Chapter # 2.

Constitutional Development in Pakistan

2.1 Concept of Constitution

2.1.1 define the term constitution;
A constitution is a written document that outlines the fundamental principles
and rules by which a country or organization is governed. It establishes the
framework for the distribution of powers among the different branches of
government, defines the rights and freedoms of citizens, and provides a set of
rules and procedures for decision-making and governance. Constitutions often
serve as a country's supreme law and provide the basis for the legal system. In
many countries, the constitution is the highest source of authority and all
other laws and regulations must comply with its provisions.

2.1.2 describe the importance of constitution for a state;

The constitution plays a vital role in the governance and stability of a
state. Here are some of the key reasons why the constitution is important:

* Establishes the framework for governance: The constitution provides a

framework for how a state is governed, including the distribution of powers
among different branches of government, the rights and freedoms of citizens,
and the procedures for making and enforcing laws.
*

* Limits government power: The constitution can serve as a check on the power
of the government by setting limits on what it can and cannot do. This helps to
prevent abuses of power and protects individual rights and freedoms.
*

* Provides stability and predictability: By setting out clear rules and

procedures, the constitution provides stability and predictability in the
functioning of the government. This helps to ensure that decisions are made in
a consistent and transparent manner, which in turn promotes trust in the
government and the rule of law.
*

* Encourages participation and accountability: The constitution can also help

to promote participation and accountability by establishing democratic
principles and mechanisms, such as elections, the separation of powers, and the
protection of civil liberties. This helps to ensure that the government is
responsive to the needs and interests of its citizens.
*

* Reflects national values and aspirations: Finally, the constitution can

serve as a reflection of a state's national values and aspirations, providing a
shared sense of identity and purpose. It can help to unite people around common
ideals and principles, which in turn can promote social cohesion and national
unity.
2.2 Constitutional History of Pakistan

2.2.1:1 discuss the key ideas of the speech delivered by Mohammad Ali Jinnah
to the Constituent Assembly on 11 August 1947
Jinnah's speech to the Constituent Assembly on 11 August 1947:

* Acknowledgment of the significance of the day as a milestone in the history

of India
* Emphasis on the importance of democracy and the rule of law in the new
state of Pakistan
* Commitment to safeguarding the rights and interests of all communities in
Pakistan, regardless of religion or caste
* Rejection of theocracy and the idea of a state based on a particular
religion
* Call for unity and cooperation among all citizens of Pakistan to build a
prosperous and progressive nation
* Appreciation of the contributions made by non-Muslims in the struggle for
independence and the need to treat them as equal citizens
* Warning against corruption and the need for good governance
* Urging the Constituent Assembly to focus on drafting a constitution that
reflects the values of freedom, equality, and justice.
2.2.2 identify the key features of the Objectives Resolution 1949;
the key features of the Objectives Resolution 1949:

* The sovereignty of Allah over the entire universe was declared as the basis
of the state and the Constitution of Pakistan.
* The state was to be democratic, with the people of Pakistan having the
right to elect their representatives to the government.
* Federalism was recognized as an essential feature of the Constitution, with
the central and provincial governments sharing power.
* The Constitution was to ensure the protection of the fundamental rights of
all citizens, including minorities.
* The principles of social justice and equal opportunity were to guide the
state's policies, with the aim of ensuring the welfare of its citizens.
* Non-discrimination on the basis of religion, race, caste, or gender was to
be upheld.
* The Lahore Resolution of 1940 was acknowledged as the basis of the creation
of Pakistan.
* Pakistan's foreign policy was to be guided by Islamic principles, with the
aim of promoting peace and cooperation with other nations.

2.2.3 discuss the significance of Objectives Resolution 1949 in the

constitutional development of Pakistan;

* The Objectives Resolution provided the ideological foundation for the

Constitution of Pakistan.
* It established that Pakistan was to be a democratic, federal state based on
Islamic principles, with the sovereignty of Allah as the ultimate authority.
* The Resolution recognized the importance of protecting the fundamental
rights of all citizens, including minorities, and established the principle of
non-discrimination.
* It laid out the basic framework for the Constitution of Pakistan, including
the principles of federalism, democracy, and the rule of law.
* The Objectives Resolution played a key role in shaping the political
discourse in Pakistan, and has been cited in numerous court cases and legal
debates over the years.

2.2.4 discuss the factors which delayed the constitution-making process in the
initial years of Pakistan;

* Political instability: Frequent changes in government and military coups

created an unstable political environment.
* Lack of consensus: Political leaders had differing views on the role of
Islam in the state and distribution of power between the center and provinces.
* Conflict with India: The conflict with India over the disputed territory of
Kashmir diverted attention and resources away from the constitution-making
process.
* Technical issues: Lack of resources, skilled personnel and inadequate
infrastructure caused technical difficulties in drafting and implementing a new
constitution.
 * Inexperience: Newly formed institutions lacked the necessary experience and
expertise to create a functioning constitution.

2.2.5 describe the salient features of 1956 Constitution.

* The Constitution declared Pakistan to be an Islamic Republic and provided

for a federal system of government with a bicameral legislature.
* It guaranteed fundamental rights, including freedom of speech, religion,
and the press, as well as the right to a fair trial.
* The Constitution established the President of Pakistan as the head of state
and the Prime Minister as the head of government.
* It established an independent judiciary, with the Supreme Court and High
Courts having the power of judicial review.
* The Constitution recognized Islam as the state religion and provided for
Islamic provisions in laws, but also allowed for the freedom of religion for
all citizens.
* It abolished the separate electorates system and provided for joint
electorates, giving all citizens equal voting rights.
* The Constitution recognized the rights of minorities, ensuring their
representation in the legislature and protection of their cultural, linguistic,
and religious identity.
* The Constitution also provided for the establishment of an independent
election commission and the formation of a national planning commission to
oversee economic development.
2.2.6 discuss the reasons that led to the failure of 1956 Constitution;

* Political instability: Frequent changes in government and military coups

created an unstable political environment, making it difficult to establish a
stable constitutional framework.
*

* Lack of consensus: Political leaders had differing views on the role of

Islam in the state and distribution of power between the center and provinces,
resulting in a lack of consensus on key issues.
*

* Implementation challenges: The Constitution faced challenges in

implementation due to inadequate infrastructure, lack of resources, and the
inexperience of newly-formed institutions.
*

* Conflict with India: The conflict with India over the disputed territory of
Kashmir diverted attention and resources away from the implementation of the
Constitution.
*

* Language issue: The imposition of Urdu as the national language and its
promotion at the expense of other regional languages led to protests and
agitation in East Pakistan.
*

* Military intervention: The military intervention in politics and governance

undermined the democratic process and led to the abrogation of the Constitution
in 1958.

2.2.7 describe the salient features of 1962 Constitution;

 * The Constitution established a presidential system of government with the
President as both the head of state and head of government.
* It provided for a unicameral legislature, known as the National Assembly,
with members elected on a non-party basis.
* The Constitution granted extensive powers to the President, including the
power to dissolve the National Assembly and appoint the Prime Minister and
Cabinet.
* It recognized Islam as the state religion but did not make it the only
source of law.
* The Constitution imposed restrictions on the freedom of speech, press, and
assembly, and allowed for preventive detention without trial.
* It abolished provincial governments and replaced them with centrally
appointed governors.
* The Constitution provided for the establishment of a Supreme Court, High
Courts, and District Courts as an independent judiciary with the power of
judicial review.
* It recognized the rights of minorities, ensuring their representation in
the legislature and protection of their cultural, linguistic, and religious
identity.
* The Constitution allowed for the formation of a National Security Council,
chaired by the President, to oversee defense and security matters.

2.2.8 discuss the reasons that led to the failure of 1962 Constitution;

* Lack of public support: The Constitution was imposed through a military

coup and lacked popular support, which made it vulnerable to criticism and
opposition.
*

* Concentration of power: The Constitution concentrated extensive powers in

the hands of the President, leaving little room for democratic governance and
accountability.
*

* Suppression of dissent: The Constitution imposed restrictions on the

freedom of speech, press, and assembly, and allowed for preventive detention
without trial, which led to the suppression of dissent and opposition.
*

* Political polarization: The non-party-based system of elections created

political polarization and lack of representation, resulting in the exclusion
of some political groups and furthering discontent.
*

* Separation of East and West Pakistan: The Constitution did not address the
growing grievances of East Pakistanis, leading to resentment and demands for
greater autonomy.
*

* Economic challenges: The Constitution failed to address economic

challenges, including poverty, unemployment, and income inequality, which
created discontent and political unrest.
*

* Military intervention: The military intervention in politics and governance

undermined the democratic process and led to the abrogation of the Constitution
in 1969.
2.2.9 discuss the salient features of 1973 Constitution;

* The Constitution established a federal parliamentary system of government

with a President as the ceremonial head of state and a Prime Minister as the
head of government.
* It provided for a bicameral legislature, known as the Majlis-e-Shoora,
consisting of the National Assembly and the Senate.
* The Constitution recognized Islam as the state religion and provided for
the protection of the rights of religious minorities.
* It recognized fundamental rights, including freedom of speech, assembly,
and association, and guaranteed the independence of the judiciary.
* The Constitution recognized the rights of provinces and provided for the
devolution of powers to the local level.
* It established a Council of Islamic Ideology to advise the government on
matters related to Islam and Sharia law.
* The Constitution allowed for the establishment of an Islamic banking system
and prohibited the charging of interest on loans.
* It provided for the establishment of a National Finance Commission to
ensure equitable distribution of financial resources among the federal
government and the provinces.
* The Constitution granted the President certain powers, including the power
to appoint the Chief of Army Staff, but with the advice of the Prime Minister.

2.2.10 compare the three constitutions of Pakistan in terms of their nature

and features;

1947 Constitution:
Nature: Act passed by British India's Legislative AssemblyFeatures: Provided
for a federal parliamentary system with a Governor-General as the head of state
and a Prime Minister as the head of government. Recognized fundamental rights
and provided for the establishment of a bicameral legislature. Did not address
the status of East Pakistan and had a limited scope.
1956 Constitution:
Nature: First Constitution of Pakistan as an independent countryFeatures:
Provided for a federal parliamentary system with a President as the head of
state and a Prime Minister as the head of government. Recognized Islam as the
state religion and provided for the protection of fundamental rights.
Introduced the concept of Basic Democracies, which led to political
polarization and the exclusion of some political groups. Failed to address
regional grievances, which led to its abrogation in 1958.
1973 Constitution:
Nature: Current Constitution of PakistanFeatures: Provides for a federal
parliamentary system with a President as the ceremonial head of state and a
Prime Minister as the head of government. Recognizes Islam as the state
religion and provides for the protection of fundamental rights, including the
independence of the judiciary. Recognizes the rights of provinces and provides
for the devolution of powers to the local level. Establishes a Council of
Islamic Ideology to advise the government on matters related to Islam and
Sharia law.

2.2.11 evaluate the steps taken towards Islamisation in Pakistan with

reference to 1956, 1962 and 1973 Constitutions;
1956 Constitution:

* Islam was declared the state religion, but the Constitution did not provide
any specific guidelines for its implementation.
* The Constitution recognized the rights of religious minorities and provided
for the protection of their fundamental rights.
1962 Constitution:

* Islam was declared the state religion, and the Constitution provided for
the establishment of an Islamic Advisory Council to advise the government on
matters related to Islam.
* The Constitution limited the rights of non-Muslims to hold high government
positions, but it did not impose Islamic laws on them.
* The Constitution did not provide for the protection of fundamental rights
and allowed for the suspension of civil liberties during a state of emergency.
1973 Constitution:

* Islam was declared the state religion, and the Constitution provided for
the establishment of a Council of Islamic Ideology to advise the government on
matters related to Islam and Sharia law.
* The Constitution recognized fundamental rights, including freedom of
religion, and provided for the protection of the rights of religious minorities.
* The Constitution provided for the establishment of an Islamic banking
system and prohibited the charging of interest on loans.
* The Constitution allowed for the imposition of Islamic laws, such as the
Hudood Ordinances, which were criticized for being discriminatory towards women.
*

2.2.12 discuss the fundamental rights given in the Constitution of Pakistan

1973;

* Right to Equality: All citizens are equal before the law and are entitled
to equal protection of the law.
* Right to Freedom: All citizens have the right to freedom of speech,
expression, assembly, association, and movement.
* Right to Information: All citizens have the right to access information in
all matters of public importance.
* Right to Property: All citizens have the right to acquire, hold, and
dispose of property.
* Right to Education: All citizens have the right to education, and the state
shall provide free and compulsory education to all children aged five to
sixteen.
* Right to Religion: All citizens have the right to profess, practice, and
propagate their religion.
* Right to Life and Liberty: All citizens have the right to life and liberty,
and no one shall be deprived of their life or liberty except in accordance with
the law.
* Right to Privacy: All citizens have the right to privacy, and no one shall
be subjected to arbitrary or unlawful interference with their privacy, family,
home, or correspondence.

2.2.13 evaluate the practical implementation of these rights in Pakistan.

The practical implementation of fundamental rights in Pakistan has been a

subject of criticism due to various reasons, including:
 * Lack of awareness: Many citizens are not aware of their fundamental rights
and how to assert them.
*

* Ineffective enforcement: The enforcement of fundamental rights by the

judiciary has been inconsistent, resulting in a lack of accountability for
violations of these rights.
*

* Misuse of power: Law enforcement agencies and government officials often

misuse their power to infringe on citizens' fundamental rights.
*

* Social and cultural barriers: Social and cultural barriers often prevent
citizens from fully exercising their fundamental rights, particularly women,
minorities, and marginalized groups.
*

* Security concerns: In some instances, national security concerns have been

used to justify the restriction of fundamental rights, such as freedom of
speech and expression.