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Forms of Constitution:
A constitution may be unwritten. As for instance the English Constitution which mostly
consist of constitutional as ages, traditions and conventions, or written, as most of the
modern constitutions are. Or partly unwritten. A written constitution is usually rigid
and inflexible in as much as, intended to be permanent, it does not admit of alteration
by ordinary legislative process and requires some extraordinary procedure for its
amendment. A constitution may be Unitarian or federal according to whether power
resets in the centre or is distributed between it and the federating units. A Unitarian
constitution is flexible if it can be amended by ordinary legislative process and rigid if it
requires a special procedure for its alteration.
(Anjum.S.Ahsan.1983)
Kinds of Constitution:
Federal and unitary constitutions
This classification is based on the principle by which the powers of government and the
constitution government established for its constituent parts. 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.
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
The English constitution involves one central government which pervades the whole
country.
Flexible
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 flexible constitution is likely to be unstable due to its capacity to undergo constant
changes. But at the same time there is this advantage that it facilitates all necessary
changes required by the changing political and economic ideas and circumstances, and
secures the growth of the constitution without the possibility of any revolution. The
English constitution with the supremacy of parliament is an instance of a flexible
constitution.
Rigid
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.
(Anjum.S.Ahsan.1983)
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
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
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.
As far as possible each provision of the constitution should be construed so as to
harmonies with all the others.
(Anjum.S.Ahsan.1983)
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.
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.
(Mehmood.M,1995).
Constitution making
The constituent assembly of Pakistan could not, frame a constitution during the lifetime
of the quaid-e-azam. In March 1949 a resolution known as the objectives Resolution
came to be passed by unanimous vote of the house. This resolution merely enunciated
the principles or guidelines on which the constitution was to be framed and could well
be regarded as the preamble of the constitution of Pakistan.
The constitution making went on till in 1954 a draft of the constitution was prepared
with the leaders of the various groups in the assembly but in October, 1054 Mr. Ghulam
Muhammad, the then Governor- General, put armed guards outside the assembly hall,
dissolved the constituent assembly by proclamation and allowed none to enter the
premises so as to pass the constitution. This step was taken by him to keep his gaddi
intact and for life, because he knew full well that he would have to vacate the office in
favor of the duly elected representative of the people.
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Maulvi Tamizuddin Khan, the speaker of the Constituent Assembly challenged his
resolution in the chief court of sindh and sought for a declaration that the orders of the
Governor-General were unauthorized, unconstitutional, and illegal and without force.
The Chief court issued a write restraining the governor- General. The matter went up in
appeal to the Federal Court headed by justice Munir who allowed the appeal and
dismissed the writ petition.
The federal court judgment in us if paatel case observed that the first concern of the
Government would have been to bring into existence another representative body to
exercise the powers of the Constituent Assembly so that all invalid legislation could have
been immediately validated by the new body.
Acting on this advice a new Constituent Assembly was elected by the members of the
Provincial Assemblies on basis of proportional representation and this Assembly
succeeded in framing a Constitution in 1956.
(Dr.Muhammad.B, 1995)
a trading company whose main objective was profit could not be entrusted with the
work of administration of a sub-continent like India. A bill was introduced by Lord
Palmerstone for the better Government of India in Parliament, which was passed and
became Government of India Act 1858, the first most important constitutional
document in the history of sub-continent. This act abolished the East India Company
and transferred the government of India from the hands of East India Company to the
Crown.
The Act of 1858 mainly provided:
1. India shall be governed by and in the name of Queen. The Governor-General
came to be known as the Viceroy.
2. The Board of Control and Court of Directors were abolished and all the powers
possessed by them were given to the Secretary of State for India and his Indian
Council.
3. The Secretary of State was to preside over the meetings of the Indian Council. He
was declared to be corporate body which could sue and be sued.
3. The Governments of Bombay and Madras where given the power of nominating
the Advocate-General and additional members of the Executive Council for the
purpose of legislation.
4. No distinction was made between the central and provincial subjects. However,
subjects concerning public debt, finances, currency, post-office, telegraph,
religion, patents and copyright were ordinary put under the control of the Central
Government.
5. The governor-General was given the power to create new provinces. He was also
given the power to appoint lieutenant-Governors. He was also authorized to
divide the limits of any presidency and province.
The Indian Council Act 1861 marked an important step in the constitutional history of
Indo-Pakistan. It made a beginning in representative institutions and legislative
devolution. Herein the policy of association was given effect to. However, it may be
noted that the non-official members of the Council were nominated by the Viceroy ad
not elected by the people. The legislative power given to these Councils was very wide
but was put under severe restrictions. The non-official members had practically no say
in the matter. In this way, the Act of 1861 was defective and required improvements of
representative institutions.
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.
5. The functions of the Legislative Councils were increased. Described rules were
made for the discussion of the budget in the Imperial Legislative Council. Every
member was given the right to move any resolution relating to any alteration in
taxation, any new loans or any additional grant to local Governments proposed or
mentioned in the financial statement or explanatory memorandum. However, the
Council was not permitted to discuss expenditure on interest, on debt,
ecclesiastical expenditure and State Railway etc.
6. The members were given the right of asking question and supplementary
questions for the purpose of further elucidating any point.
7. The members were given the power to move resolutions in the Councils.
8. Rules were framed for the discussion of matters of general public interest in the
Legislative Councils. But no discussion was permitted on any subject not within
the competence of the particular Legislature, any matter affecting the relations of
the Government of India with a Foreign Power or a native state, and any matter
under adjudication by a court of law.
9. In the provinces, Landlords, district Boards and Municipalities and Chambers of
Commerce were to select members.
10. Muslims were given separate representation. Muslim members of the legislation
were elected by the Muslims themselves.
(Khan Hamid, 2005)
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pass a law abolishing any High Court. Prior sanction of the Governor-General
was required to introduce bills on the following subjects:
The public profit or public revenues of India.
Religion or religious rites and usages of British subjects in India.
Discipline or maintenance of the land.
Relations of the government of India with foreign states or Indian states.
Any measures repealing or emending any Act of Legislature or any
Ordinance passed by the Governor-General.
The governor-General could also prevent consideration of a Bill or a part of it if,
in his opinion, it affects the safety or tranquility of British India, or any part
therefore.
6. 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.
7. The Central Budget was presented before the Central Legislature in the form
of demands for grants. There were certain non-votable items which were not
open to discussion unless the Governor-General so allowed. All other items
were submitted to vote. In an emergency, the Governor-General was
empowered to authorize such expenditure as, in his opinion, was necessary
for the safety or tranquility of British India or any part before.
(Hassan.u.Masud,2001)
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federal constitution and also because it sought to provide legal safeguards against
misbehavior on the part of the Indian Ministers and the legislature.
Special features of the Act of 1935:
Establishment of a Federation.
Provincial autonomy with parliamentary Government.
The separation of Burma from India.
Provisions:
Provincial Autonomy:
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The presence of different provinces in the WP had complicated the issue of the WP
representation in the CA. It was handled by uniting all the WP units into ONE (One
Unit, October 30, 1955). Now both the parts had become two units and could be
addressed equally.
(Dr.Muhammad.B, 1995)
Constitution-making
One Unit scheme helped the task of constitution making to achieve successfully. The
previous committees report helped the new Assembly that completed its work and
presented in the 2nd CA on January 9, 1956. It, with certain amendments, was approved
on January 29, 1956 and imposed on March 23. With this Pakistan had become an
Islamic Republic.
Constitution of 1956:
The first constitution of the country was enforced on 23 rd march, 1956. The main points
of this constitution are as follows:
1. Pakistan was to be federal republic based on Islamic Ideology.
2. A detailed and comprehensive list of fundamental rights with an Independent
Judiciary was provided in the constitution.
3. The system of the parliamentary form of government was adopted both at the
Centre and in the provinces.
4. There was distribution of powers between the Centre and the provinces.
5. The constitution provided for Pakistan, wherein equality between East and West
wings had been maintained.
6. For the distribution of subjects between the centre and the provinces, three lists
of subject had been drawn up.
7. 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.
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8. It had provided for two National languages Urdu for the West Pakistan and
Bengali for the East Pakistan.
9. Instead of double citizenship, one citizenship system was provided for the
Federation of Pakistan.
10. The constitution was silent as to be method of conducting elections both for the
Central and the Provincial legislatures.
11. And finally, there were the Islamic characters of the constitution.
Islamic provisions of the 1956 constitution:
i.
ii.
iii.
iv.
v.
The political conditions of the country could not be improved even after the first
constitution was enforced. The political instability remained rampant. The elections
could not be held till 1858. The constitution invited criticism from certain quarters.
Martial Law was declared in the Country on 8 th October, 1958. General Ayub,
commander in chief of the Army, took over the government and became the Head of the
State on 27th October 1958.
After taking over President Ayub Khan set up a constitutional commission under justice
Shahab-ud-Din to suggest recommendation for the new constitution of the country. The
commission after through and lengthy discussion submitted its report on 6 th March
1961.
The report was examined by president. In its report the commission highlighted the
reasons of the failure of parliamentary democracy in Pakistan. It fixed the responsibility
for the debacle of democracy on the lack of dedicated leadership, absence of well
organized political parties and the self aggrandizement of the greedy politicians. In the
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view of the recommendation of the commission a new constitution was not framed by a
constitutional body which was elected nor did it enjoy popular support. The constitution
was thrust upon the people in an undemocratic and authoritarian manner.
(Mehmood.M, (1995).
Constitution of 1962:
Salient Features of the Constitution
1. Title of the State will be Islamic Republic of Pakistan.
2. 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 re-election.
3. 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.
4. 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.
5. 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.
6. Financial Powers of NA were limited. Only new expenses could be voted. NA
could not reject join Fund List and Recurring Expenditure.
7. 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.
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8. 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.
9. 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.
10. Fundamental Rights were provided in the constitution.
11. Originally Political Parties were not allowed. Political Parties Act was introduced
in 1962.
12. Objectives Resolution was the Preamble of the Constitution. Other Islamic
provisions were a part of Principles of Policy and not the constitution.
13. An Advisory Council for Islamic Ideology was made in the constitution having 512 members. It was a recommendatory body.
14. It was designed for the Research and instructions in Islam for assisting the
reconstruction of Muslim society on truly Islamic lines.
Constitution remained enforced from June 8, 1962 to March 25, 1969.
(Gankovsky.V.Y & Moskalenko.N.V, (1975).
Constitution of 1973
Background
Abrogation of the 1962 Constitution on March 25, 1969 led to second martial law in the
country. Yahya Khan handed over power to Zulfikar Ali Bhutto on December 20, 1971
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after the first general elections. But martial law continued and there was no
constitution. National Assembly approved a temporary Constitution, which was
imposed on April 21, 1972.
Constitution Making
Constitutional Committee comprising National Assembly (NA) members from all
parties was set up in April 1972. Law Minister was the Chairman of this Committee. All
parties agreed on the future political system in October 1972. The Committee reported
on December 31, 1972. After long deliberations and compromises final draft was
approved commonly on April 10, 1973. The new Constitution was imposed on August 14,
1973.
The Constitution functioned since then with two gaps. It remained operational during
following periods:
1973-77: Operational
1977-1985: Suspended
1985-1999: Operational after changes
1999-2002: Suspended
2002 onwards Operational after changes
Features of the Constitution
1. Parliamentary System
It was a parliamentary constitution having powerful Prime Minister (PM) as head of
government with a very weak President. President must act on the advice of PM. All his
orders were to be countersigned by PM. Prime Minister to be elected by the NA. PM
exercised all executive authority.
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PM was answerable to the NA. In 1985, powers of the President were increased. He
enjoyed some discretion in appointments of
PM. He had power to break up the NA. He had the powers of appointment of caretaker
PM. He gives his assent to bills passed by the parliament or returns these.
2. President:
Must be at least 45 years of age, Muslim, qualified to become member of the NA. He is
elected by the Parliament and the Provincial Assemblies for 5 years.
3. Parliament with two houses:
Upper House called Senate. In this house equal representation is given to Provinces.
Seats are reserved for the tribal areas, women and technocrats. Its original strength was
63, which was later raised to 87 and then 100. Senate is elected indirectly. Its a
permanent House as half of its members are elected after three years.
Lower House: National Assembly is elected on population basis. Its Original strength
was 210 but now it is 342. NA is elected for five years.
Senate: Indirect elections
National Assembly: Direct elections
Voting age for the franchise is lowered from 21 to 18.
Parliament under 1973 constitution is a powerful legislative body. It enjoys all
legislative powers. It has control of the executive through questions, resolutions,
parliamentary committees etc.
National Assembly is more powerful than the Senate. Budget is presented before NA.
Cabinet is answerable to National Assembly.
4. Federal System
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Federation of Pakistan has four provinces and federally administered areas. Two lists
are given in the constitution: Federal list and Concurrent list. Residuary powers belong
To provinces.
5. Provincial Structure:
Provincial Governors are appointed by the President on the advice of the PM. Elected
Chief Minister exercises executive powers. Parliamentary system is there in the
provinces.
Size of the provincial assemblies varies:
In 2002:
Punjab 371
Sindh 168
NWFP 124
Balochistan 65
Enough provincial independence is guaranteed. Tradition of strong centre continues.
Centre has emergency powers. Governors rule can be forced if the government cannot
function in the provinces. Provinces are dependent on centre for Finances.
6. Principles of Policy:
Islamic provisions are provided in Principles of Policy.
7. Fundamental Rights:
Fundamental Rights are protected in the constitution and are implemented through the
highest court.
8. Islamic Provisions:
Title of the state is Islamic Republic of Pakistan.
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The objectives resolution was the Preamble in the initial constitution but through article
2-A of 8th amendment it was inserted in the constitution in 1985.
Islam was declared the State Religion of Pakistan.
Definition of Muslim was included by an amendment.
Principles of Policy also carry some Islamic clauses.
Council for Islamic Ideology is recognized under the constitution.
Federal Shariat Court was added in 1981.
9. National Language:
Urdu is declared National Language, however English may be used for official purposes
until preparations would be made for its replacement by Urdu.
Provincial Assembly may prescribe measures for teaching, promotion and use of a
provincial language in addition to the national language.
10. National Security Council:
National Security Council was added in 2002 in advisory capacity.
11. Judiciary:
An independent judiciary is given under the constitution. Supreme Court of Pakistan is
the highest court. One High Court is established in each province and one in Azad
Kashmir. A chain of lower courts is there under the high courts.
12. Rigid
A constitution is rigid or flexible can be tested by seeing the procedure laid down for its
change or amendment. A flexible Constitution can legally be amended by the same
process of law-making as an ordinary law, while in a rigid Constitution specific
machinery is provided in itself by which any change or amendment can be effected.
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(Ishaq.M.Khan. (1973).
Amendment of constitution
I.
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
II.
III.
IV.
V.
receipt the Bill shall be deemed to have been rejected by the senate.
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
VI.
VII.
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.
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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.
The constitution of 1073 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.
References
1. Chaudhry.g.A, (1997).Constitutional History of Pakistan, published by our press,
Lahore, Pakistan
2. Mehmood.M, (1995). The Constitution of Islamic Republic of Pakistan,
published by markazi kutub khana, Lahore, Pakistan
3. Hassan.u.Masud, (2001). The Constitutional History of Pakistan, printed by
chaudhary Abdul Sattar press, Lahore, Pakistan
4. Khan Hamid, (2005). The Constitutional and Political History of Pakistan,
published by Ameena Saiyed, oxford university press.Landon
5. Anjum.S.Ahsan, (1983). The Constitution of the Islamic Republic of Pakistan,
published by Mian asad Hakim Lahore, Pakistan
6. Ali Ashfaq, (2004). The Constitution of the Islamic Republic of Pakistan,
published by khusnood Book house, Karachi, Pakistan
7. Dr.Muhammad.B, (1995). Constitution making in Pakistan, published by Royal
Book Company, Lahore, Pakistan
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