TOPIC

Constitutional
Development in Pakistan

WHAT IS CONSTITUTION?

Constitution is a set of laws/principles may be

written or unwritten on which a country is
acknowledged to be governed.
The system of fundamental laws and
principles that prescribes the nature,
functions, and limits of a government or
another institution.
Constitution is the fundamental law of the
land and it is from this source that all the
laws spring.
body of rules which regulates the system of
government within a state.

CONT..

In Muslim states, particularly Pakistan, laws

are not derived from the constitution but
from the Almighty Allah who has revealed
them in his book and which have been
interpreted and explained by Holy Prophet
Mohammad (PBUH) through his sayings.
Conduct and actual practice. For practical
purpose we can assume that laws which are
not repugnant to the holy Quran and
Sunnah have to be framed under the
authority of the constitution and cannot be
antagonistic to its command and spirit.

FORMS OF CONSTITUTION

Written

Unwritten

Partly written

KINDS OF CONSTITUTION

Federal and unitary constitutions

Under a federal constitution there is a scheme of
distribution of powers between the central and local
units which are to a certain extent independent within
their own territorial limits. The central government has
its own sphere of operation of its laws, while the
federating units are governed by their own laws. No one
is subordinate nor are acts as an agent of the other, e.g.
the constitution of Switzerland, Australia and India.
In the unitary constitution the legislature of the whole
country is the supreme law making body which may
permit other legislatures to exist subordinates to it.
Sweden, New Zealand, France, have unitary
constitutions.

MONARCHICAL( AUTOCRATIC )
CONSTITUTIONS

Constitutions are sometimes classified into

republican and |monarchical. There is
difference between popular or democratic
government as opposed to an autocracy or
dictatorship which established absolutism
of the executive. It is difficult to find today
even one solitary example of the latter
type of the constitution. A republican
constitution on the other hand illustrates
almost every system of government from
democracy to dictatorship.

CONVENTIONAL

The English constitution is based largely

upon rules of practice, or convention. Many
of the rules of the English constitutional
government possess merely a conventional
character. This is shown by the fact that no
legal proceedings can be taken for a breach
of their established terms, since they are
merely matters of practice. The
conventions of the constitution are in the
last resort founded upon the law of the
land; and they have their sanction in the
force of law.

UNITARY, FLEXIBLE & RIGID

The English constitution involves one central

government which pervades the whole
country.
In flexible constitution every law of every
description can legally be changed with the
same ease and in the same manner by one
and the same body.
A rigid constitution on the other hand is one
under which certain laws cannot be changed
in the same manner as ordinary laws. They
can be altered or amended by the special
machinery provided in the constitution itself.

RULES TO INTERPRET A CONSTITUTION:

The constitution is fundamental or organic or

supreme law standing on a somewhat higher
position than the other laws of the country.
The constitution is the source from which all
governmental power emanates and it defines its
scope and ambit so that each functionary should
act within his respective sphere.
The courts are components of the constitution;
they derive their powers and jurisdictions from
the constitution and must confine themselves
within the limits set by the constitution.

RULES TO INTERPRET A
CONSTITUTION:

Under a constitution prescribing a system where there is a

tracheotomy of sovereign powers the judicial power must
from the very nature of things is vested in a judiciary.
Thus the judiciary does claim and has always claimed that
it has the right to interpret the constitution and to say as
to what a particular provision of the constitution means or
does not mean even if it is a provision seeking to oust its
own jurisdiction.
In the latter case an ouster of jurisdiction is not to be
readily inferred, because, the consistent rule is that
provisions seeking to oust the jurisdiction of superior
courts, even by a constitutional provision, are to be
construed strictly with a pronounced learning against
ouster.

RULES TO INTERPRET A
CONSTITUTION:

It is not, however, the function of the judiciary to

legislate or to question the wisdom of the law giver if
the law has been competently made without
transgressing the limitations of the constitution. If a
law has been competently made the judiciary cannot
refuse to enforce it even if the result be to nullify its
own decisions.
The law-giver has also very right to change, emend or
clarify the law if the judiciary has found that the
language used conveyed by the law-giver.
The constitution has to be construed like other
document reading it as a whole and giving to every
part therefore a meaning consistent with the other
provisions of the constitution.

ISLAMIC POINT OF VIEW ABOUT

CONSTITUTION

The first Muslim constitution was

promulgated by the holy prophet of Islam
Mohammad (pbuh) when he migrated to
madina and foundation was laid for the
government of a city state. This constitution
was framed and put into effect with the full
consensus of not only the followers of the
prophet Mohammad (pbuh) but also had the
concurrence of the Jews and other nonconverts. The constitution thus framed gave
the details of the rights and duties of the
ruler and the ruled.

ISLAMIC POINT OF VIEW ABOUT

CONSTITUTION

The characteristic of Muslim administration had

been that the people including the rulers were
subject to shariat and it was enforced with
greater force of equity, justice and good
conscience in the case of those who did not
embrace the faith of Islam. Such notions as the
king can do no wrong, the king cannot be tried
in his own court, act of state and privilege
etc, are unknown to Islamic jurisprudence. Even
the first four rightly guided caliphs had great
respect for the law and would humbly appear
before the Qazi if ever such an occasion arose.

ISLAMIC POINT OF VIEW ABOUT

CONSTITUTION

Muslim theologians and jurists believe in the

supremacy of the law as laid down in the
holy Quran and interpreted by Sunnah and
hold it to be eternal and immutable. This law
was therefore the actual sovereign in Muslim
lands. Sovereignty, says the Holy Quran,
belongs to almighty Allah alone and the
authority to be exercised by the state is
therefore a sacred trust on behalf of Allah
and must be exercised within the limits
prescribed by Him.

CONSTITUTIONAL HISTORY OF
PAKISTAN

Minto-Marley Reforms 1909:

The Act of 1909 enlarged the size of Legislative Council.
It was provided that the imperial Legislative Council shall
consist of 37 official and 32 non- 0fficial members.
It was decided that there would be no official majority in
the provincial Legislative Councils but such majority was
considered essential in the Central Legislature.
The principle of territorial representation was not
accepted. Representation by classes and benefit was
considered to be the only practical method of embodying
the elective principle in the constitution of the Indian
Legislative Council. The Act provided for separate or
extraordinary electorates for the due representation of
the different communities, classes and benefit.

MINTO-MARLEY REFORMS 1909

The functions of the Legislative Councils were

increased
The members were given the right of asking
question and supplementary questions for the
purpose of further elucidating any point.
The members were given the power to move
resolutions in the Councils.
In the provinces, Landlords, district Boards and
Municipalities and Chambers of Commerce were to
select members.
Muslims were given separate representation.
Muslim members of the legislation were elected by
the Muslims themselves.

ACT OF 1919

The Act provided that the Secretary of State for

India was to be paid out of British revenues.
The Secretary of State continued to possess and
perform the duty of superintendence,
direction, and control upon the affairs of India.
The Governor-General of India was obliged to
carry out the orders of the Secretary of State.
The Act set up a bicameral legislature at the
centre in place of the imperial Council
consisting of one house. The two Houses were
called Central Legislative Assembly and the
Council of State.

ACT OF 1919

Direct elections were provided for both

houses of the Central Legislative though the
franchise was very restricted.
The duration of the term for the Central
Legislative Assembly was three years, and
for the Council of State five years, which
could be extended by the Governor-General.
The Central Legislature had the power to
make laws for all of British India, for Indian
subjects wherever they might be, and for all
persons employed in the defense forces

ACT OF 1919

The Governor-General could issue an

Ordinance for a period of six months which
had the same force and effect as an Act of
the Central Legislature. He had the power
of veto over the Bills passed by the Central
Legislature.
The Central Budget was presented before
the Central Legislature in the form of
demands for grants.

THE GOVERNMENT OF INDIA ACT 1935:

The acceptance of an All India Federation.

The introduction of partial responsibility in
the form of diarchy at the Centre.
The grant of autonomy to the provinces.
Safeguards, reservations, special
responsibilities, overriding Powers, etc.in the
hands of the Governors and the governorGeneral.
Creation of a Federal Court, Federal Railway
authority, the reserve Bank of India, public
service Commission for the Federation and
provinces.

BASIC PURPOSES OF THE ACT

There were three basic purposes of the

Act:Establishment of a Federation.
Provincial autonomy with parliamentary
Government.
The separation of Burma from India

PROVISIONS

Provincial Autonomy
All India Federation
Diarchy at the Centre:
Safeguards:
Rigid Constitution

CONSTITUTION 0F 1956

Pakistan was to be federal republic based on Islamic

Ideology.
A detailed and comprehensive list of fundamental rights
with an Independent Judiciary was provided in the
constitution.
The system of the parliamentary form of government
was adopted both at the Centre and in the provinces.
There was distribution of powers between the Centre
and the provinces.
The constitution provided for Pakistan, wherein equality
between East and West wings had been maintained.
For the distribution of subjects between the centre and
the provinces, three lists of subject had been drawn up.

CONSTITUTION 0F 1956

There was a special procedure to be adopted for the

amendment of the constitution, yet it was the least
rigid constitution. It was reasonably flexible.
It had provided for two National languages Urdu for
the West Pakistan and Bengali for the East Pakistan.
Instead of double citizenship, one citizenship
system was provided for the Federation of Pakistan.
The constitution was silent as to be method of
conducting elections both for the Central and the
Provincial legislatures.
And finally, there were the Islamic characters of the
constitution.

ISLAMIC PROVISIONS OF THE

1956 CONSTITUTION

The name of the country will be Islamic

republic of Pakistan.
The preamble of the constitution embodied
the sovereignty of God Almighty.
The Head of the State shall be a Muslim.
Islamic Advisory Council shall be set up.
No Law detrimental to Islam shall be
enacted

CONSTITUTION OF 1962

Title of the State will be Islamic Republic of Pakistan.

A Powerful President who was responsible for administration
and affairs of the state. He should be a Muslim, no less than
40 years of age, should be capable to be a member of NA. He
would be elected through not direct elections for a time of
five years. If he has held office for more than 8 years, he
could look for reelection with the support of the NA and the
PAs. National Assembly was given the power to charge the
president, however it was difficult to achieve. President
could dissolve the NA but in that case he must seek reelection.
President was the central point of all the Executive,
Legislative and Judicial powers. Cabinet was responsible to
him. All key appointments were to be made by President. He
could issue Ordinances. He could also announce State of
Emergency in the country.

CONSTITUTION OF 1962

NA was consisted of one house on the basis of

principle of parity between two wings of the country.
There were 150 seats plus 6 seats were reserved for
women. All were elected indirectly. For the
membership minimum age limit was 25 years.
NA had all the powers of law making but law was to be
finally ratified by the president. President could sign,
reject or return the bill.
Financial Powers of NA were limited. Only new
expenses could be voted. NA could not reject join
Fund List and Recurring Expenditure.
There were two provinces of the federation: East
Pakistan and West Pakistan. Only one list of subjects,
i.e. the Central list was given in the constitution.

CONSTITUTION OF 1962

Governors were head of the provinces and govern the

province with his cabinet. Provincial governments
were directly under the control of President. There
was a strong center with a Powerful President. He
had enough powers to manage provincial affairs. In
case of emergency powers Central government could
take direct control of the province.
Principles of Policy
National solidarity would be observed.
Interests of backward people would be looked after.
Opportunities for participation in national life.
Education and well being of people.
Islam would be implemented in day to day life.

CONSTITUTION OF 1973

Parliamentary System
President:
Parliament with two houses
Federal System
Provincial Structure:
Principles of Policy:
Fundamental Rights:
Islamic Provisions:
National Language:
Judiciary:
Rigid

AMENDMENT OF CONSTITUTION

A bill to amendment the constitution shall create in the

national Assembly and when the Bill has been passed by the
votes of not less than two-thirds of the total membership of
Assembly it shall be transferred to the senate.
If a Bill is passed by the senate with amendments it shall be
reconsidered by the National Assembly; and if the Bill as
amended by the Senate is passed by the Assembly by the
votes of not less than two-thirds of the total membership of
the Assembly, it shall be presented to the President for the
assent.
If the Bill is passed by the Senate by a majority of the total
membership of the Senate it shall be presented to the
President for assent.
If the Bill is not passed by the Senate within ninety days
from the day of its receipt the Bill shall be deemed to have
been rejected by the senate.

AMENDMENT OF CONSTITUTION

The President shall assent to the Bill within seven

days of the presentation of the Bill to him, and if
he fails to do so he shall be deemed to have
assented thereto at the expiration of that period.
When the President has assented to or is deemed
to have assented to the Bill, the Bill shall become
Act of Parliament and the Constitution shall stand
amended in accordance with the terms thereof.
A bill to amend the Constitution which would have
the effect of altering the limits of a Province shall
not be passed by the National Assembly of that
Province passed by the votes of not less than twothirds of the total membership of that Assembly.

CONCLUSION

The constitutional history of Pakistan is a reflection of

all the peculiarities and contradictions of its social,
economic and political development since
independence for more than a quarter of the century.
The struggle over particular formulations in various
drafts of the Constitution which went on in the
legislative bodies was often an expression of the clash
between the vital interests of the main social groups in
Pakistan.
It is not surprising therefore that the struggle over
many constitutional issues (the state language, from of
elections, division of powers between the Federation
and the Provinces, etc.) went on for years, leading to
bloody clashes in which thousands of people were
victims and often precipitating acute political crises.

CONCLUSION

The constitution of 1973 was an expression

of the balance of class forces established
after the political crises of 1971 and the
collapse of the military dictatorship.
The present Constitution of Pakistan is
characterized by such fundamental principles
as a parliamentary republican system, federal
state structure, and proclamation of
democracy, freedom, equality, tolerance and
other bourgeois-democratic freedoms, and
the attainment of social justice as the
supreme aim of the state.