University of Punjab, Jhelum Campus

Department of law

Assignment: what was impact of 5th amendment on the constitution of Pakistan 1973, on

the politics of Bhutto regime, national treasury, and industry?

Subject: Constitutional history of Pakistan

Submitted by: Muhammad Attiq Ur Rahman

Class: L.LB 5 years (8th semester)(self-supporting)

Roll no LLB-F19-A-40

Submitted to: Mr. Jameel Aziz

Contents
Background of 5th amendment.........................................................................................................3
Benefit to Bhutto..............................................................................................................................3
Bhutto’s evil mind and introduction of 4th amendment...................................................................5
Impact of 5th amendment.................................................................................................................6
Impact on judiciary..........................................................................................................................6
‌Impact on treasury and industries....................................................................................................7
References........................................................................................................................................8

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Background of 5th amendment

Though NAP had seen a split in 1967 when Maulana Bhashani and Wali Khan formed their own

factions after the separation of East Pakistan, the Bhashani faction had become irrelevant in the

rump Pakistan. Now again in the 1970s, against Bhutto’s repression and violations of

fundamental rights, NAP -- led by Wali Khan -- was the only progressive force in the Pakistan

that was being steamrollered with constitutional amendments.

Being himself from a smaller province, Sindh, ZA Bhutto could and should have understood the

aspirations of other smaller provinces i.e. Balochistan and the NWFP (now KP). Instead, Bhutto

stood by the Big Brother and tried to draw his strength from the army and from his own creation

of 15,000-strong Federal Security Force (FSF). In addition to Balochistan and the NWFP, Wali

Khan was also popular among the progressive forces in Punjab and Sindh, and Bhutto did see

him as a major political threat.

Benefit to Bhutto

With NAP banned and all its properties and funds forfeited to the federal government, the true

meanings of the amendments came to the fore. While drafting the amendments, Bhutto had

carefully selected every word to support his future actions. He was bent upon destroying

democratic forces that could stand him in good stead against anti-democratic forces that

ultimately toppled him.

When the case was heard in the Supreme Court of Pakistan, the then Chief Justice Hamoodur

Rahman -- who had earned a respectable name in his judicial career and as head of the

Hamoodur Rahman Commission -- for some mysterious reasons overruled Wali Khan’s

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objections against two judges on the bench who were well-known for their proximity with ZA

Bhutto.

It is surprising that a judge of Rahman’s caliber -- who himself hailed from East Pakistan and

had closely observed the consequences of declaring political leaders as traitors -- was unable to

see the ruse in Bhutto’s machinations. It is even more startling that -- even if Wali Khan and

some of his colleagues were deemed to be sentenced -- the entire political party that had had an

illustrious background in the struggle for the restoration of democracy against military

dictatorships when Bhutto had been in collusion with both Generals Ayub Khan and Yahya Khan

was terminated with ruthless force and Chief Justice Hamoodur Rahman upheld these actions.

Whereas the Supreme Court’s acceptance of press reports and intelligence officers’ statements as

admissible remains questionable, the court’s observation that Pakistan comprised just one nation

and did not have any nationalities was purely a statist and centrist prejudice, especially when

Chief Justice Hamoodur Rahman himself had investigated the fallout of such assertions in East

Pakistan. He tarnished his own image with this last major judgement of his otherwise impressive

career.

There was not even a single note of dissent. All judges were unanimous that NAP was indeed a

threat to this country. One wonders how Wali Khan could be released within weeks after ZA

Bhutto’s removal by General Ziaul Haq -- a self-proclaimed defender of Pakistan ideology.

Just two days after this verdict, Justice Hamoodur Rahman retired and Justice Yaqub Ali was

sworn in as the new chief justice of the Supreme Court.

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Bhutto’s evil mind and introduction of 4th amendment

As if all this was not enough, ZA Bhutto introduced the Fourth Amendment to the constitution

further curtailing the writ jurisdiction of the High Courts under Article 199 in cases of preventive

detention. Now the courts were not allowed to grant bail to a person or to prohibit such

detention. A presidential ordinance was promulgated that disqualified NAP office-bearers from

membership of national and provincial assemblies. With a parallel ordinance special courts were

established to try anti-state activities.

After these changes, no high court had the jurisdiction to come to the aid of political victims and

could not grant such people bail during detention. The whole process of the Fourth Amendment

was so cunningly handled that the other two elements of the amendment were projected to dilute

the more destructive ones: six special seats to the minorities were allocated in the National

Assembly; and in Punjab Assembly minority seats were increased from three to five.

Bhutto himself mutilated his own constitution as much as he could and as a result

antagonised his entire potential companion in the journey to a stable democracy.

The opposition members who wanted a discussion on the Fourth Amendment -- especially

regarding the curtailment of high court jurisdiction -- were physically removed and almost

defenestrated by the security staff. The opposition leaders who had this distinction included big

names such as Maulana Mufti Mahmood, Prof Ghafoor Ahmed, and Mahmood Ali Kasuri. After

their defenestration, the Fourth Amendment was passed without any opposition. Interestingly,

the PPP majority could have passed the amendment even without such mean tactics, but

probably it had to become part of our history.

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Impact of 5th amendment

The Fifth Amendment was introduced in September 1976, amending 16 articles and the First

Schedule of the Constitution. This amendment further restricted the powers of the high courts

under Article 199. Now for the first time the judges themselves were affected by these changes

in several ways: the term of the chief justices of supreme and high courts were to be determined

not solely by age but also by a fixed period as an alternative. Now it was evident that ZA Bhutto

wanted to secure changes in some of the appointments.

Another provision of this amendment was that now the government had the power to transfer a

judge -- without his consent -- from one high court to another and no reason had to be given and

no consultations in this matter were required even with the chief justice.

Again, this amendment bill was also sugar-coated with the establishment of separate high courts

for Sindh and Baluchistan, and that was projected more prominently than the restriction on the

high court jurisdiction to grant interim bails. Abdul Hafeez Pirzada was federal education

minister in ZA Bhutto’s cabinet. He vociferously attacked judiciary for encroaching upon the

legislative and executive functions. He was of the opinion that if the judiciary deviated from the

constitution it would be subversion and high treason. Even ZA Bhutto himself announced on the

assembly floor that an independent judiciary did not entail its supremacy over other organs of

state.

Impact on judiciary

With this amendment in place, the judges were constantly under threat of transfer if they did not

oblige the government functionaries. Now even the chief justices of high courts could not refuse

elevation to Supreme Court for fear of compulsory retirement. Though it was the only

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amendment passed in 1976, the Fifth Amendment totally subdued and tamed the superior

judiciary. The chief justices of Lahore and Peshawar High Courts -- Sardar Iqbal (father-in-law

of Ayaz Sadiq) and Ghulam Safdar Shah -- were forced to quit after completing their four-year

term even when they had not reached the age of superannuation.

After Justice Sardar Iqbal’s retirement, Justice Maulvi Mushtaq was the most senior judge of the

Lahore High Court but ZA Bhutto bypassed him to appoint his favourite Justice Aslam Riaz

Hussain as the Chief Justice. This favouritism cost Bhutto dearly when Justice Mushtaq used

insufficient evidence to sentence Bhutto to death after his removal from power by General

Zia(Dr Naazir Mahmood, 2015)1.

‌Impact on treasury and industries

Taxes on the sales and purchases of goods imported, exported, produced, manufactured or

consumed.

On 1 July 1976 third programme of nationalization was started, when approximately 2,000

cotton, ginning and rice husking units came under the nationalisation programme. This

programme met with administrative nightmare and widespread public resentment. The third

programme eliminated the role of middle men, and it was rumoured that the producer as well as

consumers of cotton, rice and wheat had been at the mercy of middle men trading in the milling

of these commodities, with the result that producers were deprived of due share and consumer

got poor quality and adulterated commodities at much higher prices. By 1977, the people’s

party's government had built a strong and sizeable public sector with priority on cement, steel

and fertilizers (“Nationalization under Bhutto - History Pak,” 2012)2.

1
(Dr Naazir Mahmood, 2015)
2
(“Nationalization under Bhutto - History Pak,” 2012)

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References

Dr Naazir Mahmood. (2015, October 25). A history of constitutional amendments | Political

Economy | thenews.com.pk. Retrieved February 11, 2023, from Thenews.com.pk website:

https://www.thenews.com.pk/tns/detail/559672-history-constitutional-amendments

Nationalization under Bhutto - History Pak. (2012, March 21). Retrieved February 13, 2023,

from History Pak website: https://historypak.com/nationalization-under-bhutto/

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