Constitution of Pakistan
|Constitution of Pakistan|
|Created||19 April 1973|
|Ratified||14 August 1973|
|Purpose||To replace the Articles of the 1962 Confederation and LFO Order No. 1970|
The Constitution of the Islamic Republic of Pakistan (Urdu: آئین پاکستان), also known as the 1973 Constitution is the supreme law of Pakistan. Drafted by the government of Zulfiqar Ali Bhutto, with additional assistance from the country's opposition parties, it was approved by the Parliament on April 10 and ratified on 14 August 1973.
The Constitution is intended to guide Pakistan's law and its political culture, and system. It identifies the state (its physical existence and its borders), people and their fundamental rights, state's constitutional law and orders, and also the constitutional structure and establishment of the institutions and the country's armed forces. The first three chapters establish the rules, mandate, and separate powers of the three branches of the government: a bicameral legislature; an executive branch governed by the Prime Minister as chief executive; and an apex federal judiciary headed by Supreme Court. The Constitution designates the President of Pakistan as a ceremonial head of state who is to represent the unity of the state. The first six articles of the constitution outline the political system as federal parliamentary republic system; as well as Islam as its state religion.
The Parliament cannot make any laws which may be repugnant or contrary to the Constitution, however the Constitution itself may be amended by a two-thirds majority in both the houses of the bicameral Parliament, unlike the previous legal documents of 1956 and 1962. It has been amended over time, and most recent impulses for political upgrades and reforms has been amended. Although enforced in 1973, Pakistan, however, celebrates the adoption of the constitution on 23 March—when the first set was promulgated in 1956—each and every year as Republic Day.
Origins and historical background
Pakistan was founded in 1947. Before writing a constitution, a Constituent Assembly passed an Objectives Resolution in March 1949 to define the basic directive principles of the new state. A constitution was approved in 1956 but abrogated in 1958 after a military Coup d'état. Pakistan's second constitution was approved in 1962. It granted executive power to the president and abolished the office of the prime minister. It also institutionalized the intervention of military in politics by providing that for twenty years, the president or the defense minister must be a person who had held a rank not lower than that of lieutenant-general in the army. The 1962 constitution was suspended in 1969 and abrogated in 1972.
The 1973 constitution was the first in Pakistan to be framed by elected representatives. Unlike the 1962 constitution it gave Pakistan a parliamentary democracy with executive power concentrated in the office of the prime minister, and the formal head of state—the president—limited to acting on the advice of the prime minister. After another coup in 1977, the constitution was held in abeyance until it was "restored" in 1985 but with an amendment (the Eighth) shifting power from the parliament and Prime Minister to the president. Another Amendment (Seventeenth) in 2004 continued this shift, but in 2010, the Eighteenth amendment reduced presidential powers, returning the government to a parliamentary republic.
Previous legislation as Source
The provisions of the Government of India Act, 1935, had greatly influenced the state and served its legal document until 1956. In 1950, Prime Minister Liaquat Ali Khan author the first annex that would paved a path in drafting of the Constitution. Elected in 1947, the first Constituent Assembly drafted and adopted its first constitution in 1956
Following the adoption of a constitution in India in 1950 invited Pakistan's lawmakers to work on their constitution. Prime Minister Muhammad Ali and his government officials worked with the opposition parties in the country to formulate a constitution for Pakistan.
Finally, the joint work led to the promulgation of the first set of the constitution on 23 March 1956—a day when Pakistan celebrates its Republic Day over the adoption of the constitution. The constitution provided for parliamentary form of government with a unicameral legislature. It officially adopted Pakistan as "Islamic Republic" and the principle of parity was introduced. Its features were:
- Islamic Republic of Pakistan – Official name of the country was adopted
- Objectives Resolution – The objective resolution was included as preamble by the constitution.
- System of government – Parliamentary with a prime minister as head of government.
- Unicameral Legislature – A single house, only National Assembly that would consist of 300 members; 150 members from each East and West Pakistan
- President – Required to be a Muslim and ceremonial head of state. In case of internal or external danger he could declare a state of emergency in the country.
- Islamic law – No law would be passed against the teachings of the Quran and Sunnah.
- Independent Judiciary – The Supreme Court as an apex court – a final arbitrator of all the decisions.
- Fundamental rights included freedoms of movement, speech and, profession and profess religion, right to life, liberty, and property.
- Language – English, Urdu and Bengali were made national languages.
By the constitution, Iskander Mirza assumed the presidency but his constant involvement in national affairs, as opposed to Constitution, dismissed four elected prime ministers in two years. Under public pressure, Mirza upheld the coup d'état in 1958, thus virtually suspending the constitution. Shortly afterwards General Ayub Khan deposed Mirza and declared himself president.
General Ayub Khan appointed a Constitution Commission to draft another part of the constitution under Chief Justice Muhammad Shahabuddin. Submitted its considerations on 6 May 1961, Ayub Khan altered the entire version of the constitution which was entirely different from the one recommended by Chief Justice Muhammad Shahabuddin. It was promulgated on 8 June 1962. Main feature of this set was the introduction of the Presidential system and more consolidated powers to the President. No further changes were carried out to oppose the 1956 document. Its features includes:
- More powers to President of Pakistan.
- Strengthen of the Islamic Ideology Council.<ref name="Nazaria-e-Pakistan, Part II"
1970 Legal Framework Order
President Ayub Khan invited Chief of Army Staff General Yahya Khan to enforce the martial law in country. On assuming the presidency, General Yahya Khan acceded to popular demands by abolishing the one-unit system in West Pakistan and ordered general elections on the principle of one man, one vote.
The military government and President Yahya himself made no efforts to frame a constitution, aside from issuing the extrajudicial order in 1970. In all over the country, the expectations were that a National Assembly would be set up by holding a free and fair election. In order to hold the proposed elections, President Yahya promulgated a Legal Framework Order on 30 March 1970 that also spelled out the fundamental principles of the proposed constitution and the structure and composition of the national and provincial assemblies.
In December 1970, a national-wide general elections were held simultaneously for both the national and five provincial assemblies. The polling results turned were simply disastrous from the standpoint of national unity and demonstrated the failure of national integration. No party enjoyed the full confidence of the people of Pakistan. The nationalist Awami League (AL) secured the mandate of East Pakistan but failed to perform in any four provinces of Pakistan. The socialist Pakistan People’s Party (PPP) under the leadership of Zulfikar Ali Bhutto gained mandate in Punjab and Sind but failed in East Pakistan, NWFP and Balochistan. The general elections truly reflected the ugly political reality: the PPP's mandate in Pakistan and AL mandate in East Pakistan.
1970 constitutional crises
Constitutional crises grew further when AL refused to make concessions over its six points to draft the constitution and instead maintaining that AL had was quiet competent to frame a constitution and to form a central government on its own.
The PPP was not willing to dilute the authority of the federal government in spite of assuring full provincial autonomy for all the provinces of Pakistan. Negotiations on framing the work on constitution were held between January and March 1971 between leaders of PPP, AL, and the military government of Yahya Khan, which turned out to be a failure. Under the LFO, the President Yahya was to decide when the National Assembly was to meet. By 13 February 1971, the President Yahya announced that the National Assembly was to meet at Dhaka on 3 March 1971. By this time the differences between the main parties to the conflict had already crystallized. Over the six point issue, the PPP was convinced that a federation based on six point would lead to a feeble confederation in name only and was part of larger Indian plan to break up the Pakistan. On 14 January, President Yahya announced Mujibur Rahman as the Prime Minister of Pakistan which prompted Zulfikar Ali Bhutto to boycott the National Assembly on 15 February. Talking to the news media, Mujibur Rahman strongly asserted that "Our stand is absolutely clear. The constitution will be framed on the basis of the six points"'.
Such announcement led the PPP to demand the removal of the National Assembly session or opening session to be postponed. The PPP threatened to stage a large scale general strike in all over the country. Under pressured by PPP, President Yahya postponed the National Assembly session on 25 March which came as a shattering disillusionment to the AL and their supporters throughout East Pakistan. It was seen as a betrayal and as proof of the authorities of the Pakistan to deny them the fruits of their electoral victory. This resulted in the outbreak of violence in East Pakistan. The Awami League launched a non-cooperation movement and virtually they controlled the entire province. Due to disturbances in East Pakistan, no National Assembly session was called and the military moved in East Pakistan to control the situation. The civil disobedience movement turned into armed liberation movement backed by the India.
With India successfully intervening in the conflict, the Pakistan military surrender to the Indian military and almost over ~93,000 military personnel were taken as prisoners of war on 16 December 1971. Demoralized, gaining notoriety in the country, and finding himself unable to control the situation, President Yahya ultimately handed over the national power to PPP, of which, Zulfikar Ali Bhutto was sworned in on 20 December 1971 as President and as the (first civilian) Chief Martial Law Administrator.
As Pakistan surrendered to India and Bangladesh being formed in 1971, The PPP formed the government and partially enacted the 1962 constitution. President Zulfikar Ali Bhutto called for the constitutional convention and invited the leaders of the all political parties to meet him on 17 April 1972. Leaders and constitutional experts of the Islamic political parties, conservative parties, socialists and communist parties were delegated to attend the constitutional convention in 1972.
Drafting and ratification
The law experts, constitutional analysts, and country's reputed clergymen worked on formulating the constitution that represents the will and desire of people. Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the "sole and express purpose of revising the 1956 articles." Also, the convention was not limited to the religion, exigencies of government and the preservation of the State; rather it was intended to maintain delicacy in commerce, finances, issue of loans to federation, and Separation of powers. Several key ideas of the philosophy of John Locke and Islamic provisions on civil rights were interchanged in the Constitution.
The Constitution ultimately established the "Bicameral Parliament"– National Assembly as Lower house and Senate as Upper house. It also established the parliamentary form of government with Prime Minister as its head of government; the elected National Assembly genuinely representing the will of the people. The Constitution truly maintained a delicate balance between traditionalists and modernists and reflected heavy compromises on fundamental religious rights in the country. The fundamental rights, freedoms of speech, religion, press, movement, association, thought, and intellectual, life, liberty and property and right to bear arms were introduced in the new Constitution. Islam was declared as the State religion of Pakistan. Geography and border statue of the country was redefined and "Pakistan was to be a Federation of Four Provinces." The Constitution was written in the point of representing the conservative Islam as well as reflecting a heavy compromise over the religious rights and humanism ideas, advocated by the extremist leftists of the PPP.
On 20 October 1972, the draft was revived by all leaders of the political parties and signed the declaration of adopting the Constitution in the National Assembly on 2 February 1973. Ratified unanimously on 19 April 1973, the Constitution came into full effect on 14 August 1973. On the same day, the successful vote of confidence movement in the Parliament endorsed Zulfikar Bhutto as the elected Prime Minister after latter relinquishing the presidency after appointing Fazal-i-Ilahi to that stint.
Contrary to 1956 and 1962 articles, several ideas in the Constitution were new, and guaranteed security of the each citizens of Pakistan. First part of the Constitution introduce the definition of State, the idea of life, liberty and property, individual equality, prohibition of slavery, preservation of languages, right to fair trial, and provided safeguard as to arrest and detention as well as providing safeguards against discrimination in services.
The due process clause of the Constitution was partly based on the British Common law, as many founding fathers of the country and the legal experts had follow the British legal tradition. The fundamental rights are supreme in the Constitution and any law that is ultra vires the fundamental rights can be struck down by the apex courts in their constitutional jurisdiction vested on them under Article 199 of the Constitution.
As contrary to its compatible Constitution of India and Bangladesh, the Constitution reflected a heavy compromise over several issues to maintain a delicate balance of power in country's institutions. First time, the Constitution defines the role of Islam; Pakistan was to be a Federation of Four Provinces and shall be known as the Islamic Republic of Pakistan; introduction of check and balances, separation of powers, and provided the federal system under which the government should governed.
The Constitution established a "Bicameral Parliament" as a legislative authority that consists of the Senate as Upper house (providing equal provincial representation), and National Assembly as Lower house (providing the will and representation of people). The Constitution put stipulation on the eligibility of becoming President and Prime Minister that only "Muslim" of not less than forty-five years of age and is qualified for becoming the Prime Minister. No law repugnant to Islam shall be enacted and the present laws shall also be Islamised. The Constitution also introduced a new institution known as the "Council of Common Interests" consisting of Chief Minister of each four provinces and an equal number of Cabinet ministers of the Government nominated by the Prime Minister. The Council could formulate and regulate the policy in the Part II of the Legislative List. In case of complaint of interference in water supply by any province the Council would look into the complaint.
Another major innovative introduction in the Constitution is the establishment of the National Finance Commission (NFC) consisting of the Provincial and Finance Ministers and other members to advice on distribution of revenues between the federation and the provinces. The Constitution's first parts introduce the Islamic way of life, promotion of local government, full participation of women in national life, protection of minorities, promotion of social and economic well being of the people, and strengthening the bonds with the Muslim world and to work for international peace.
Under the Constitution, the Fundamental Rights include security of person, safeguards as to arrest and detention, prohibition of slavery and forced labour, freedom of movement, freedom of association, freedom of speech, freedom to profess religion and safeguards to religious institutions, non-discrimination in respect of access to public places and in service, preservation of languages, script and culture. The judiciary enjoys full supremacy over the other organs of the state. About national languages, Urdu was declared as national languages, and English as official language; all other languages were preserved by the Constitution.
The individual Articles of the Constitution are grouped together into the following Parts:
- Annex to the Constitution of Pakistan
Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity and policy of the Government.
- First Schedule – Laws exempted from the operation of Article 8(1), 8(2), 8(3b), and 8(4)
- Second Schedule – Election of President" Article 41(3)
- Third Schedule: – Oaths of Office: Article 42, Article 91(5)–92(2), Article 53(2)–61,
- Fourth Schedule: – Legislative Lists
- Fifth Schedule: – Remuneration and Terms and Conditions of Service of Judges: [Article 205]
Unlike the previous documents, the Constitution cannot be changed, instead constitutional amendments are passed; altering its effect. Amendments to the Constitution are made through the Parliament, where a Two-thirds majority and voting is required in both houses for a constitutional amendment to take its effect, in accordance to the Constitution. In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures.
As of 2015, 21 amendments have been introduced to the Constitution. Among the most important of these are the Eighth (1985) and Seventeenth Amendments (2004), which changed the government from a parliamentary system to a semi-presidential system. However, in 2010 the Eighteenth Amendment reversed these expansions of presidential powers, returning the government to a parliamentary republic, and also defined any attempt to subvert, abrogate, or suspend the constitution as an act of high treason.
Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
And whereas it is the will of the people of Pakistan to establish an order :-
Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;
Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
Therein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;
Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
Wherein the independence of the judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity :
Now, therefore, we, the people of Pakistan,
Cognisant of our responsibility before Almighty Allah and men;
Cognisant of the sacrifices made by the people in the cause of Pakistan;
Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;
Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;
Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.
Comparison with previous sources
With regard to provincial rights the 1973 constitution was in fact the most centralised of Pakistan's various constitutions. The Government of India Act of 1935, which Pakistan adopted as its first working constitution, granted the federal government 96 items of power. The 1956 constitution reduced that number to 49, and this was retained in the 1962 constitution. In 1973, however, it was then enlarged to 114.
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- Article 199(1)–199(5b) in the Part VII: Chapter 3: Chapter 3: The High Courts of the Constitution of Pakistan
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- Article 1(1)–1(2) in Part I: Introductory of the Constitution of Pakistan
- Article 1(3) in Part I: Introductory of the Constitution of Pakistan
- Article 50(1)–89(3b) in Part III: Chapter 2: Majlis-e-Shoora (Parliament) of the Constitution of Pakistan
- Article 41(1)–41(2) of Part III:Chapter 1: The President of the Constitution of Pakistan
- Article 91(3) in Part III: Chapter 3: The Federal Government of the Constitution of Pakistan
- Article 227(1) in the Part IX: Islamic Provisions of the Constitution of Pakistan
- Articles 153–159(5) of Part V:Chapter 3: Special Provisions of the Constitution of Pakistan
- Article 160–160(5) in Part VI:Chapter 1: Finance of the Constitution of Pakistan
- Article 251–251(3) in Part XII: Chapter 4: General in the Constitution of Pakistan
- Article 227(1)–227(3) in Part IX: Islamic Provisions of the Constitution of Pakistan
- Article 228(1)–228(6) in Part IX: Islamic Provisions of the Constitution of Pakistan
- Part I: Introductory of the Constitution of Pakistan
- Part II Part II: Fundamental Rights and Principles of Policy of the Constitution of Pakistan
- Part III: The Federation of Pakistan of the Constitution of Pakistan
- Part IV: Provinces of the Constitution of Pakistan
- Part V: Relations between Federation and Provinces of the Constitution of Pakistan
- Part VI: Finance, Property, Contracts and Suit of the Constitution of Pakistan
- Part VII: The Judicature of the Constitution of Pakistan
- Part VIII: The Elections of the Constitution of Pakistan
- Part IX: Islamic Provisions of the Constitution of Pakistan
- Part X: Emergency Provisions of the Constitution of Pakistan
- Part XI: Amendment of Constitution of the Constitution of Pakistan
- Part XII: Miscellaneous of the Constitution of Pakistan
- First Schedule of the Constitution of Pakistan
- Second Schedule of the Constitution of Pakistan
- Third Schedule of the Constitution of Pakistan
- Fourth Schedule of the Constitution of Pakistan
- Fifth Schedule of the Constitution of Pakistan
- Article 239(1)–Article 239(6) in Part XI: Amendment of Constitution of the Constitution of Pakistan
- Article 239(4) in Part XI: Amendment of Constitution of the Constitution of Pakistan
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- Constitution of Islamic Republic of Pakistan, including Fundamental Rights
- Full Text of the Constitution via Law and Justice Commission
- Full Text and Case Law via Zain Sheikh & Associates
- Urdu text via National Assembly
- Laws & Order, 2002 (Updated Version)