CONSTITUTION OF PAKISTAN
TABLE
OF
CONTENTS
Constitution Constitu tion of Pakistan................ ................................. .................................. ................................. ................................. ................................. .................. .. .... ...... .. 3 The Government of India Act, 1935................ ................................. ................................. ................................. ............................ ........... .... ......... ........ ... 3 Objectives Resolution................. ................................. ................................. ................................. ................................. ............................ ........... ..... .......... ......... ...... .. 4 The Constitution of 1956......... .................. ................... ................... .................. ................... ................... ................... ................... ............. .... ................. 5 Islamic Provisions in the Constitution of 1956......... ................... ................... .................. ................... ............. ... .................. .................... .. 6 The First Martial Law and the Abrogation of the Constitution Constituti on................ ............................. ............. .... ......... ......... ......... ..... 7 The Constitution of 1962......... .................. ................... ................... .................. ................... ................... ................... ................... ............. .... ................. 7 Islamic Provisions Provisions in the Constitution of 1962 ....................... ................................ .................. ................. .......................... .................... .. 9 The Second Martial Law, Abrogation of the Constitution and the New Political Situation. . . 11 The Constitution Constitutio n of 1973 -- The Existing Constitution .............. ............................... .................................. ........................ ....... ..... 15 Islamic Provisions in the Constitution of 1973......... ................... ................... .................. ................... ............ ................... ..................... 17 Comparison with Previous Constit Constitutions utions ................. .................................. ................................. ................................. .......................... ......... . 19 Preamble of the 1973 Constitution Constitutio n (Existing Constitution) Constituti on)................ ............................. ............. .... ......... ......... ......... ....... .. 19 References Ref erences......... .................. ................... ................... .................. ................... ................... ................... ................... .................. ........... ................. .............................. ............. 21
[email protected]
03335199328
2
CONSTITUTION
OF
PAKISTAN
The Constitution of Pakistan is the supreme law of Pakistan. There have been several documents known as the Constitution of Pakistan. The Constitution of 1973 is the existing constitution, which provides for a parliamentary system with a President as head of state and popularly elected Prime Minister as head of government. Pakistan has a bicameral legislature that consists of the Senate Senate (upper (upper house) house) and the Nation National al Assembly Assembly (lower house). house). Together ogether with with the President, the Senate and National Assembly make up a body called the Majlis-i-Shoora (Council of Advisors) or Parliament. 1
THE GOVERNMENT
OF I NDIA
ACT, 1935
Under Section 8 of the Indian Independence Act, 1947, the Government of India Act, 1935 becam became, e, with with certai certain n adaptat adaptation ions, s, the workin working g consti constitut tution ion of Pakist Pakistan. an. But the need need of a constitution to be framed by the elected representatives of the people was all the more necessary for the free people of a sovereign state. Therefore the first Constituent Assembly was formed under the Independence Act, 1947 and was entrusted with two separate functions:2 •
To frame a Constitution for the country, and
•
To set as a Federal Legislative Assembly or Parliament until that Constitution came into effect.
The powers and functions of the central legislature under the Government of India Act, 1935, were conferred on the Constituent Assembly. The Constituent Assembly could, however, amend the Indian Independence Act, 1947 or the Government of India Act, 1935, and no Act of the Britis British h Parlia Parliamen mentt could could be extende extended d to Pakist Pakistan an withou withoutt legisla legislatio tion n by the Constit Constituent uent Assembly. The first Constituent Assembly originally consisted of 69 members; subsequently the number of members was increased to 79 (including 44 from East Bangal).3
[email protected]
03335199328
2
ESOLUTION OBJECTIVES R ESOLUTION The first big step in the framing of a constitution for Pakistan was taken by the Constituent Assembly on 12 March 1949, when it passed a resolution on the 'Aims and Objectives of the Consti Constitut tution ion',', popular popularly ly known known as the Object Objective ivess Resolut Resolution ion.. It laid laid the foundat foundation ion of the constitution and indicated the broad outline of its structure. The resolution was moved by Liaquat Ali Khan, the first Prime Minister of Pakistan.4 While moving the Resolution, he said:
2
Liaquat Ali Khan "Sir, "Sir, I consider this to be a most important occasion in the life of this country, next in importance only to the achievement of independence, because by achieving independence we only won an opportunity of building up a country and its polity in accordance with our ideals. I would like to remind the house that the Father of the Nation, Quaid-i-Azam, gave expression of his feelings on this matter on many an occasion, and his views were endorsed by the nation in unmistakable terms, Pakistan was founded because the Muslims of this sub-continent wanted to build up their lives lives in accor accordan dance ce with with the the teach teachin ings gs and and trad tradit itio ions ns of Isla Islam, m, becau because se they they want wanted ed to demonstrate to the world that Islam provides a panacea to the many diseases which have crept into the life of humanity today." today."5 The resolution was debated for five days. The leading members of the government and a large number of non-Muslim members, especially from East Bengal, took a prominent part. NonMuslim members expressed grave apprehensions about their position and role in the new policy.
[email protected]
03335199328
Hindu members of the Constitutio Constitutional nal Assembly Assembly argued argued that the Objectives Objectives Resolution Resolution differed differed with Jinnah's view in all the basic points. Sris Chandra Chattopadhyaya said: "What I hear in this (Objectives) Resolution is not the voice of the great creator of Pakistan - the Quaid-i-Azam, nor even that of the Prime Minister of Pakistan the Honorable Mr. Liaquat Ali Khan, but of the Ulema of the land." Birat Chandra Mandal declared that Jinnah had "unequivocally said that Pakistan will be a secular state." Bhupendra Kumar Datta went a step further: "...were these resolutions to come before this house within the life-time of the Great Creator of Pakistan, the Quaid-i-Azam, it would not have come in its present shape...."6
THE CONSTITUTION
OF
1956
2
After nine years of efforts, Pakistan was successful in framing a constitution in 1956. The Constituent Assembly adopted it on 29 February, 1956, and it was enforced on 23 March, 1956, proclaiming Pakistan to be an Islamic Republic. The Constitution was lengthy and detailed; it contained 234 articles divided into thirteen parts and six schedules. The Constitution of 1956 provided for federal system s ystem with the principle of parity between East Pakistan and West Pakistan. The Federal Legislature was to perform like the British Parliament. The Centre was invested with such powers as to take unilateral action in emergency and it could influence the provincial autonomy. The Consti Constitut tution ion of 1956 1956 provid provided ed for the parlia parliamen mentary tary form of governm government ent,, where where real real executive authority was vested in a cabinet, collectively responsible to the legislature. The cabinet was presided over by the Prime Minister. The Constitution declared that there would be only one house of parliament known as the National Assembly and equality between the two Wings (i.e. East Pakistan and West Pakistan) was maintained in it. The Governor General was replaced by a President, who was to be elected by an Electoral College comprising of members of the National Assembly and Provincial Assembly. Assembly. Familiar democratic rights and freedoms such as freedom of speech and expression, of assembly and association, of movement and of profession were all provided in the Constitution, with the usual qualifications. With regards to civil rights, familiar rights such as rights of life, liberty and
[email protected]
03335199328
property were granted, again with the usual qualifications and safeguards. The judiciary was given power to enforce the fundamental rights and the courts were to decide if a law was repugnant to any provisions of the fundamental rights. As per the Constitution, Urdu and Bengali were made national languages.7
ISLAMIC PROVISIONS •
IN THE
CONSTITUTION
OF
1956
The text of Objectives Resolution was repeated in the preamble of the Constitution of 1956 without any major change.
•
The name Islamic Republic of Pakistan was selected for the state of Pakistan.
•
All citizens of Pakistan were granted freedom to profess, practice and propagate any religion and the right to establish, maintain and manage religious institutions.
•
According to the directive principles, steps were to be taken to enable the Muslims of Pakistan individually and collectively to order their lives in accordance with principles in Holy Quran and Sunnah.
•
No law shall be enacted which is repugnant to the injunctions of o f Islam as laid down in the Holy Quran and Sunnah and that existing laws shall be brought into conformity with such injunctions. Whether a law was repugnant to Islam or not, would be decided by the National Assembly.
•
Only a Muslim could be qualified for election as President.
•
The Presid President ent should should set up an organi organizat zation ion for Islami Islamicc resear research ch and instru instructi ction on in advanced studies to assist in the reconstruction of Muslims society on a truly Islamic basis.
•
Teaching of the Holy Quran was to be made compulsory for Muslims.
•
The purchase and sale of alcohol was banned and prostitution was prohibited.
[email protected]
03335199328
2
•
No person should be compelled to pay any special tax, the proceeds of which were to be spent on the propagation of any religion other than his own.
•
The state should endeavor to strengthen the bonds of unity among Muslim countries.8
THE FIRST MARTIAL LAW
AND THE
ABROGATION
OF THE
CONSTITUTION
On 7 October 1958, President Iskandar Mirza staged a coup d'état. He abrogated the 1956 constitution, imposed martial law and appointed General Mohammad Ayub Khan as the Chief Martial Law Administrator and Aziz Ahmad as Secretary General and Deputy Chief Martial Law Administrator. Administrator. However, only three weeks later General Ayub Ayub -- who was openly openl y questioning the authority of the government prior to the imposition of martial law -- deposed Iskandar Mirza on 27 October 1958 and assumed the presidency that practically formalized the militarization of the political system in Pakistan.9
THE CONSTITUTION
OF
1962
President General Ayub Khan appointed a Commission on 17 February 1960 to report on the future political framework. The Commission was headed by the former Chief Justice of Pakistan, Mr. Mohammad Shahabuddin, and had ten other members, five each from East Pakistan and West Pakistan, composed of retired judges, lawyers, industrialists and landlords. The report of the Constitution Commission was presented to President Ayub on 6 May 1961 and thoroughly examined by the President and his Cabinet. In January 1962, the Cabinet finally approved the text of the new constitution. It was promulgated by President Ayub on 1 March 1962 and finally came into effect on 8 June 1962. The Constitution contained 250 articles divided into twelve parts and three schedules. As per the Constitution of 1962, Pakistan was renamed as 'Republic of Pakistan'. The word 'Islamic' was dropped in this constitution. The Constitution provided for federal system with the principle of parity between East Pakistan and West Pakistan. Both the provinces would run their separa separate te provin provincia ciall governm government ents. s. The respons responsibi ibilit lities ies and author authority ity of the centre centre and the
[email protected]
03335199328
2
provinces were clearly listed in the constitution. The Central Legislature had one house known as the Nation National al Assembl Assembly y. There There were were 156 members members of the Nation National al Assembl Assembly y. The equalit equality y between the two wings was maintained in it. The The Cons Consti titu tuti tion on of 1962 1962 prov provid ided ed Pres Presid ident entia iall form form of gover governm nment ent,, as oppos opposed ed to the the Parliamentary form of government under the 1956 Constitution. The President, who must be a Muslim not less than 35 years of age and qualified for election as a member of the National Assembly was to be elected indirectly by an Electoral College in accordance with the provisions outlined in the Constitution itself. The Electoral College formed by not less than 80,000 Basic Democrats (B.D.), equally distributed between the two provinces. Under the Constitution of 1962, if the number of candidates for election to the office of President exceeds three, the Speaker of the National Assembly was to convene a joint session of the members of the National and Provincial Assemblies to select only three candidates for election, the remaining candidates then would not be eligible. This screening was not applicable to a person who was holding the office of the President i.e. if the sitting President was also a candidate the number of candidates would be four. four. The term of the President was five years to act as Head of State as well as Chief Executive -solely responsible responsible for country's administration. administration. Governor and Minister Minister were appointed appointed and removed by him. He was eligible to promulgate Ordinances and veto against legislated laws only over overri ride de able able by twotwo-th thir irds ds of the the Nati Nation onal al Asse Assemb mbly ly.. Howe However ver,, the the Pres Presid iden entt was was not empowered to dissolve the Assembly except at the cost of his office also. On a charge of violating the Constitution or gross misconduct the President might be impeached by the National Assembly for which one-third of the total members of the National Assembly must give written notice to the Speaker for the removal of the President. The President was to be removed from office if the resolution for impeachment was passed by votes of not less than three-fourths of the total members of the Assembly. A significant feature of the impeachment procedure was that if the resolution for removal of the President fails to obtain one-half of the total number of members members of the National Assemb Assembly ly the movers of the resolution resolution would cease to be members of the Assembly Assemb ly.. There was no restriction of religion for a person holding the office of the Speaker of the National Assembly. Secondly, if the President resigns from his office or vote of no-confidence passes
[email protected]
03335199328
2
against him, then according to the Constitution the Speaker would act as the President of the State till the election of new President. Under these special circumstances, a non-Muslim might get the chance to be an acting President of Pakistan. The Constitution of 1962 provided for elections of Central and Provincial Legislatures for a term of five years. The members of the Assemblies were elected by the Basic Democrats. The National Assembly was exclusively empowered to legislate for the central subjects. However, it could legislate legislate on matters falling under provincial jurisdiction jurisdiction.. The power to impose taxes was laid laid with with the the cent centra rall legi legisl slat atur ure. e. The The Asse Assemb mbly ly had had to serv servee as a cour courtt in the the cases cases of impeac impeachme hment, nt, convict conviction ion or declar declaring ing the Presi President dent as incapac incapacita itated ted.. It could could amend amend the Constitution but with two-thirds majority. However, if President's veto was even over-ridden, he had the right to ask for the assent of the Electoral College. The procedure of the Provincial Assemblies was identical with that of the National Assembly. Assembly. Urdu and Bengali were recognized as national languages.10
Ayub Khan
ISLAMIC PROVISIONS
IN THE
CONSTITUTION
OF
1962
•
The preamble of the Constitution of 1962 19 62 was based on the Objectives Resolution.
•
The Constitution lay down simply that the state of Pakistan shall be a republic under the name of Republic of Pakistan. The word 'Islamic' was dropped in this Constitution. But when the National Assembly met in June 1962, there was a demand that the word 'Islamic' should be re-introduced. There was some justification for this demand. If Islamic provisions were to be maintained there was no reason why the republic should not be
[email protected]
03335199328
2
design designate ated d an Islam Islamic ic Republ Republic. ic. The first first amendme amendment nt (Decem (December ber 1962) 1962) theref therefore ore rectified this article. •
According to the principles of policy, steps were to be taken to enable the Muslims of Pakist Pakistan an indivi individual dually ly and collec collectiv tively ely,, to order order their their lives lives in accorda accordance nce with with the fundame fundamenta ntall princi principle pless and basic basic concept conceptss of Islam Islam,, and should should be provid provided ed with with facilities whereby they may be enabled to understand the meaning of life according to those principles and concepts.
•
No law shall be enacted which is repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah. 2
•
Only a Muslim could be qualified for the election as President.
•
Teaching of the Quran and Islamiyat to the Muslims of Pakistan was made compulsory. compulsory.
•
Proper organization of Zakat, Auqaf, and Mosques was ensured.
•
Practical steps were to be taken to eradicate what were seen as social evils by Islam, such as the use of alcohol, gambling, etc.
•
A novel Islamic provision in the 1962 Constitution had introduced an 'Advisory Council of Islamic Ideology' to be appointed a ppointed by the President. The functions of the Council was to make make recom recomme menda ndati tion onss to the the Gove Govern rnme ment nt as to means means whic which h woul would d enab enable le and and encourage the Muslims of Pakistan to order their lives in accordance with the principles and concepts of Islam and to examine all laws in force with a view to bring them into conformity with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.
•
There shall be an organization to be known as Islamic Research Institute, which shall be established by the President. The function of the Institute was to undertake Islamic Research and Instruction in Islam for the purpose of assisting in the reconstruction of Muslic society on a truly Islamic basis.
[email protected]
03335199328
•
The state should endeavor to strengthen the bonds of unity among Muslim countries.11
THE SECOND MARTIAL LAW, ABROGATION 12 THE NEW POLITICAL SITUATION
OF THE
CONSTITUTION
AND
The second martial law was imposed on March 25, 1969, when President Ayub Khan abrogated the Constitution of 1962 and handed over power to the Army Commander-in-Chief, General Agha Mohammad Yahya Khan. On assuming the presidency, General Yahya Khan acceded to popul popular ar demand demandss by abolish abolishing ing the one-un one-unit it system system in West Pakist Pakistan an and ordere ordered d general general elections on the principle of one man one vote. General Yahya's regime made no attempt to frame a constitution. The expectations were that a new constituent assembly would be set up by holding a free and fair election. In order to hold the proposed elections, President Yahya Khan promulgated a Legal Framework Order on March 30, 1970 1970 that that also also spelle spelled d out the fundament fundamental al princi principle pless of the propos proposed ed consti constitut tution ion and the structure and composition of the national and provincial assemblies. In December, 1970 elections were held simultaneously for both the national and five provincial assemblies. By any criteria, elections were free and fair. There was no interference from the government; it maintained strict neutrality showing no favor or discrimination for or against any political parties. The members of the ruling council of ministers were debarred from participation in the elections. There were no allegations of rigging of the elections as is often alleged in elections held in the countries of the third world.
[email protected]
03335199328
2
But the results of the first and the last general elections in united Pakistan were simply disastrous from the standpoint of national unity and demonstrated the failure of national integration. There was not a single national party in the country which enjoyed the confidence of the people of Pakistan, both east e ast and West Pakistan. Two Two regional parties -- the Awami Awami League (AL) under the leadership of Sheikh Mujibur Rahman in East Pakistan -- won 160 out of 162 seats allotted for East Pakistan. But in West Pakistan it could not secure a single seat and the percentage of votes secured by the Awami League in the four provinces of West Pakistan were: 0.07 (Punjab), 0.07 (Sindh) 0.2 (NWFP) and 1.0 (Baluchistan). The Pakistan People's Party (PPP) under the leadership of Zulfikar Ali Bhutto won 88 out of 144 seats for West Pakistan. But the PPP did not even dare to set up a candidate in East Pakistan. The remain remaining ing 57 seats seats of West Pakist Pakistan an were were shared shared by seven seven partie partiess and there there were were fiftee fifteen n independent candidates. The PPP emerged as the single largest party in West Pakistan with majorities in Sindh and the Punjab; and the National Awami Party (NAP) together with their political ally, Jamiat-ul Ulema-i-Islam (of Maulana Mufti Mahmood) JUI, got clear majorities in Baluchistan and the NWFP. None of the West Pakistani political parties, like the PPP, could win a single seat in East Pakistan. The religious question played little or no part in the elections. There can be no doubt that in East Pakistan the principles which won the consensus of opinion was the single basic ba sic notion of autonomy autono my.. The Awami League had fought the elections on the basis of their six point’s formula, which committed them to restructure the existing federal system in order to ensure maximum political autonomy for East Pakistan. Under this formula, only two portfolios -- Foreign Affairs and Defense -- would be retained by the central government. The PPP, on the other hand, was not willing to dilute the authority of the central government in-spite of assuring full provincial autonomy for all the provinces of Pakistan. The NAP and JUI coalition sided with the AL so that they might obtain maximum autonomy for their own provinces, i.e., Baluchistan and the NWFP. NWFP. The electi election on result resultss truly truly reflec reflected ted the ugly ugly politi political cal realit reality: y: the divisi division on of the Pakist Pakistani ani electorate electorate along regional lines and political political polarization polarization of the country between the two wings, East and West Pakistan. In political terms, therefore, Pakistan as a nation stood divided as a result of the very first general elections in twenty-three years of its existence.
[email protected]
03335199328
2
Thus the general elections of 1970 produced a new political configuration with three distinct centers of power: (i)
the AL in East Pakistan:
(ii) (ii)
the PPP in Si Sindh ndh and and the Punj unjab; ab; and and
(iii (iii))
The The NAP-J NAP-JUI UI in Baluc Baluchi hist stan an and the the NWFP NWFP. At the the top of all this this was the four fourth th center of power, the armed forces with their spokesman, Yahya Yahya Khan.
There were two major claimants of power: Sheikh Mujibur Rahman and Zulfikar Ali Bhutto. According to G W Chowdhury in his book 'The Last Days of United Pakistan', "both (the leaders) flourished on negative appeals to the illiterate voters of Pakistan, one by whipping up regional feeling against Punjabi domination and the other by whipping up militant national feelings against India. Neither had any constructive or positive approach"
13
Mujibur Rehman
was apparently more interested in creating a separate state for Bengalis, Bangladesh since he had no trust in the ruling elite of West Pakistan. Pakistan. On the other hand, Bhutto was more interested in getting power, no matter whether in a united or divided Pakistan. In fact he realized that in a united Pakistan, he had little chance of becoming either either prime prime minist minister er or presid president ent.. Accord According ing to GW Chowdhu Chowdhury ry,, "he realiz realized ed from from his discussions with Bhutto before and after the 1970 elections that if he had to make a choice between the two 'Ps (power or Pakistan), he would choose the former. He was more interested in gett gettin ing g a 21-gun 21-gun salute salute as the the head head of the the stat statee than than in the the main mainte tena nance nce of the the unit unity y of Pakistan."14 Negotiations were held between January and March 1971 between the two major regional leaders – Mujibur Rehman and Bhutto - and the ruling military government under President Yahya ahya Khan Khan.. But But the the trip tripar arti tite te negot negotia iati tion onss for for an agre agreed ed feder federal al or even even a confe confede dera rall constitution was a dismal and total failure. Under the Legal Framework Order, the President was to decide when the Assembly was to meet. Once assembled it was to frame a new constitution within 120 days or stand dissolved. On 13 February 1971, the President announced that the National National Assembly Assembly was to meet at Dacca on 3 March. By this time the differences differences between the main parties to the conflict had already alread y crystallized.
[email protected]
03335199328
2
On December 22, 1970 the Secretary of the Awami Awami League, Tajuddin Tajuddin Ahmed, claimed that his party having won an absolute majority had a clear mandate and was quiet competent to frame a constituti constitution on and to form a central central government on its own. Sheikh Mujibur Rehman declared on January 3, 1971 that his party would not frame a constitution on its own, even though it had a majority. He refused, however, to negotiate on the Six Points, saying that they were now public property and no longer negotiable. The crux of the conflict was that the majority party in the west, led by Bhutto, was convinced that a Federation based on the Six Points would lead to a feeble confederation in name only. At best it would lead to a feeble confederation and at worst it would result in the division of the country into two states. These fears were evidently shared by the military leaders in the west, including President Yahya Khan who had publicly described Sheikh Mujibur Rehman as the 'future Prime Minister of Pakistan' on January 14, 1971. Bhutto announced on February 15 that his party would not attend the National Assembly unless there was 'some amount of reciprocity' from the Awami League. Sheikh Mujib replied at a press conference on February 21, asserting that 'Our stand is absolutely clear. The constitution will be framed on the basis of the Six Points'. He also denied that the Six Points would leave the central government at the mercy of the provinces and contended that they were designed only to safeguard provincial autonomy. autonomy. On February 28, Bhutto demanded that either the 120-day limit for the national Assembly be removed or the opening session be postponed, declaring that if it was held on March 3 as planne planned, d, there there would would be a general general strike strike through throughout out West Pakist Pakistan. an. Presid President ent Yahya ahya Khan responded next day by postponing the Assembly meeting to March 25. The postponement of the Natio National nal Assembly Assembly came as a shatte shatterin ring g disill disillusi usionme onment nt to the Awam Awamii League League and their their supporters throughout East Pakistan. It was seen as a betrayal and as proof of the authorities of the West 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. The The Natio Nationa nall Asse Assemb mbly ly,, howev however er,, coul could d not not even even meet meet on Marc March h 25 due due to wide widesp spre read ad disturbances in East Pakistan where the army moved in on 26 March to control the situation. The
[email protected]
03335199328
2
civil disobedience movement later developed into a war of national liberation fully backed by the Indian army. As a result, Pakistani forces had to surrender to the Indian Army, and almost over 93,000 military personnel were taken as prisoners of war on December 16, 1971, thus ended an important era of the largest Muslim state, Pakistan. A new and smaller Pakistan emerged on 16 December 1971. Demor Demoral aliz ized ed and findi finding ng hims himsel elff unabl unablee to cont contro roll the the situ situat atio ion, n, Gene Genera rall Yahya ahya Khan Khan surrendered power to Bhutto who was sworn-in on December 20, 1971 as President and as the (first civilian) Chief Martial Law Administrator. Administrator.
2
THE CONSTITUTION
OF
1973 -- THE EXISTING CONSTITUTION
After gaining power, Zulfikar Ali Bhutto invited the leaders of the parliamentary parties to meet him on 17 October 1972, which resulted resulted in an agreement known as the 'Constitutional 'Constitutional Accord', Accord', after an intensive discussion. As per consultations floated by PPP, the National Assembly of Pakistan appointed a committee, of 25 members, on 17 April 1972, to prepare a draft of the permanent Constitution of Pakistan. Mohammad Ali Kasuri was the elected chairman of the Committee. On 20 October 1972, the draft bill for the Constitution of Pakistan was signed by leaders of all parliamentary groups in the National Assembly. A bill to provide a constitution for the Islamic Republic of Pakistan was introduced in the Assembly on 2 February 1973. The Assembly passed the bill unanimously on 19 April 1973 and endorsed by the acting President Zulfikar Zulfikar Ali Bhutto on 12 April 1973. The Constituti Constitution on came into effect from 14 August August 1973. On the same day, Bhutto took over as the Prime Minister and Choudhary Fazal-e-Elahi as the President of Pakistan. This constitution represented a compromise consensus on three issues: the role of Islam; the sharin sharing g of power power between between the federa federall govern government ment and the provin provinces ces;; and the divisi division on of respon responsib sibili ilitie tiess betwee between n the Presi President dent and the Prime Prime Minist Minister er,, with with a greatl greatly y strengt strengthene hened d position for the latter. latter.
[email protected]
03335199328
The Constitution provided for federal system. The Federal Legislature is to function like the British Parliament. In order to allay fears of the provinces concerning domination of the Centre, the constitution established a bicameral legislature with a Senate (the upper house), providing equal provincial representation, and a National Assembly (the lower house), allocating seats according to population. Islam has been declared as the State religion. The Constitution named Pakistan as the Islamic Republic of Pakistan. Only a Muslim could become the President or the Prime Minister of Paki Pakist stan an.. No law law repug repugna nant nt to Islam Islam shal shalll be enact enacted ed and and the the pres present ent laws laws shall shall also also be Islamized. The President must be a Muslim not less than 45 years of age, elected by members of Parliament. He is to hold office for a term of five years. The President could be removed by the resolution of parli parliame ament nt of not less less than than two-th two-third irdss of the total total member membershi ship. p. The Presi President dent could could issue issue ordinances when the Parliament is not no t in session. The President has the power of o f granting pardon and the right to be kept informed by the Prime Minister on all matters of internal and foreign policies.
Zulfikar Ali Bhutto The The Cons Consti titut tutio ion n sets sets-f -for orth th the the Parl Parlia iame ment ntary ary Syst System em of Gover Governm nmen ent. t. The The head head of the the Government, according to the Constitution, will be the Prime Minister. The Prime Minister and his Cabinet is accountable accountable to the National Assembly Assembly for his actions. The Prime Prime Minister Minister would be elected b y the majority of the National Assembly. Assembly. The Constitution of 1973 introduced a new institution known as the 'Council of Common Interests' consisting of Chief Ministers of the provinces and an equal number of Ministers of the Federal Government nominated by b y the Prime Minister. The Council could formulate and regulate
[email protected]
03335199328
2
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 innovation in the Constitution of 1973 is the establishment of a National Finance Commis Commissio sion n (NFC) (NFC) consist consisting ing of the Federa Federall and Provi Provincia nciall Financ Financee Minist Ministers ers and other other members to advice on distribution of revenues between the federation and the provinces. The The Prin Princi cipl ples es of Poli Policy cy inclu include dess Isla Islami micc way of life life,, promo promoti tion on of Local Local Gover Governme nment nt instituti institutions, ons, full participati participation on of women in national national life, protection protection of minorities, minorities, promotion 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 1973 Constitution, Fundamental Rights include security of person, safeguards as to arrest and detention, prohibition of slavery and forced labour, freedom of movement, freedom of associ associati ation, on, freedom freedom of speech, speech, freedom freedom to profes professs religi religion on and safegua safeguards rds to religi religious ous 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. Urdu is the national language.15
ISLAMIC PROVISIONS
IN THE
CONSTITUTION
OF
1973
•
The name 'Islamic Republic of Pakistan' is selected for the state of Pakistan.
•
Islam is declared as the state religion of Pakistan.
•
Steps shall be taken to enable the Muslims of Pakistan, individually or collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam.
•
Steps shall be taken to make the teaching of the Holy Quran and Islamiyat compulsory, to encourage encourage and facilitate facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran.
•
Proper organization of Zakat, Auqaf and Mosques is ensured.
[email protected]
03335199328
2
•
The state shall prevent prostitution, gambling and consumption of alcohol, printing, publication, circulation and display of obscene literature an d advertisements.
•
Only a Muslim could be qualified for election as President (male only) and Prime Minister (male or female). No restriction as to religion or gender on any other post, upto and including provincial governor and Chief Minister. Minister.
•
All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah and no law shall be enacted which is repugnant to such injunctions.
•
A Council of Islamic Ideology shall be constituted referred to as the Islamic Council. The functions of the Islamic Council shall be to make recommendations to Parliament and the Provin Provincia ciall Assembl Assemblies ies about about the ways and means means of enabli enabling ng and encoura encouragin ging g the Muslims of the Pakistan to order their lives in accordance with the principles of Islam.
•
The President or the Governor of a province may, or if two-fifths of its total membership so requires, a House or a Provincial Assembly shall, refer to the Islamic Council for advice on any question as to whether a proposed law is or is not repugnant to the injunctions of Islam.
•
For the first time, the Constitution of Pakistan gave definition of a Muslim which states: 'Muslim' means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophet hood of Mohammad [PBUH], the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Mohammad.
•
The state shall endeavor to strengthen the bonds of unity among Muslim countries.
•
The Second Amendment (wef 17 September 1974) of the 1973 Constitution declared for the first time the Qadianis or the Lahoris as non -Muslims, and their leader, Mirza Ghulam Ahmed Qadian, who had styled himself as a so-called prophet of Islam, as a fraudster and imposter Nabi.16
[email protected]
03335199328
2
COMPARISON
WITH
PREVIOUS CONSTITUTIONS
With regard to provincial rights the 1973 constitution was in fact the most centralized 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 constituti constitution on reduced that number to 49, and this was retained in the 1962 constitution. constitution. In 1973, however, it was then enlarged to 114.
PREAMBLE
OF THE
1973 CONSTITUTION (EXISTING CONSTITUTION )
"Whereas sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the people peo ple 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 Wherein the State shall exercise exercise its powers and authority authority through the chosen representati representatives ves of the people Wherei Wherein n the princi principle pless of democra democracy cy,, freedo freedom, m, equalit equality y, tolera tolerance nce and social social justic justice, e, 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 practice 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;
[email protected]
03335199328
2
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 honored place amongst the nation nationss of the Worl World d and make make their their full full contrib contributi ution on toward towardss interna internatio tional nal peace peace and progress and happiness of humanity: Now, Now, therefore, we, the people of Pakistan, 2
Cognizant of our responsibility before Almighty Allah and men; Cognizant of the sacrifices made by the people in the cause of Pakistan; Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice; Dedicated Dedicated to the preservation preservation of democracy democracy achieved by the unremitting unremitting struggle 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."
[email protected]
03335199328
2
EFERENCES R EFERENCES
[email protected]
03335199328
1
http://www.pakistani.org/pakistan/constitution/part3.ch2.html
2
http://www.na.gov.pk/hist http://www.na.gov.pk/history ory.htm .htm The Parliamentary History
3
http://www.na.gov.pk/hist http://www.na.gov.pk/history ory.htm .htm The Parliamentary History
4
http://www.storyofpakistan.com/articletext.asp?artid=A054 http://ghazali.net/book1/chapter_3.htm Islamic Pakistan
5
6
http://ghazali.net/book1/chapter_3.htm Islamic Pakistan
7
ARCHIVES: 1956 (Preamble)
8
Pakistan Affairs, Affairs, Gul Shahzad Sarwar
9
http://ghazali.net/book1/chapter_4.htm
10
Pakistan Affairs Affairs by Gul Shahzad Sarwar
11
Pakistan Affairs Affairs by Gul Shahzad Sarwar
12
http://ghazali.net/book1/chapter_5.htm Islamic Pakistan
13
http://ghazali.net/book1/chapter_5.htm & The Last Days of United Pakistan by G W Chowdhury
14
The Last Days Da ys of United Pakistan by G.W. Chowdhury
15
http://www.pakistani.org/pakistan/constitution/
16
Part IX: Islamic Provisions
