Constitutional Development in Pakistan

4.1.1 Define Constitution

The basic principles and laws of a nation, state, or social group determine the powers and duties of the government and guarantee certain rights to the people in it.

4.1.2 Why the constitution is necessary for a country?

The Constitution of a country contains the set of laws that are used to govern a country. Within the constitution, some laws state: how people in the country should behave and what happens if someone breaks the laws of the country. These laws are the authorities to maintain law and order and it is the prime responsibility of a government to implement these laws and maintain peace and progress within the country.

4.2.1 Objective Resolution:

Background:

Quaid-e-Azam laid the foundation stone of Constitution-making. But after death on September 11, 1948, the process of constitution-making slowed down.

Khan Liaquat Ali Kahn rose to the occasion and took a practical step towards constitution-making. He furnished a resolution in the Legislative Assembly on 12th March 1949. This resolution was popularly known as “Objective Resolution.”

Salient Features Of Objective Resolution:

After a long discussion, the assembly adopted the “Objective Resolution” moved by Liaquat Ali Khan on March 12, 1949. Objective Resolution contained the following features for the constitution of a newly-born country:

1. Sovereignty Of Allah:
2. The preamble of Objective Resolution recognized the sovereignty of Allah over the entire universe and the authority which He delegated to the State of Pakistan through its people.
3. Principles Of Democracy:
4. The principles of democracy, freedom, equality, tolerance and social justice initiated by Islam shall be fully observed.
5. Islamic Way Of Life:
6. Muslims shall be enabled to order their lives in the individual and collective spheres by the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.
7. Minority Protection:
8. Adequate provision shall be made for minorities to freely profess and practise their religion and develop their culture.
9. Federation Of Pakistan:
10. The territories now included in or in accession with Pakistan and such other territories, as they may after be included or accede to Pakistan, shall form a federation wherein the units will be autonomous with boundaries and limitations on their power and authority as may be prescribed.
11. Fundamental Rights:
12. Fundamental rights including the equality of status, opportunity and before the law, social and political justice and freedom of thought, expression, faith, belief, worship and association subject to the law and public morality shall be guaranteed.
13. Minority Rights:
14. Adequate provision shall be made to safeguard the legitimate rights of minorities and backward and depressed classes.
15. Independence Of Judiciary:
16. The independence of the Judiciary shall be fully secured.
17. Integrity Of Federation:

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.

In the context of the above-mentioned features, the constitution-making process in Pakistan became alive again. People from different walks of life demanded the promulgation of this resolution in practice in Pakistan.

4.2.2 Importance of Objective Resolution:

1. It laid down the objectives on which the future constitution of the country was to be based.
2. It proved to be the foundational stone of constitutional development in Pakistan.
3. The most significant thing was that it contained the basic principles of both the Islamic political system and Western Democracy.
4. Its importance can be ascertained from the fact that it served as a preamble for the Constitution of 1956, 1962 and 1973 and ultimately became part of the Constitution when the Eighth Amendment in The Constitution of 1973 was passed in 1985.

4.2.3 Delay in the Constitution-making?

Various Committees federal and provincial were made to devise a constitution but they faced grave problems such as:

1. Lack of consensus between East and West Pakistan.
2. Quaid’s death created a political vacuum.
3. Issue of National Language.
4. Lack of decision either state should be Islamic or Secular.
5. Post-partition Administrative problems.

4.2.4 Constitution Of 1956:

Background:

Chaudhary Mohammad Ali was a sincere politician and an experienced parliamentarian. He took a personal interest in the constitution-making process. He presented the draft of the first Constitution of Pakistan in the second assembly. It was approved by the assembly on 29th February 1956. Then this draft was sent to the Governor-General Major-General Iskander Mirza ratified it on 2nd March 1956. Thus, the first constitution of Pakistan was formed nine years after the independence of the nation. Finally, the first constitution was enforced on 23rd March 1956 and Pakistan was declared a Republic.

Salient Features Of The Constitution Of 1956:

1. Preamble:
2. Objective Resolution was made a part of the constitution of 1956 which declared that all sovereignty belonged to Allah.
3. Written Constitution
4. The Constitution of 1956 was a written document. It consisted of 234 Articles, 3 Parts and 6 Schedules.
5. Semi-rigid Constitution:
6. It was a semi-rigid constitution. Unlike the constitution of the USA, it was not very difficult to make an amendment to it; only one-third majority of the assembly could make an amendment to it.
7. Federal System:

The Constitution of 1956 provided a federal system in the country which consisted of the following institutions:

a) The President

b) The Government

c) The Parliament

a) President:

According to the constitution of 1956, the President was the head of the State. He was a Muslim who was elected by the National Assembly and all four provincial assemblies by a majority vote for five years. He enjoyed the following powers:

• He could nominate the Prime Minister.
• He could appoint the provincial governors, judges of Supreme and High Courts, Auditor General and Advocate General.
• He could call a session of the National Assembly and be authorized to dissolve it.
• He was authorized to promulgate an ordinance during the period when the National Assembly was not in session.
• He was authorized to reduce or condone the punishment given by the Courts.
• He could declare an emergency in the country.

b) Federal Government:

The Federal Government comprised the President, the Prime Minister, the National Assembly, and the Federal Cabinet. The Chiefs Of the Army, Navy and Air Force and the Supreme Court. The federation of Pakistan comprised four provinces, federal and tribal areas. There were three lists of subjects viz, the federal list, the provincial list and the concurrent list.

c) The Parliament:

The constitution of 1956 provided a unicameral legislature called the National Assembly which consisted of 300 members. Out of these, 150 members were elected from East Pakistan and 150 from West Pakistan. It enjoyed full authority over the federal list of subjects. It was compulsory to call two sessions of the assembly in a year one to be held in Decca while the other was to be convened in Karachi.

v) Independence Of Judiciary:

the constitution of 1956 established an independent judiciary which consisted of the following Courts:

a) The Supreme Court

b) The High Courts (One each in East and West Pakistan)

c) The Lower Courts.

The Supreme Court was the highest in the country. It not only heard appeals from the Lower Courts but also interpreted the Constitution at the request of Federal or Provincial authorities. Similarly, two High Courts were established in Decca and Karachi. Judges of these courts were appointed by the President of Pakistan.

vi) Basic Rights:

The Constitution of 1956 provided the following Basic Rights to Its people irrespective of religion, caste or creed.

• Safeguard against arrest and detention
• Security to person and property
• Safeguard against forced labour
• Freedom of movement
• Freedom of speech
• Freedom of assembly
• Freedom of association
• Freedom to hold property
• Freedom to profess religion
• Freedom to earn a livelihood

vii) National Language: Both Urdu and Bengali have grated the status of national languages. However, it was decided that English would be the official language for 25 years.

4.2.5 Causes Of Failure Of The Constitution:

The Constitution of 1956 was abrogated in 1958. The causes of its failure were as under:

1. The multi-party system was one of the main causes of its failure.
2. General elections were not held up to 1956. Consequently, the parliamentary system did not strike roots in the country.
3. The politicians were insincere and preferred their personal interests over national interests.
4. The eleven-year period from 1947 to 1958 was a period of political instability which witnessed the rise and fall of nine prime ministers. These circumstances were not conducive to democracy which was a hallmark of the constitution of 1956.
5. The constitution was modelled on the One-Unit of West Pakistan.
6. Opponents of the One-Unit created hatred against the Constitution.
7. The irresponsible and unpatriotic acts of Ghulam Mohammad destabilized the democratic process. He did not hesitate to dissolve the First Constituent Assembly.

4.2.6: Constitution Of 1962:

Background:

Ayub Khan constituted a Constitutional Commission on 17th Feb 1960, under the chairmanship of Justice Shahabudin. The commission comprised ten members from both wings of the country. To appraise itself of the causes of the failure of the parliamentary system and the opinion of the people, the Commission prepared a questionnaire and printed its 28,000 copies in Urdu, Bengali and English languages. These copies were distributed throughout the country but only 6,289 replies were received. Also, the Commission visited various parts of the country and interviewed 565 people who were interested in constitutional matters. Finally, the commission submitted its report to the President in May 1961. Based on this report, a new constitution was framed which was enforced in the country on 8th June 1962.

Salient Features:

a) Written Constitution:

Like the constitutions of the USA and France, the constitution of 1962 was a written document. It comprised 250 Articles and 5 Schedules.

b) Rigid Constitution:

It was a rigid constitution and it was not easy to make an amendment to it. A two-thirds majority of all the members of the National Assembly was required to make any amendment. If the amendment concerned provinces then it was necessary that the two-thirds majority of all the members of the concerned provincial assembly approve the proposed amendment. Finally, the President had the authority to use his powers of veto against the amendment. In this case, the Assembly could pass the amendment with a three-fourth majority. But the President enjoyed the power to veto it again and to ask for a referendum by the 80,000 members of Basic Democracies.

c) Federal System:

The constitution provided for a federal system with the principle of parity between East Pakistan and West Pakistan.

d) Presidential Form Of Government:

The Constitution of 1962 established a presidential form of government. According to this system, the President was the Head of the State. He must be a Muslim not less than 35 years of age.

e) Powers Of President:

The term of the President was 5 years to act as the Head of the State as well as Chief Executive- solely responsible for the country’s administration. Governors and ministers could be appointed and removed by him. He was eligible to promulgate any ordinance and veto against any legislated law. He could make his cabinet and the members of his cabinet should not be necessarily the ministers of the National Assembly. He was the most powerful person to administrate and legislate. He was not answerable to the National Assembly. He had all powers to accept any bill of the assembly or cancel it. Powers to nominate the Judges of Supreme and High Courts, Auditor General, Advocate General, Higher Officials of the army and higher bureaucracy were in his hands.

f) Unicameral Legislature:

The Constitution of 1962 established unicameral legislation in the country which consisted of 156 members. The number was increased to 218, out of these 200 members were elected, 10 were nominated by the government and eight were reserved for women. This assembly was called the National Assembly.

g) Provincial Government:

According to the constitution, the provincial governments were established in both wings of the country. The provincial governments were headed by the Governors who could appoint provincial ministers with the approval of the President.

h) Principles Of Policy:

Following were the principles of policy:

1. No law shall be framed in contravention of the Quran and Sunnah.
2. Illiteracy will be wiped out of the country.
3. The rights of minorities will be protected.
4. Both the provinces enjoy full powers.
5. Friendly relations will be established with the Muslim countries.
6. Prohibition on the use of drugs in the country.
7. The standard of living of people will be raised.
8. Special attention will be given towards education, health and welfare of the people.

4.2.7: Causes Of The Failure Of The Constitution Of 1962-Critical Analysis:

The Constitution of 1962 could not win popularity among the masses due to the following reasons:

1. Gen Ayub Khan’s rule was a constitutional autocracy and the constitution of 1962 was actually just a tool to achieve this purpose. That is why it could not become popular among people.
2. The Constitution conferred unlimited powers on the President. President Gen. Ayub Khan’s regime could be compared to the British vice-regal system which existed in India during the thirties and forties of the century.
3. The people of East Pakistan were not happy with the constitution because West Pakistan dominated all spheres of life. All the high officers like Presidents, Commanders-in-Chief of the Army, Air Force and Navy were from West Pakistan.
4. The system of Basic Democracies introduced the method of indirect election to the President and the National Assembly which deprived Pakistani people of their basic rights.

4.2.8 Islamic features of 1956 and 1962 constitution:

1. Objective Resolution - A Preamble

The Objective Resolution was included in the Preamble of the Constitution, which starts with the name of Allah, the Merciful. It declared that Pakistan would be a democratic State, Every Muslim should order his life according to Quran and Sunnah.

2. Islamic Provisions.

Islamic provisions were made part of the Directive Principles of State Policy. According to these principles, the state was to

1. To provide facilities to the Muslims to enable them to spend life under the rules of the Holy Quran and Sunnah.
2. To build a proper organization of Zakat and Auqaf. Pakistan will be an Islamic Republic: In this constitution of Pakistan, the state of Pakistan was declared an Islamic State to be known as the Islamic Republic of Pakistan. However, Islam was not made the state religion of Pakistan.
3. The Head of State will be a Muslim:
4. Establish friendly brotherhood relations with Muslim countries:

4.2.9 Constitution Of 1973:

Background:

After the debacle of 1971, the country faced serious political and constitutional problems. The Constitution of 1962 had been abolished. Zulifqar Ali Bhutto when took over the reins of the country, he gave serious attention to the framing of a new constitution for the country. The National Assembly appointed a committee on 17th February 1972. The committee was headed by Hafiz Pirzada to frame a draft constitution for the new constitution. The committee submitted the draft constitution to the National Assembly on 2nd February 1973. The draft was passed by the assembly and the President gave his assent on April 12, 1973. It was promulgated on 14th August 1973.

Salient Features Of The Constitution Of 1973:

a) Written Constitution:

The Constitution of 1973 is a written document. It consists of twelve parts comprising 27 Chapters and 280 Articles. The twelve parts deal with the following topics.

Part One Introductory Part

Part Two deals with Fundamental Rights

Part Three deals with the Federation Of Pakistan

Part Four deals with the Provinces

Part five= Deals with the links between the Federation and Provinces

Part Six Deals with matters like finance, property and contracts.

Part Seven= Deals with Judiciary

Part Eight= Deals With the Electoral System

Part Nine= Deals with Islamic Provisions

Part Ten= Deals with emergency

Part Eleven= Deals with Amendment Procedure

Part Twelve Deals with Miscellaneous Matters.

b) Introductory:

The constitution of 1973 commences with an introductory in which Objective Resolution is included which declares God’s sovereignty over the Universe.

c) Rigid Constitution:

It is a rigid Constitution means it is not easy to make an amendment to it. only a Two-third majority of both houses of Parliament is required for any amendment.

d) Federal System:

The Constitution introduced a federal system in the country. According to this system, the country consisted of the federal government and four provinces. President is the Head of the State.

e) Federal system Of Government:

Unlike the Constitution of 1962, The Constitution of 1973 introduced a parliamentary system of Government in the country. The Prime Minister is the Head of the government. He is the leader of the majority party in the parliament. He runs the affairs of the country with the help of a cabinet. The members of his cabinet are elected by the ministers of parliament. Prime Ministers enjoy wide powers.

f) Bicameral Legislature:

Unlike the constitution of 1956 and 1962, this constitution set up a bicameral legislature comprising a National Assembly (Majlis-e-Shoora) and a Senate. The tenure of the National Assembly is five years. The Senators are elected for a term of 6 years. Half of the members of the Senate retire after every three years.

g) Direct Elections:

The Constitution of 1973 provides for a direct system of election to the members of national and provisional assemblies. The elections are held on an adult franchise basis.

h) Fundamental Rights:

This constitution guarantees the following fundamental rights to all citizens, these are:

1. Security of person and property
2. Safeguard against slavery and forced labour
3. Freedom of Movement
4. Freedom Of Speech
5. Freedom Of Peaceful assembly
6. Freedom to hold property
7. Freedom to earn a livelihood
8. Equality before the law
9. Freedom to profess religion
10. Protection of language and culture

j) Independent Judiciary:

This constitution has set up an independent judiciary in the country. The Judges are appointed by the President of Pakistan but they cannot be removed from services without the recommendations of the Supreme Judicial Council.

k) High Treason:

This constitution declares that any unlawful abolishment of the constitution of Pakistan would be considered high treason.

l) Rule Of Law:

The constitution has established a rule of law in the country. According to this constitution, the people of Pakistan are guaranteed their fundamental rights and all of them are equal before the law.

m) National Language: Urdu has been declared national and English is an official language.

4.2.10 Features of Islamization in the 1973 Constitution

1. Islamic Republic of Pakistan
2. State Religion
3. Sovereignty Belongs to Allah
4. Definition of a Muslim
5. A Muslim to be a President and Prime Minister
6. Islamic way of life
7. Promotion of Social Justice and Eradication of Social Evils
8. Teachings of the Holy Quran
9. Strengthing Bond, with the Muslim World
10. Council of Islamic Ideology
11. Error-Free Publication of the Quran
12. Oath to Project and Promote Islamic Ideology

4.2.11 Fundamental rights provided by the 1973 Constitution

This constitution guarantees the following fundamental rights to all citizens, these are:

1. Security of person and property
2. Safeguard against slavery and forced labour
3. Freedom of Movement
4. Freedom Of Speech
5. Freedom Of Peaceful assembly
6. Freedom to hold property
7. Freedom to earn a livelihood
8. Equality before the law
9. Freedom to profess religion
10. Protection of language and culture.

4.2.12 Women's Rights Provided by the 1973 Constitution

1. Rights of life and liberty
2. Rights to Equality (irrespective of gender, race, religion, caste, residence)
3. Rights to Freedom
4. Rights to Property
5. Rights to Culture:
6. Social Rights
7. Right to Constitutional Remedies to ProtectFundamental Rights

4.2.13 Minority Rights in the 1973 Constitution

1. Freedom to profess religion and to manage religious institutions.
2. Safeguard against taxation for the purpose of any particular religion.
3. Safeguard educational institutions concerning religion.
4. Preservation of language, script and culture.
5. Protection of minorities.

Also, Read Other Pakistan Studies Topics:

• Pakistan's Ideology and Its Historical Background
• Administrative Structure Of Pakistan
• Culture Of Pakistan
• Constitutional Development in Pakistan
• National Integration and Prosperity
• Foreign Policy of the Islamic Republic of Pakistan
• Economic Planning and Development in the Islamic Republic of Pakistan
• Boundary Commission or Radcliff Award