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 Table of Content
Definition and Scopeof constitutional Law, 6

• Basic Constitutional Concepts………………………………………………………… 14

• (Constitutional Conventions, Rule of Law …………………………………………..15,
• Due Process) ……………………………………………………………………………..15,

Constitutional Structures ,Parliamentary……………………………………………………..

17,

• Presidential……………………………………………………………………………….. 23,
• Separation of Powers)…………………………………………………………………..26,

Judiciary (Independence ofJudicial Review,………………………………………………….

33

Theories of Constitutional Interpretation) ……………………………………………………….37

Fundamental Human and Political Rights and Civil Liberties (freedom of speech,
association, assembly, movement and Right to Counsel, life, property, religion, privacy,
self-incrimination, double jeopardy).…………………………………………………………… 48

Principles of Constitutional Law with special reference to United Kingdom………………

49,

• United States of America…………………………………………………………………. 58

• France……………………………………………………………………………………….
61,
• Russia
………………………………………………………………………………………..71,
• China……………………………………………………………………………………….. 76,
• Pakistan……………………………………………………………………………………..
85,
• India………………………………………………………………………………………….
88
• Turkey…………………………………………………………………………………………9
0

Constitutional Histor of
Pakistan:…………………………………………………………………..96

Principles of Constitutional Law of

Pakistan,……………………………………………………96

Salient feature of the Government of India Act, 1935,…………………………………………

104

• Indian Independence Act 1947,

…………………………………………………………..105
• Objectives Resolution 1949,
………………………………………………………………111

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 • Constitutions of 1956 1962 and 1973 Constitution,………………………………….
114
• Abrogation of the Constitutions and the Martial
Laws,…………………………………136
• Legal Framework Order, 1970
……………………………………………………………142,
• The PCO of
1981,…………………………………………………………………………..143
• The RCO of
1985,…………………………………………………………………………..144
• The LFO-
2002,………………………………………………………………………………146
• Amendments in the 1973
Constitution……………………………………………………153

Legal Development:

• Maulvi Tamizuddin Khan v. Federation of Pakistan PLD 1955 Sindh 96…………… 161
• Federation of Pakistan vs. Maulvi Tamizuddin Khan…………………………………. 172
• Reference by the Governor-General PLD 1955 FC 435
………………………………163
• State v. Dosso PLD 1958 SC 533.
………………………………………………………165
• Usif Patel v. Crown PLD 1955 FC 387…………………………………………………. 170
• Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657……………….. 188
• Hakim Khan v. Government of Pakistan PLD 1992 SC 585…………………………..192
• Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ……………………………197
• Benazir Bhutto v. the President of Pakistan PLD 1992 SC 492…………………….. 203
• Khawaja Muhammad Sharif, PLD 1988 Lah. 725 ……………………………………..206
• Federation of Pakistan v. Haji Saifullah Khan PLD 1989 SC 166 ……….……….....210
• Khawaja Ahmad Tariq Rahim PLD 1992 SC 646 ....................................................210
• Benazir Bhutto v. President of Pakistan, PLD 1998 SC 388,....................................212
• Asma Jilani v. Government of the Punjab PLD 1972 SC 139................................... 222
• State v. Zia ur Rehman PLD 1973 SC 49 ................................................................ 390
• Mahmood Khan Achakzai v. Fed. of Pakistan PLD 1997 SC....................................401
• Zafar Ali Shah case, 2000......................................................................................... 413

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Definition and Scopeof Constitutional
Law
Constitutional Law
Constitutional Law, the fundamental law of a state that defines the powers of the state,
constitutes and delineates the organs of government, and limits governmental powers. In
addition to dealing with the organization of state and government, constitutional law also
concerns itself with the relationship between government and citizens, more specifically with
the rights and privileges of the individual vis-à-vis the state.

Scope and Function

Because of its fundamental character, constitutional law is legally superior to other types of
law. Most commonly, constitutional law is laid down in a special, written document or set of
documents, a constitution that is regarded as the supreme law of the land. A constitution
almost always contains a special procedure for amendment in order to prevent facile
alteration.

Separation of Powers
The idea of separation of powers plays an important role in delineating the powers of the
state and the government. Two variants of this theory of politics can be distinguished: one
variant concerns the different branches of government; the other relates to a territorial
division of state power. The first asserts that liberty can be safeguarded only in a political
system in which governmental power is divided into three different functional branches—
legislative, executive, and judicial. Each of these branches is assigned different organs that
are expected to adhere to their own functions. There is, however, one exception to this rule:
under some constitutions the courts (or a special court) are explicitly or implicitly authorized
to review statutes in light of the constitution's mandates.The second variant, called division of
powers, refers to the territorial division of state power, which has been established in most
contemporary states between a central and a local level. In the constitutional system of the
United States (a federal constitutional system), this division of power resulted in a distinction
between the organization of power on a national and a state level. In addition to being
governed by the Constitution of the United States (the federal constitution), each state
adheres to a state constitution in which its official powers are defined. In other constitutional
systems, national government can be divided into a central and a decentralized level (such
as in France, which has a unitary constitution) or between a decentralized level of states or
regions and one central organ with limited powers (such as in Switzerland, which has a
confederate system).

Bills of Rights and Other Sources. Nations that have written constitutions usually also have
an incorporated bill of rights containing basic individual rights, such as freedom of speech
and press, freedom of religion and worship, and freedom of association and assembly,

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among others. These rights aim to protect the individual from state interference. Many
modern constitutions have incorporated other rights as well—such as the right to shelter, to
employment, and to health care—requiring the state to undertake positive action for their
implementation.

The constitutional law of a country is not strictly limited to the rules of the constitution; it also
encompasses statutes concerning the structure and functions of central and local
governments and their relations with the citizens. In addition, it incorporates judicial
decisions (particularly those concerning the interpretation of individual rights and privileges),
constitutional conventions, and political practice. In a number of countries certain provisions
of international treaties to which these states are a party are now considered part of
constitutional law as well.

Constitutional Law versus Statutory Law. Certain features distinguish constitutional law
from ordinary statutory law. First, constitutional law is the fundamental higher law that
governs statutory law. It determines basic matters pertaining to the political system, whereas
statutory law applies these matters to specific categories. Second, constitutional law, or
rather a specific constitution, springs from a distinct source and is enacted or changed by a
special procedure (amendment), either in an extraordinary manner by ordinary bodies or by
extraordinary bodies such as constitutional conventions. Sometimes the final adoption of a
constitution or its amendment requires the approval of the electorate, to whom it is submitted
by referendum. The latter procedure has been and continues to be used in some of the
states of the United States. Some constitutions expressly forbid specific constitutional
provisions from being amended, such as the principle of the liberal-democratic political order
that formed a part of the Federal Republic of Germany's constitution or the republican form
of government that is stipulated by the French constitution.

Types of Constitutional Law

Two main types of constitutional law are found around the world, the determining factor
being whether the constitution is written or unwritten. Although the United Kingdom is
usually cited as the classic example of a state without a written constitution, many other
countries, including Israel, New Zealand, Oman, and Saudi Arabia, do not have a basic
written document. Such countries do, however, have a number of (written) rules pertaining
to the organization of government and the rights of citizens. The standard distinction
between written and unwritten constitutions is therefore of considerable but nevertheless
limited use. Another distinction was introduced by the British legal scholar James Bryce in
1884. He identified flexible constitutions, for which the amending process takes place by
simple majority, and rigid constitutions, which involve a special amending procedure. A
shortcoming of Bryce's typology is, nevertheless, that it does not take into consideration the
fact that constitutions and constitutional law can change not only through formal procedures
but also through judicial interpretation and changes in the relationships among political
institutions.

Unwritten and Written Constitutions. Along with its American counterpart, the British
constitutional system has been considered the cradle of constitutionalism and an extremely
influential model, notably among its former colonies. The sources of British constitutional law

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are threefold: (1) statutes, such as the Magna Carta (1215), the Bill of Rights (1689), and the
Parliament Act (1911); (2) judicial decisions settling aspects of constitutional practice, such
as those concerning the interpretation of rights, among them freedom of speech and of
assembly; and (3) conventions, practices, or rules that derive from political processes. Thus
the principle that a government must resign if defeated on a vote of confidence in the House
of Commons is a constitutional custom.

The 19th-century British constitutional scholar A. V. Dicey distinguished two principles that
underlie the British system: parliamentary sovereignty and the rule of law. The first principle
refers to the rule that Parliament can legislate on any topic and can pass any laws (including
fundamental laws) it sees fit. When laws are passed, the courts must enforce them, which is
to say that judicial review does not exist in the United Kingdom. A number of restraints have
been placed on the British Parliament, however. The second principle of the British
constitutional system is the rule of law. This means that every person, including public
officials, will be judged according to the ordinary law of the land. A complex body of
administrative law has developed in the United Kingdom even though it lacks a regular
system of administrative courts, such as that present in France.

The second major type of constitutional law concerns all those states that have adopted a
formal written constitution. In this case, too, a further distinction can be made based on the
status of the judiciary. In some systems, constitutions explicitly grant the judiciary the power
to strike down legislation that is inconsistent with the constitution. In others the judiciary may
interpret the constitution in such a way as to invest itself with the power of constitutional
review. An example of the first category is the German system; those of the United States
and Norway exemplify the second category.

Constitutional Review.

In all systems of constitutional law, the importance of the judiciary in delineating the powers
of governments and the scope of individual rights and privileges cannot be overestimated.
Three principal models of constitutional review can be identified. In the first, the "diffuse" or
"decentralized" model, all the judges and courts of a given country are authorized to act as
constitutional judges. Thus when a dispute that depends on a particular law is brought before
them, the courts are permitted to consider the validity of the law and validate or reject it. The
most well-known example of a diffuse system of judicial review is that of the United States.
Itsprovisions were largely copied by the majority of the former states of the British
Commonwealth: Canada, India, Australia, and Ireland. It was also adopted in Japan and,
formally, at least, in a number of Latin American nations.

The second, the "concentrated" or "centralized" model, is characterized by the presence of

only a single organ to act as constitutional judge. This institution can be either a supreme
judicial court or a special constitutional court organized outside of the ordinary judicial
hierarchy. The model finds its origins in Austria and was adopted in many continental
European states, such as Germany, Italy, France, Spain, and Belgium.

A further distinction that should be made when discussing constitutional review concerns the
method of review. It is possible to distinguish between abstract (ex ante) and concrete (ex

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post) review of laws. Concrete review takes place when a lawsuit or some other kind of
litigation is brought before the court, as in the case of the U.S. system, in which the Supreme
Court hears specific cases. Abstract review, on the other hand, takes place without a specific
case or controversy. Such review is the rule in France and occurs to a limited extent in
Germany.

Finally, a third type of system distinguishable on the basis of constitutional review is that in
which the judiciary is not authorized (more or less explicitly) to review statutes in light of the
constitution. Both the Netherlands and Finland have followed this pattern. Since 1953,
however, the Dutch courts have been authorized to set aside any constitutional-law provision
that may be deemed incompatible with a rule of international law.

History of Constitutional Law

Whether written or unwritten, based primarily on political or territorial divisions, or

encompassing a diffuse or concentrated model of constitutional review, constitutional law
has played a fundamental role in the development of political systems throughout history.

Ancient History.

The roots of modern Western constitutional law stretch back to ancient Greece. Plato
originally introduced the notion that government must be guided by law (Nomo’s). At the
same time, he insisted that lawmaking power should be concentrated in the hands of
philosophers, men wiser than ordinary people and therefore more capable of ruling. Aristotle
distinguished between a nation's basic governmental structure (politeia), its laws, and its
changeable policies. His notion of a mixed constitution, a balance of power among
monarchy, aristocracy, and democracy, foreshadowed the modern doctrine of separation of
powers. Somewhat later, during Roman times, the notion of the equality of all human beings
came to the fore, despite the widespread practice of slavery under the Roman Empire.

Middle Ages and the Era of Absolutism.

Building on the ancient heritage, medieval thinkers developed new theories of governance.
The king was considered the supreme source of government in the realm. All matters of
government were under his control. Unless it fell beyond the physical boundaries of his
jurisdiction, or encroached on religious dogma, no edict or rule could be considered
illegitimate. The only means to keep the king in check was through resistance. This situation
did not change significantly until the advent of the Renaissance and the Reformation.
Whereas the king in feudal society was regarded as primus inter pares (the first among
equals) and had, to some extent, to respect the rights and privileges of his vassals, gradually
the monarchy freed itself from these restraints. By about 1600 the era of absolute monarchy
had dawned, with even more unfettered control being enjoyed by the crown.

The Enlightenment.

The next phase in the development of constitutional law occurred in the 17th and 18th
centuries, or the Age of Reason (or Enlightenment). During these period important new
elements of constitutional law emerged.First among such new elements were the theories of

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natural law, which evolved as a reaction to the legal principles of medieval society. The
English political philosophers Thomas Hobbes (1588–1679) and John Locke (1632–1704)
based their theories on the notion that, before the emergence of state and civil society,
human beings lived in a hypothetical state of nature. In this state each human being was a
potential threat to others. Locke described the rise of civil society as being the result of a
social contract among citizenswho agreed to turn over their natural rights to the state in
exchange for protection of life, liberty, and property. The notion of natural law became
political reality in the constitutions of the British colonies in America. The first of these, the
constitution of Virginia of 1776, contained a catalog of natural, inalienable rights. Later,
individual rights and privileges became the cornerstone of virtually all constitutions.

This point serves to introduce a second key trend in constitutional law. During and following
the Revolutionary period (1776–1799), many political systems, following the model of the
United States, began to lay down the basic structure of government in a special document, a
constitution that was assigned a higher status than ordinary law.

The foundation for the doctrine of separation of powers was laid in the 18th century. The
French political philosopher Montesquieu (1689–1755) formulated the doctrine by
distinguishing three different branches of government—the legislative, executive, and judicial
departments—and assigning each to a separate individual or group. This doctrine was
institutionalized in the American and French constitutions of the 18th century and, to this
day, remains one of the central ideas of constitutional law.

Contemporary Developments.

The development of constitutional law, and of individual constitutions, in the 20th century
has been characterized by paradox. On the one hand, constitutions have by now become
universally accepted as a means of laying down the law of the land. On the other hand,
constitutions are no longer exclusively linked to constitutionalism, or the idea of limited
government in service to high principles. Not only do liberal democracies have written
constitutions but so too done authoritarian and one-party systems. In some cases a
constitution serves primarily as a means of legitimizing the existing political order, as in the
case of some Latin American countries. Furthermore, it is not uncommon for discrepancies
to exist between constitutional precepts and their exercise in actual circumstances. The
constitution of the Weimar Republic (1919), which technically was a model of liberal-
democratic principles, proved unfit to prevent the Nazi regime from taking power. Liberal
faith in constitutions ended up severely shaken by this event.

The fall of communism in the 1980s brought a revival of constitutional law, with many
countries in Eastern Europe and former states of the Soviet Union adopting liberal-
democratic constitutions that limited the power of government and, in some cases, restricted
or prohibited the participation of communists. The process of transition did not, however,
come easily, to which many armed conflicts in the region attested.

In Africa, as many countries gained independence from their former colonial overlords,
constitutional developments were initially characterized by a clear commitment to the idea of
constitutionalism and the rule of law. At the same time, however, the notion of limiting the

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power of the state or its sovereign was rejected, both formally and in practice. Recent
developments in Africa have demonstrated a search for adapting European constitutional
principles to African political and social circumstances, but the success of such efforts
remains unclear.

In the United Kingdom one of the major contemporary questions is whether to adopt a
written constitution and enshrine a bill of rights with a system of judicial review. In the United
States, discussion has focused on the position of the Supreme Court as a counter
majoritarian institution within the constitutional system. The question is whether the judiciary
should adhere to a narrow, or strict, interpretation of the Constitution or play a more activist
role. This problem is not exclusively American, however. In many European countries the
growing importance of the judiciary is a hotly contested issue as well, raising the intriguing
question of the politicization of the judiciary or the "judicialization" of politics.

Basic Constitutional Concepts

Constitutional Conventions,
A constitutional convention is an informal and unmodified procedural agreement that is
followed by the institutions of a state. In some states, notably those Commonwealth of
Nations states that follow the Westminster system and whose political systems derive from
British constitutional law, most government functions are guided by constitutional convention
rather than by a formal written constitution. In these states, actual distribution of power may
be markedly different from those the formal constitutional documents describes. In
particular, the formal constitution often confers wide discretionary powers on the head of
state that, in practice, are used only on the advice of the head of government.

Some constitutional conventions operate separate from or alongside written constitutions,

such as in Canada since the constitutional reforms of 1982. Others, notably the United
Kingdom which lack a single overarching constitutional document, unwritten conventions are
still of vital importance in understanding how the state functions. In most states, however,
many old conventions have been replaced or superseded by laws (called codification).

Origins

Constitutional conventions arise when the exercise of a certain type of power, which is not
prohibited by law, arouses such opposition that it becomes impossible, on future occasions,
to engage in further exercises of this power. For example, the constitutional convention that
the Prime Minister of the United Kingdom cannot remain in office without the support of a
majority of votes the House of Commons is derived from an unsuccessful attempt by the
ministry of Robert Peel to govern without the support of a majority in the House, in 1834-
1835.

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Enforceability in the courts:

Constitutional conventions are not, and cannot be, enforced by courts of law. The primary
reason for this, according to the Supreme Court of Canada in its 1981 Patriation Reference,
is that, "They are generally in conflict with the legal rules which they postulate and the courts
may be bound to enforce the legal rules." More precisely, the conventions make certain acts,
which would be permissible under a straightforward reading of the law, impermissible in
practice. The court ruled that this conflict between convention and law means that no
convention, no matter how well-established or universally accepted, can "crystallize" into law,
unless the relevant parliament or legislature enacts a law or constitutional amendment
codifying for a convention at which must specify request and consensus' for enactment. This
principle is regarded as authoritative in a number of other jurisdictions, including the UK.

Some conventions evolve or change over time. For example, before 1918 the British Cabinet
requested a parliamentary dissolution from the monarch, with the Prime Minister conveying
the request. Since 1918, Prime Ministers request dissolutions on their own initiative, and
need not consult members of the Cabinet (although, at the very least, it would be unusual for
the Cabinet not to be aware of the Prime Minister's intention).

However, conventions are rarely ever broken. Unless there is general agreement on the
breach, the person who breaches a convention is often heavily criticized, on occasions
leading to a loss of respect or popular support. It is often said that "conventions are not worth
the paper they are not written on", i.e., they are unenforceable in law because they are not
written down.

Rule of Law,
The doctrine of the rule of law dictates that government must be conducted according to
law. This was first established by British legal theorist AV Dicey.Dicey identified three
essential elements of the British Constitution which were indicative of the rule of
law:Absolute supremacy of regular law as opposed to the influence of arbitrary power;

Equality before the law

The Constitution is a result of the ordinary law of the land.Dicey’s rule of law formula consists
of three classic tenets. The first is that the regular law is supreme over arbitrary and
discretionary powers. ‘[N]o man is punishable ... except for a distinct breach of the law
established in the ordinary legal manner before the ordinary courts of the land.’

Due Process
Due process is the legal requirement that the state must respect all legal rights that are owed
to a person. Due process balances the power of law of the land and protects the individual
person from it. When a government harms a person without following the exact course of the
law, this constitutes a due process violation, which offends the rule of law.

Due process has also been frequently interpreted as limiting laws and legal proceedings (see
substantive due process) so that judges, instead of legislators, may define and guarantee

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fundamental fairness, justice, and liberty. That interpretation has proven controversial.
Analogous to the concepts of natural justice, and procedural justice used in various other
jurisdictions, the interpretation of due process is sometimes expressed as a command that
the government must not be unfair to the people or abuse them physically.

The term is not used in contemporary English law, but two similar concepts are natural
justice, which generally applies only to decisions of administrative agencies and some types
of private bodies like trade unions, and the British constitutional concept of the rule of law as
articulated by A. V. Dicey and others. However, neither concept lines up perfectly with the
American theory of due process, which, as explained below, presently contains many implied
rights not found in either ancient or modern concepts of due process in England. Due
process developed from clause 39 of the Magna Carta in England. When English and
American law gradually diverged, due process was not upheld in England but became
incorporated in the US Constitution.

Constitutional Structures:
Parliamentary:
A parliamentary system is a system of democratic governance of a state in which the
executive branch derives its democratic legitimacy from, and is held accountable to, the
legislature (parliament); the executive and legislative branches are thus interconnected. In a
parliamentary system, the head of state is normally a different person from the head of
government. This is in contrast to a presidential system in a democracy, where the head of
state often is also the head of government, and most importantly, the executive branch does
not derive its democratic legitimacy from the legislature.Countries with parliamentary
systems may be constitutional monarchies, where a monarch is the head of state while the
head of government is almost always a member of the legislature (such as the United
Kingdom, Sweden and Japan), or parliamentary republics, where a mostly ceremonial
president is the head of state while the head of government is regularly from the legislature
(such as Ireland, Germany, India and Italy). In a few parliamentary republics, such as
Botswana, South Africa and Suriname, as well as German states, the head of government is
also head of state, but is elected by and is answerable to the legislature.

A parliamentary system may use bicameralism with two chambers of parliament (or houses):
an elected lower house, and an upper house or Senate which may be appointed or elected
by a different mechanism from the lower house. Another possibility is unicameralism with just
one parliamentary chamber. Scholars of democracy such as Arend Lijphart distinguish two
types of parliamentary democracies: the Westminster and Consensus systems. The Palace
of Westminster in London, United Kingdom. The Westminster system originates from the
British Houses of Parliament. The Reichstag Building in Berlin, Germany. The Consensus
system is used in most of Western European countries.

The Westminster system is usually found in the Commonwealth of Nations. These

parliaments tend to have a more adversarial style of debate and the plenary session of

13
parliament is more important than committees. Some parliaments in this model are elected
using a plurality voting system (first past the post), such as the United Kingdom, Canada, and
India, while others use proportional representation, such as Ireland and New Zealand. The
Australian House of Representatives is elected using instant-runoff voting, while the Senate
is elected using proportional representation through single transferable vote. Regardless of
which system is used, the voting systems tend to allow the voter to vote for a named
candidate rather than a closed list.

The Western European parliamentary model (e.g. Spain, Germany) tends to have a more
consensual debating system, and usually has semi-circular debating chambers. Consensus
systems have more of a tendency to use proportional representation with open party lists
than the Westminster Model legislatures. The committees of these Parliaments tend to be
more important than the plenary chamber. Some West European countries' parliaments (e.g.
in the Netherlands and Sweden) implement the principle of dualism as a form of separation
of powers. In countries using this system, Members of Parliament have to resign their place
in Parliament upon being appointed (or elected) minister. Ministers in those countries usually
actively participate in parliamentary debates, but are not entitled to vote.

Implementations of the parliamentary system can also differ on the manner of how the prime
minister and government are appointed and as to whether the government needs the explicit
approval of the parliament, rather than just the absence of its disapproval. Some countries
such as India also require the prime minister to be a member of the legislature, though in
other countries this only exists as a convention.

The head of state appoints a prime minister, of their personal choice, without reference to a
parliament. While in practice most prime ministers under the Westminster system (including
Australia, Canada, New Zealand, India and the United Kingdom) are the leaders of the largest
party in parliament, technically the appointment of the prime minister is a prerogative
exercised by the monarch, the governor-general, or the president. No parliamentary vote
takes place on who is forming a government, but since parliament can immediately defeat
the government with a motion of no confidence, the head of state is limited by convention to
choosing a candidate who can command the confidence of parliament and has little or no
influence in the decision;

The head of state appoints a prime minister who must gain a vote of confidence within a set
time. Example: Italy, Thailand;

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