAKISTAN 1973

Following are the salient features of the constitution of Pakistan 1973

 Written Constitution

Constitution of Pakistan 1973 is a written constitution. It comprises of 280 Articles. It also contains 6
schedules, which has been divided into 12 parts.

 Rigid Constitution

The constitution of Pakistan 1973 is rigid because amendment procedure is not easy. This constitution
provides that 2/3 majority of votes of members National Assembly and Senate, and assent of President of
Pakistan are necessary for its amendment.

 State Religion

The constitution of Pakistan 1973 announces that Islam would be state religion.

 National Language and Official Language

In accordance with Article 251 of the present constitution Urdu has been declared as National Language of
Pakistan but the official language is English.

 Federal Form of Government

Constitution of Pakistan 1973 provide federal form of government consisting of four provinces of the
central government of Pakistan.

 Parliamentary form of Government

Parliamentary form of government has been provided for the government in the constitution.

 Direct Elections

Constitution of Pakistan 1973 has provided method of direct elections to elect members of National
Assembly and Provincial Assembly.

 Bi-Cameral Legislature

The Federal Legislature is bi-cameral consisting two houses. Senate (upper house) and National Assembly
(lower House).

 Preamble

Preamble means an introductory part of statue; it is not the part of the constitution. It is stated in it than
sovereignty over entire universe belongs to Almighty Allah.

Holding of Referendum

The president of Pakistan is authorized to order for holding a referendum on any issue of national
importance.

 Single citizenship

The constitution of Pakistan 1973 provides single citizenship.

 Independence of Judiciary

An Independent Judiciary has been provided in 1973 constitution. Judiciary safeguards the fundamental
rights of the people of Pakistan.

 Rights of Minorities

Rights of Minorities have been protected in the 1973 constitution.

 High Treason
 The abrogation of the constitution through unconstitutional means is high treason. It cannot be abrogated by
the use of force.

Final Analysis

To conclude that the 1973 constitution of Islamic Republic of Pakistan is a democratic state, parliamentary with
bicameral legislature in its nature. It is the constitution of elected people. All major political parties of Pakistan
unanimously accepted it. Minorities also have safeguard and fundamental rights in such constitution.