STUDY GUIDE

BS Pakistan Studies

CONSTITUTI ONAL
DEVELOP MENTS: THE
POLITICS OF AMENDMENTS

Code: 9373 Units: 1–9

Department of Pakistan Studies

Faculty of Social Sciences & Humanities
Allama Iqbal Open University Islamabad

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Publisher: ............................................ Allama Iqbal Open University, Islamabad.

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 COURSE TEAM
Dean/ Chairman Course Team: Prof. Dr Abdul Aziz Sahar

Chairperson: Dr. Samina Yasmeen

Course Team: Dr. Samina Yasmeen

Dr. Muhammad Sajid Khan
Mr. Malik Akhtar Hussain
Dr. Khalid Mehmood

Course Development Coordinator: Dr. Muhammad Sajid Khan

Writers: Dr. Muhammad Sajid Khan

Dr. Misbah Umar

Dr. Tahir Hussain

Reviewers:
Dr. Muhammad Abrar Zahoor
Dr. Zafar Mohyuddin
Dr. Farooq Ahmad Dar
Dr. Misbah Umar
Dr. Abdul Basit Mujahid
Editor: Fazal Karim

Title Designer:

Composer:

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 CONTENTS
Page #
Structure of the Course ................................................................................. vii

Guideline to Study Material…………………………………………………… vii

Introduction to the Course............................................................................ x

Objectives of the Course ............................................................................... xi

Course Outline.............................................................................................. xiii

Unit–1: Dismemberment of Pakistan .............................................. ………..15

Unit–2: The Framing of the Constitution ................................................ 29

Unit–3: Important Parts and Chapters of the Constitution……………... 46

Unit–4: Fundamental Rights ..................................................................... 69

Unit–5: The Judicature ............................................................................. 90

Unit–6: Amendments in Bhutto Era ......................................................... 102

Unit–7: Amendments from 1984 to 1993……………………………..….. 116

Unit–8: Amendments from 1997 to 2008 ………………………... 130

Unit–9: Amendments from 2009 to date ................................................... 139

Bibliography .......................................................................................... …… 158

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 STRUCTURE OF THE COURSE
A three-credit-hour course consists of nine units. The coursework of one unit will include
the study of compulsory reading material and suggested books. It would help if you made a
timetable for studies to complete the work within the allocated time.

Every course has a study package including compulsory reading material and suggested
readings. For the books suggested at the end of each unit, you can visit a nearby
library/study ercenter or the Central library at the main campus in AIOU.

GUIDELINES TO STUDY MATERIAL

For a course, you are required to prepare yourself to get the maximum benefit of it. You are
required to follow the following steps.

Step 1
Go through the:
[Link] Outline
[Link] Introduction
[Link] Objectives
[Link] of the Course
[Link]
[Link] Books
[Link] Readings

Step 2
Read the whole unit and make notes of those points which you could not fully understand
or wish to discuss with your teacher.

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Step 3
Go through the self-assessment questions at the end of each unit. If you find any difficulty
in comprehension or locating relevant material, then discuss it with your teacher.

Step 4
Read thoroughly, the study guide and course outline. In case any explanation is needed
regarding the comprehension of the text, consult your teacher.

Step 5
First, read the entire assignments you are required to do for this course. Highlight all the
points that you find difficult to tackle, and then discuss them in detail with your teacher.
This exercise will save you from a lot of trouble and ensure good results.

Assessment
For each course, you will be assessed as follows:
 2 Assignments (continuous assessment).
 Final Examination (three-hour written examination will take place at the end of the
semester)
 Workshop
 Quiz

The condition to qualify each component is given below:

1. A minimum of 50% in each assignment.
2. A minimum of 50% of the final written examination.
3. An aggregate of 50% of both the components i.e., assignments and final examination
is required to pass the course.
4. The assignment is compulsory for the appearance in the final examination.

Assignments
 Assignments are written exercises that are required to be completed at your own home
or place of work after having studied different parts of the suggested reading material
within the scheduled period of study. (See the assignments scheduled).
 For this course, you will receive 02 assignments in the mailing package. You are
advised to complete your assignments within the provided schedule.
 This is compulsory course work, and its successful completion will make you eligible
to take the final examination at the end of the semester.
 To qualify for each assignment, you need to obtain a minimum of 50% marks.

Workshop
 An online workshop for each course is mandatory to attend.

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Revision before the Final Examination
You must revise as systematically as you have been studying.
You may find the following suggestions helpful.
 Go through the course unit one by one, using your study notes to remind you of the
key topics, concepts or theories. If you have not already made notes, do so now.
 Note the key terms associated with each topic.
 Go through your assignments, and test yourself on each of the main topics, writing
down the main points or revising them verbally.
 Make sure to attend the workshops and discuss all the points that you find difficult to
comprehend.
 Try to get together with a small group of fellow students. Each person revises his
topics intensively and, then in a group session summarizes them for the other
members, who should raise queries and questions. This approach will make your
studies interesting and provide you with an opportunity to revise thoroughly.
 The paper in the final exam will be on the pattern of questions given at the end of
each unit.
 Before your final exams, make sure
 You get your roll number slip,
 You know where the examination centre is,
 You know the date and time of the examination.

Note:
 You can get information regarding your assignments, workshop Schedule,
Assignment results
 and final examination from the AIOU website: [Link].
 You are advised to regularly visit the university website to update yourself about the
activities of the university.

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 INTRODUCTION TO THE COURSE

The course Constitutional Development: The Politics of Amendments (9373) deals with the
political and constitutional history of Pakistan. After a long struggle and tragic episode of
dismemberment of the state due to constitutional and political crisis, Pakistan finally
adopted a sustainable constitutional document in 1973. After its adoption, that constitution
faced many challenges, two dictators after the imposition of martial law suspended and
afterward partially modified it through amendments. In 2010 the democratic forces
successfully revived the original constitution through the 18th amendment. So far, twenty-
six constitutional amendments have been introduced in this longest surviving constitutional
document. This course attempted to understand the political and constitutional dynamics of
these amendments and their political and constitutional implications on the structure of the
state and polity of Pakistan.

Pakistan witnessed a chequered constitutional history. The first two constitutions, i.e. 1956
and 1962 were abrogated shortly. The 1973 Constitution was suspended twice by two
military dictators, but it survived with many alterations and restructuring through
constitutional amendments. Bhutto assumed Power as Civilian Chief Martial Law
Administrator after the dismemberment of Pakistan. The ruling coalition enjoys a numerical
majority of 110 members in the House of 146. Bhutto‘s regime appointed 25 members of
the constitutional Committee, including six members from the opposition side on 17 April
1972. A national consensus emerged that the future constitution would be federal
Parliamentary with maximum Provincial autonomy. The office of the Prime Minister was
empowered substantially. While the office of the President was reduced to constitutional
head of state with symbolic powers. Pakistan adopted a bicameral legislature, the upper
house Senate, as the House of Federation and the Lower House, the National Assembly as
the House of People.

The opposition and Islamic Parties insisted on more democratic and Islamic provisions, and
most of the demands were accommodated through prolonged negotiations ultimately

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resulting in national consensus and the constitutional draft was adopted on 10 April 1973. It
was decided that a new constitution would be promulgated on 14 August 1973.

After the succession of East Pakistan, the political parties were reluctant to recognize the
state of Bangladesh due to political implications. The regime availed the occasion of the
second OIC summit, through, the first amendment in the constitution, it extended
recognition to Bangladesh to facilitate its participation in the summit. Article 1 of the
constitution was amended and clause 2 was deleted.

The second amendment deals with the more sensitive Ahmadiyya question, which emerged
as a potential fault line and destabilizing agent due to its immense agitational potential.
Islamist parties previously exploited that problem in the 1953 agitation. On 29th May 1974
Rabwah incident sparked that agitation again. Bhutto brought that issue to parliament and
after a heated closed-door debate, the Assembly adopted a second amendment in September
1974. The amendment added clause 3 to Article 260 and declared that a person should be
treated as non-Muslim, who does not believe in the absolute and unqualified finality of
Prophethood of Muhammad (PBUH). While the Article 160 was amended, and the
Ahmadiyya Community was included in the list of minorities.

Bhutto‘s regime gradually lost its democratic credentials and adopted more repressive
strategies to crush the political opponents .The regime introduced the third, fourth and fifth
amendments to increase the detention powers, to curtail the Judicial powers. The opposition
Party NAP (National Awami Party) faced a ban through the Supreme Court‘s verdict. The
fifth and sixth amendment also deal with the issue of the appointment of a Chief Justice and
the age of retirement. In a surprise move, Bhutto dissolved Assemblies and decided to hold
fresh elections in March 1977. Most of the opposition parties joined hands and created
PNA (Pakistan National Alliance). Unfortunately, the democratic regime failed to hold free
and fair elections. The opposition alliance leveled charges of massive rigging and boycotted
the provincial elections. The opposition resorted to mass agitation and the government
adopted a repressive strategy. The political deadlock persisted, despite a round of
negotiations due to mistrust between political leadership. Bhutto decided to introduce the
7th amendment in the constitution on 16 May 1977. It provided the option of the
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referendum as a demonstration of people‘s support for the Prime Minister Minister. The
opposition rejected that option and insisted on fresh elections.

The military Junta under Zia emerged as the beneficiary of political polarization and
imposed a draconian martial law. Although Zia assumed power as a transnational regime
with the promise of elections within 90 days ultimately elections were held after 90 months
in February 1985. He claims that the party less managed electoral exercises facilitated the
restoration of democracy. As a bargaining chip, he decided to introduce the most
controversial 8th amendment. It largely transformed the political and constitutional
structures, and 65 articles were amended or modified.

The office of the president was empowered at the cost of the office of Prime Minister and
Parliament. The president acquired the power through article 58 (2B) to dismiss the
government and dissolve the Assembly. Many other constitutional restructurings be
introduced including articles 62 and 63. Subsequently, the powerful president effectively
derailed the democratic process, and four elected regimes were dismissed prematurely at
the behest of the powerful establishment. Except in the case of Nawaz Sharif‘s dissolution
in 1993 Judiciary endorsed the president‘s decision and extended judicial legitimacy.

Zia regime introduced the ninth amendment to impose Shariah law as the Supreme law.
The Bill was adopted by the Senate and not approved by the National Assembly. Later,
Nawaz‘s regime also introduced the Shariah bill as the 15th amendment, but it failed to
receive legislative approval in 1997. The 10th amendment was introduced to lessen the
interval between sessions of parliament. While the 11th amendment was introduced to
revise women‘s representation in National and Provincial Assemblies. Afterward, in
August 1992 the amendment was withdrawn. The Nawaz regime introduced the 12th
amendment for the creation of special speedy courts for the trial of heinous soffenses for a
period of three years.

After the repeated dismissal of elected governments, the democratic forces decided to
remove article 58 (2-B) through the 13th amendment. Nawaz Sharif received two two-thirds
majority in the 1997 elections, and even his adversary Benazir Bhutto extended support to

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punish President Farooq Leghari by striping his power. Nawaz regime also introduced the
amendment to block defecations from the party. It proposed disqualification of the
defecated party members. Although the amendment was introduced to create political
stability and check defection at the behest of the establishment, it effectively shrinks the
internal democracy within the parties and space for dissident voices.
th
The introduction of the 15 amendment further cemented the impression that Nawaz Sharif
wanted absolute power and through the imposition of the shariah bill, he was aspiring for
the position of Amir-ul-Momineen. The 16th amendment was introduced in 1999 to extend
the quota system for forty years instead of the original twenty years.

Musharraf adopted the strategy of his predecessor for the restoration of the democratic
process through electoral management in favor of the King‘s party. After the 2002
elections, it bargained with political leaders and introduced the 17th amendment to the
constitution. The semi-presidential, system of the Zia era has largely been restored with a
number of structural and constitutional engineering. So, our cyclical journey on the
democratic path again reached its point zero. The democratic forces signed the Charter of
Democracy in 2006 to restore the original constitutional structure of 1973. After the
electoral victory of the 2008 elections by the democratic forces, a twenty-eight members
Constitutional Reform Committee was constituted under the leadership of Raza Rabbani,
with representation from all parliamentary political forces. The committee created a
national consensus and radically altered the constitution with 101 amended articles. It
restored parliamentary supremacy. It introduced Provincial autonomy, political and
economic decentralization, and the creation of a more democratic and participatory
federation. The amendment strengthened the democratic forces and most of the
constitutional and legal loopholes were plugged.

The newly restored and empowered Judiciary under Iftikhar Chaudhary raised objections
regarding the process of appointment of the Judges in the Supreme Court and High Courts.
The Judiciary‘s concerns were addressed and accommodated through the 19th amendment.
The parliamentary oversight regarding the appointment of Judges was compromised and
the Judicial commission was empowered regarding the appointment of the Judges. The 20 th

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and 21st amendments were introduced in 2012 and 2016 for the reconstitution of the
Election Commission of Pakistan through mutual consultation between democratic forces.
It also empowered the ECP to conduct free and fair elections. The technocrats were allowed
to become chief Election Commission and members of ECP.

The 21st amendment was introduced in 2015 for the establishment of military courts for the
trial of terrorists. The 23rd amendment further extended the term of military courts for two
years. After the 2017 census report, the representation in the National Assembly was
revised through the 24th constitutional amendment according to shifting demographic
trends. The 24th and 25th amendments deal with the merger of FATA in KP and
reallocation of reserved seats for ex-FATA and the reconstitution of the provincial
assembly of KP.

In a nutshell, most the constitutional amendments were introduced to resolve some

constitutional and legal ambiguities while some of the amendments with long term
implications radically transformed the constitutional structure of Pakistan and some others
were introduced to reverse, these alterations and constitutional restructurings.

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 COURSE OBJECTIVES

After the completion of this course, you will be able to;

1. Have a comprehensive understanding of Pakistan‘s constitutional evolution through

a historical and legal lens

2. Learn about the major constitutional amendments, their political motivations, and

their implications for governance, judicial independence, and the balance of power.

3. Examine the impact of legal cases and socio-political dynamics on the development

of the constitution, encouraging critical analysis of the interplay between law,

politics, and society.

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 COURSE OUTLINE

Unit 1:Dismemberment of Pakistan

 Breakdown of the System
 Dismemberment and Attempt at Salvage
 End of Military Rule and the Rise of Bangladesh
 Civilian Martial Law
 Asma Jilani Case

Unit 2:The Framing of the Constitution

 Interim Constitution of 1972
 Efforts for Consensus Building
 Constitutional Consensus
 Consensus: Myth or Reality
 Basic Features of 1973 Constitution
Unit 3:Important Parts and Chapters of the Constitution
 Part I Introductory
 Part II Chapter 2 Principles of Policy
 Part III Federation of Pakistan, President, Parliament
 Part IV Provinces
 Part VII The Judicature
 Part VIII Elections
 Part IX Islamic Provisions
 Part X Emergency Provisions
Unit 4:Fundamental Rights
 Supremacy of Fundamental Rights
 Article 4: Right of Individual to be dealt with in Accordance with Law
 Right to Life and Liberty
 Security, Safeguard, Fair Trial and Due Process
 Protection against Slavery, retrospective punishment, double punishment and
self-incrimination
 Inviolability of dignity of man
 Freedom of movement, assembly, association, trade, business or profession,
speech, religion and information
 Safeguard against taxation for purposes of any particular religion and safeguards
as to educational institutions in respect of religion
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  Right to property and Education
 Equality and non-discrimination
 Preservation of language, script and culture

Unit 5: The Judicature

 The Courts
 Supreme Court of Pakistan and its Powers
 Articles 189 and 190
 High Courts and their Powers
 Federal Shariat Court and its Powers

Unit 6:Amendments in the Bhutto Era

 Amendment of the Constitution (Articles 238 and 239)
 First Amendment
 Second Amendment
 Third Amendment
 Fourth Amendment
 Fifth Amendment
 Sixth Amendment
 Seventh Amendment

Unit 7: Amendments from 1984 to 1993

 Nusrat Bhutto Case
 Eighth Amendment
 Ninth Amendment
 Tenth Amendment
 Haji Saifullah Case
 Eleventh Amendment (20 Women Seats)
 Twelfth Amendment (Special Courts)
 Ahmed Tariq Rahim Case
 Nawaz Sharif Case

Unit 8: Amendments from 1997 to 2008

 Thirteenth Amendment (Reversing Eighth Amendment)
 Fourteenth Amendment (Outlawing Floor Crossing)
 Fifteenth Amendment (Enforcement of Shariah)
 Sixteenth Amendment (20 Years Extension in Special Quota)
 Zafar Ali Shah Case
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  Seventeenth Amendment (Restoring Eighth Amendment and Legalizing
Musharraf‘s Acts)
 Dismissal of The Chief Justice
 November 2007 PCO
 The Lawyer Movement for the Restoration of Judiciary in Pakistan

Unit 9:Amendments from 2009 to date

 PCO Judges Case
 Eighteenth Amendment (Reversing Seventh Amendment and Devolving
Powers)
 Munir Hussain Bhatti and Sindh High Court Bar Case
 Nineteenth Amendment (Appointment of Judges)
 Imran Khan Case
 Twentieth Amendment (Protecting By-Elections)
 Twenty-first Amendment (Military Courts)
 District Bar Association, Rawalpindi Case
 Twenty-Second Amendment (Chief Election Commissioner Powers)
 Twenty-Third Amendment (Extension of Military Courts)

xvii
Unit 1

Dismemberment of Pakistan

Written by: Dr. Muhammad Sajid Khan

Reviewed by: Dr. Muhammad Abrar Zahoor

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 CONTENTS
Page #
Introduction .............................................................................................. 17

Objectives and Learning Outcomes ............................................................ 17

1. Breakdown of the System…………………………………………. 19

2. Dismemberment and Attempt at Salvage…………………………. 23
3. Civilian Martial Law……………………………………………… 26
4. Asma Jilani Case…………………………………………………. 27

Self-Assessment Questions ........................................................................... 27

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INTRODUCTION Comment [FK1]: Please provide unit-wise
CONTENTS of each units (1-9)
The creation of Pakistan in 1947 was founded on the Two-Nation Theory, uniting diverse Comment [SK2]: Unit wise contents have been
provided in all nine units
cultural, linguistic, and ethnic groups under a shared Muslim identity. However, the
geographical, economic, and political disparities between East and West Pakistan soon
began to strain this unity. East Pakistan‘s distinct linguistic, cultural, and political identity
led to rising tensions, further exacerbated by perceptions of economic exploitation and
underrepresentation in governance.
This unit investigates into the events that culminated in the dismemberment of Pakistan in
1971, focusing on the breakdown of the system, the rise of Bengali nationalism, and the
subsequent creation of Bangladesh. Key developments, including the establishment of
Civilian Martial Law and the landmark Asma Jilani Case, are analyzed to understand their
implications for Pakistan‘s political and constitutional history.

OBJECTIVES
After the study of this unit, you will be able to:
1. Trace the historical, political, and economic factors that led to the dismemberment of
Pakistan.
2. Examine the role of Bengali nationalism and its assertion of a separate identity.
3. Analyze the 1970 elections and their role in intensifying East-West political rifts.
4. Evaluate the legal and constitutional significance of the Asma Jilani Case.

LEARNING OUTCOMES
After the study of this unit, you will be able to:
1. Explain the historical and ideological underpinnings of the Two-Nation Theory and
its challenges post-1947.
2. Identify key factors contributing to the separation of East Pakistan, including
economic disparities, political alienation, and cultural differences.
3. Assess the role of key political events, such as the 1970 elections and the military
crackdown of March 1971, in shaping the conflict.

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4. Critically evaluate the Asma Jilani Case and its implications for Pakistan‘s judiciary
and constitutional history.
5. Reflect on the lessons learned from the dismemberment and its implications for
national unity and governance.

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Breakdown of the System

The state of Pakistan was created based on two nation theory. The Muslim identity served
as a binding force among the culturally, linguistically and ethnically diverse regions. The
ideologically driven state comprised two distinct geographical zones of West Pakistan and
East Pakistan. Bengal had maintained to some extant its distinct identity in the subcontinent
for centuries and asserted its racial, linguistic, political and regional identity which had
manifested in the establishment of regional autonomous political dynasties that resisted the
central authority in Medieval India. The distinct geographical location of Bengal had
played a vital role in forming and flourishing of this identity.

The partition of Bengal in 1905 had proliferated not only the Indian nationalism, but it had
also started a new process of identity formation which cracked the existing nationalist
construct. The xenophobia against the British had transformed into a new shape of
xenophobia in the Bengali Muslim elite against the domination of Hindu classes and
achieved its geographical manifestation in Eastern Bengal against the domination of
Western Bengal. The xenophobia and geographical location had played a significant role in
the assertion of Bengali Muslim‘s ‗self-hood‘ against the ‗other hood‘ of Hindus.

The asymmetrical position which had clearly manifested in the economic and political
marginalization of Muslims in United Bengal had further sharpened the Bengali Muslim
elite‘s consciousness of self-hood, and their xenophobia had pushed and hard-pressed them
to join the ranks of Muslim nationalists and their emerged as the forerunner of the demand
of Muslim separate homeland. This convergence of regional interest in a trans-regional
alliance with its inherent contradiction had pushed the Bengali Muslim elite in the ranks of
the All India Muslim League. Suhrawardy and Abul Hashim launched a radical campaign
of political recruitment for AIML in the 1940‘s, the Bengal Muslim League membership
exceeded the membership of all other provincial Leagues of India.1

1
Rizwan Kokab and Masarrat Abid, ‗A Factor in East Pakistan‘s Separation: Political Parties or
leadership‘, Pakistan Vision, 14, no. 1 (June 2013) (Lahore: Pakistan Study Center), 11.
19
The shared Hindu xenophobia of the Muslim political elite of both regions was transmitted
and penetrated in the minds of the Muslim franchise and they voted in the favor of Muslim
League in 1946, which paved the way for the establishment of a Muslim separate state with
two distinct geographical units in East and West of India with Muslim numerical majorities.
After the achievement of the primary objective of deliverance from Hindu domination the
inherent contradictions of this constructed ‗self-hood‘ surfaced and were contested in
different spheres of the newly crafted power structure in Pakistan. Bengali Muslim
leadership extended support to the idea of Pakistan for regional autonomy, as Abul Hashim
perceives that Pakistan would be a ―socially just‖ state, with equal opportunities and
freedom from economic exploitation, a ―people‘s Pakistan‖.2

The Bengali language had emerged as the first strong identity marker of separate racial and
national identity. The construction of Bengalis ‗self-hood‘ was further facilitated by the
geographical and cultural disparities, representation in political and administrative
structures and resource distribution in the new state. The Bengali political elite had
exploited the socio-economic backwardness and under representation of Bengalis in state
institutions. They had propagated that Bengal‘s political and economic marginalization and
backwardness were due to the West Pakistan‘s domination and their resource exploitation
of the East. Later on, Punjab was singled out and declared as the major culprit of the
miseries of the East Bengalis.

The Muslim League was portrayed as the agent of West Pakistan‘s domination and its
Bengali leaders and other collaborators were declared as the stooges of West Pakistan or
Punjab. To defeat the Muslim League in the East Pakistan election in 1954, a United Front
of Bengali parties with divergent ideological orientations like Ganatantri Dal, a leftist
3
party, and Nizam-i-Islam a religious party emerged due to xenophobia of West Pakistan.
The result of the elections also undermined the representative character and legitimacy of
the Constituent Assembly of Pakistan. The members of the Constituent Assembly of

2
Neilesh Bos, ‗Purba Pakistan Zindabad: Bengali Visions of Pakistan, 1940-1947‘, Modern Asian
Studies, 48, part 1, (January 2014) (United Kingdom: Cambridge University Press, 2014), 21.
3
Ibid., 33.
20
Pakistan from East Pakistan had lost legitimacy and representative character due to the
clear verdict of the Bengali franchise.

The establishment of One Unit was also a xenophobic response of West Pakistan against
the perceived domination of East Pakistan due to its majority population and on the other
side it had further increased the East wing xenophobia with the perception of the
establishment of One Unit was to deprive them of their democratic rights.4 The concept of
‗parity‘ between two wings in representative institutions further deep-rooted this mutual
mistrust and widened the gulf and promoted hatred between the two wings. The separate
electorate was also considered as the WWest WWing‘s other tool to reduce their majority.
The Bengali elite was concerned to counterbalance the Western domination in
administrative structures of the state, where they were a distinct minority through the
majority in representative political institutions, but their bid was foiled due to the close
nexus of the Western political elite and the civil-military establishment.

The 1956 Constitution was adopted by the Assembly despite of the walkout of Awami
League and other opposition parties from East Pakistan, which strained the relationship
between the two wings. Iskandar Mirza and Ayub Khan imposed Martial Law because they
considered the election a dangerous exercise in the existing political situation in 1958. 5 The
military dictatorship of Ayub Khan had increased the sense of political alienation, and the
process of industrialization further aggravated their sense of deprivation and exploitation.
The politicization of Bengali grievances was accelerated.

Although the Bengali sense of deprivation, exploitation and victimization was acute in
political and economic spheres and the real issues were in these spheres. But the Bengali
language emerged as a symbolic identity maker and it served as a toll of assertion and as
well the tool of exclusion of others, like the Biharis‘ exclusion from Bengali nationalism,
although they had shared economic deprivations.

4
Yasmin Saikia, Women, War and the Making of Bangladesh: Remembering 1971 (New York:
Oxford, 2011), 46.
5
Zaheer, The Seperation of East Pakistan, 73.
21
Mujib-ur-Rehman founded the East Pakistan Student League in the first week of January
1948, and it emerged as a front-line organization in agitation. The 1952 riots were depicted
as oppression of the West wing through police and heroic resistance of Bengalis, and the
first martyrs of Bengali national movement.6 The supporters of the Bengali language staged
a protest and the police opened fire on the Bengali demonstrator on 21 February, 1954,
several were killed. A Shaheed Minaar (Martyr‘s Monument) was erected at the site of the
firing to commemorate the Bengali resistance against West Pakistan domination and day
was celebrated every year. The reaction was so strong that it changed East-West relations
and wiped out the Muslim League in the March 1954 Elections. The ruling Muslim League
secured only 9 seats of the total Muslim seats of 237 in a house of 309 members.7

Feroz Ahmad also claimed that ―with the intensification of economic exploitation and
political repression, Bengali nationalism also grew more virulent, clouding the class issues
and leading toward a generalized hatred of West Pakistanis.8 At the time of independence,
East Pakistan‘s GDP was 13,130 million Rupees, while West Pakistan‘s GDP was 11,830
million Rupees. But in the post-independence phase West Pakistan due to the concentration
of resources outclassed the East Pakistan and in 1968-69 East Pakistan‘s GDP was 20,670
million while West Pakistan's GDP was 27,744 million Rupees. East Pakistan had a better
literacy rate with more college and university graduates as compared to West Pakistan in
1947, but later on due to the low pace of development in the East wing and limited resource
allocation to West Pakistan‘s monopoly in these spheres, was deeply resented by Bengalis.9

After Ayub‘s decade of development economic disparity increased between the two wings
and the GDP of the West Wing was 30% more as compared to the East Wing and
difference in per capita income was 62% and the average standard of living was 126%
better in West Pakistan. This relative marginalization in the sphere of economic
development was considered colonization and resource exploitation of East Pakistan. 10

6
Sission, War and Secession, 9.
7
Zaheer, The Seperation of East Pakistan, 27.
8
Feroz Ahmad, Ethnicity and Politics in Pakistan (Karachi: Oxford, 1998), 30.
9
Ibid., 15-16.
10
Ibid., 23-24.
22
The political and economic deprivation of East Bengali‘s elite and middle class was related
to the resource exploitation by the West. The floods of 1970 further added fuel to existing
grievances and deprivation was politicized and manifested in election results. This natural
calamity offered a promising opportunity to Awami League which efficiently capitalized on
it and out-classed its local political rivals and secured a landslide electoral victory in
subsequent elections.

After the floods of 1970, the relief activities were politicized due to the massive
propaganda of the Awami League which further complicated the situation. East Pakistanis
considered that West Pakistan‘s response was insufficient during the disaster which further
magnified their perception of the insensitivity of the West Pakistani elite to the welfare and
interest of Bengalis.‖ Maulana Bhashani demanded ―complete financial autonomy‖ and
even threatened the separation of the East wing.11 The 1970s floods further weakened the
already fragile national bond and sharpened the sense of deprivation in Bengalis and
strengthened the political support base of Awami League and discredited the administrative
machinery of the state under the domination of West Pakistan.

Dismemberment and Attempt at Salvage:

The 1970s Elections fundamentally altered the political landscape of Pakistan and radically
shattered the existing elite power structure. The mass political mobilization and active and
excessive engagement of the political elite with the masses changed the dynamics of the
power structure.12 The excessive provincialization of the party system in the absence of a
single national representative political party widens the gulf between the East and West
wings particularly. The politicians from East and West wings emerged as the political
rivals, and the masses were deeply politicized through mass mobilization in pre and post--
election scenarios. The East-West political divide further accelerated the process of
assertion of the identity in Bengal which started in the 1947 partition and culminated in the
1971 partition.

11
Rose and Sission, War and Secession, 30.
12
Ibid., 273.
23
The 1970s Elections were proved as the culmination of this process of political
manifestation of this Bengali racial identity. It was effectively transmitted in the minds of
the Bengal. The Awami League under the firebrand leadership of Sheikh Mujib-ur-Rehman
had secured a landslide victory in East Pakistan. It had secured 160 out of the 162 seats and
bagged 75 percent of cast votes in East Pakistan. It had not won a single seat in West
Pakistan. Awami League had contested only 7 seats out of 138 in the West wing and
concentrated on the East wing. Similarly, the PPP concentrated on West Pakistan and did
not contest a single seat from the East wing. While smaller parties also enjoyed support in
certain regions and no national party with the support base in both wings existed.13

Although the Awami League had 38 % share of the national vote but it had captured 53%
of seats in the house of 300 members. On the other hand, Zulfiqar Ali Bhutto‘s Pakistan
People‘s Party secured 81 out of 138 seats in West Pakistan and secured 20% of the
national vote share and 27% of seats at the national level. The bastion of power for PPP
was Punjab and Sind, where it secured respectively 62 out of 82 and 18 out of 27 and
remaining one seat from NWFP (Now KPK) .14 Although Mujib secured 75% of votes in
the East but it constituted 42% of total registered voters. Despite of all appeals of
exploitation and discrimination East wing had a relatively low turnout of 56% while in
Punjab turnout was 67%, in Sind, it was 58% and NWFP and Baluchistan had 47% and
39% turnout respectively. 15 So the divided electoral verdict further complicated the process
of transfer of power.

These election results clearly depicted the effectiveness of the Awami League‘s propaganda
of exploitation and victimization of the East by the West wing. The political elite had
successfully politicized this xenophobia in East Bengal and sharpened the rifts between the
two wings. The assertion of racial identity in Bengal had excluded the Bihari Muslims and
declared them ‗others‘ and equated them with West Pakistan, while including the Hindus
due to shared linguistic and cultural identity markers and extended its relationship with

13
Rafique Afzal, Pakistan: History and Politics 1947-1971 (New York: Oxford, 2005), 397-98.
14
Sarmila Bose, Dead Reckoning: Memories of the 1971 Bangladesh War (New York: Oxford,
2011), 21.
15
Ibid., 19.
24
India. While the West Pakistanis declared the East Bengalis as Hindu-like and portrayed
them as the enemy of Pakistan and Islam and suppression and atrocities were justified. The
xenophobia of others hood played a significant role in the acceleration of violence during
armed conflict in post-March 1971 period.

Mujib could not implement his Six Point agenda without the support from West Pakistan
either from PPP or other smaller parties for the adoption of the constitution although he
enjoyed the necessary simple majority required for the formation of the federal
government. Bhutto considered that ―Six Points being a Concealed formula for secession in
two strokes rather than one.‖16 During his meetings with West Pakistan political leaders at
Dahka in early February Mujib had shared his fears with West Pakistan‘s political leaders
that Yahya would not summon the Assembly and had no intentions to transfer power, and
Bhutto had conspired with him and working as his ‗stalking-horse‘ and certain generals
were also the part of this conspiracy.17

During political negotiation for constitutional consensus the policy of military

establishment ‗was passive and reactive rather than active and assertive.‘ The military
establishment was deeply concerned with protecting its Corporate interest and intact its
power leverage, although it was ready to transfer power and the establishment of the liberal
constitutional regime but at their own terms and conditions. The military establishment had
failed to maintain its position of neutrality and emerged as the custodian of Western wing
interest and with the insistence of coalition government with PPP made it a partisan rather
than neutral mediator.18

In post-1970‘s Elections political leaders were extensively engaged with the masses, held a
frequent public meetings, and aroused popular sentiments to create pressure on their
political rivals and to strengthen their position of political bargaining, but this unusual
public contact in post-election scenario to exert pressure on their rival forces, ultimately
reduced the bargaining capacity of leadership and strengthened the hawks on both sides of

16
Zulfiqar Ali Bhutto, The Great Tragedy (Karachi: Vision Publication Ltd., 1971), 27.
17
Rose and Sission, War and Secession , 77.
18
Rose and Sission, War and Secession, 278.
25
the political divide. This process also resulted in further fragmentation and accelerated the
misperceptions and sharpened the respective identities and exposed the conflict of
divergent interests in future power structures. The fear of domination and exploitation by
the ‗others‘ had deepened the crisis.

That crisis resulted in the civil war after the launching of the military operation on March
25, 1971. India as an arch enemy of Pakistan availed that opportunity and added fuel to the
volatile situation. The Bengali elements received financial, military and diplomatic
support from the Indian state. It finally launched a military attack in East Pakistan. The
surrender of eastern command on December 16, 1971, resulted in the dismemberment of
the state and the creation of a separate state of Bangladesh.

Civilian Martial Law:

Yahya Khan after the embarrassing defeat on the Eastern Front on December 16, 1971,
declared that war on the Western Front went on. Despite that tragic incident under his
leadership, he wanted to remain in power. Mrs. Indira Gandhi under the American pressure
declared a unilateral ceasefire on all fronts. Pakistan also followed the same course. After
the disintegration of the state deep resentment and disappointment existed in military ranks
and files. That resentment was reflected in junior officers‘ strong reaction during a meeting
at Rawalpindi on December 19, 1971. The popular protest against the military regime also
started on the streets, on December 18, 1971.

These developments panicked the military leadership. Yahya Khan submitted his
resignation and invited Z. A. Bhutto to assume the leadership of the country. Bhutto was
sworn in as civilian chief martial law administrator on December 20, 1971. He immediately
released the Sheikh Mujib-ur-Rehman under international pressure. Bhutto assumed the
leadership of the new Pakistan and tried to restore the national confidence. He was the
leader of the second most popular political party after the Awami League. He commands
the people‘s trust and confidence. During their war years and previous political career; he
was perceived as a staunch nationalist and anti-India leader. He opted for the normalization
path on the security front. He directed the people‘s attention by introducing promised socio-

26
economic reforms for the provision of socio-economic justice. The civilian martial law
lasted for a few months, with the support of the opposition the process of constitution-
making was initiated and Bhutto assumed the office of the President on April 21, 1972,
under an interim constitution.

1.1 Asma Jillani Case:

Yahya‘s martial law regime adopted repressive measures to control the situation during the
post-election political crisis. Politicians Malik Ghulam Gillani from Lahore and Altaf
Gauhar Editor-In-chief of Dawn were detained under Martial Law Regulation No. 78 under
the Defence of Pakistan Act. Asma Jillani challenged the detention of his father in the
Lahore High Court. The Court refused to provide relief due to jurisdiction question under
martial law. The same ruling was adopted by the Sindh High Court in Gauhar‘s case in the
light of the Doso case. In both cases, appeals were filed in the Supreme Court.

The Supreme Court in its historic decision takes a great departure from its previous track
record, where it provided constitutional cover to martial law regime‘s illegal and
unconstitutional acts. The court claimed jurisdiction according to the 1962 constitution. The
court declared that Ayub Khan was supposed to transfer power to the speaker National
Assembly according to his own 1962 Constitution. The imposition of martial law and the
abrogation of the 1962 Constitution had no legal justification. It was a violation of the
constitution and Objective Resolution, where it was declared that state authority was
exercised by the public representatives. The court also declared Yahya as an usurper who
violated the constitution and did not allow all the constitutional machinery to come into
effect. That bold move restored the constitutional spirit and the doctrine of necessity was
revisited. The critics objected that the decision was issued when Yahya was not in power.
Asma Jillani's case was considered an important milestone in the legal and political history
of Pakistan.

SELF-ASSESSMENT QUESTIONS
1. How did economic policies and resource allocation contribute to the sense of
deprivation in East Pakistan?

27
2. In what ways did the 1970 elections intensify the political divide between East and
West Pakistan?
3. What legal precedent did the Asma Jilani Case set in terms of martial law and
judicial independence in Pakistan?
4. What lessons can be learned from the events leading to the separation of East
Pakistan regarding national unity and governance?
5. How did the dismemberment of Pakistan influence subsequent constitutional and
political developments in the country?

28
Unit 2

The Framing of the Constitution

Written by: Dr. Muhammad Sajid Khan

Comment [FK3]: The should be on a separate
Reviewed by: Dr. Muhammad Abrar Zahoor page.

Comment [SK4]: Unit 2 is starting on a separate

page as advised

29
 CONTENTS
Page #
Introduction .............................................................................................. 31

Objectives and Learning Outcomes ............................................................ 31

1. Interim Constitution of 1972………………………………………. 33

2. Efforts for Consensus Building……………………………………. 34
3. Constitutional Consensus…………………………………………. 35
4. Interim Constitution of 1972………………………………………. 36
5. Steps Towards the Constitution of 1973…………………………… 39
6. Approval of the Constitution………………………………………. 44
Self-Assessment Questions ........................................................................... 45

30
INTRODUCTION Comment [FK5]: Before Introduction , provide
the Contents of the unit.
Comment [SK6]: Provided
The dismemberment of Pakistan in 1971 brought about a deep constitutional crisis and a
pressing need to rebuild the nation‘s political and legal framework. This unit explores the
challenges of achieving consensus in a politically shattered situation, the debates
surrounding the drafting of the 1973 Constitution, and the compromises made to ensure
national unity.
The 1973 Constitution remains a cornerstone of Pakistan‘s legal and political identity,
embodying key principles of democracy, federalism, and fundamental rights. This unit
critically examines the efforts to build consensus during its drafting, questions whether that
consensus was enduring, and analyzes the Constitution‘s basic features to understand its
strengths and limitations.

OBJECTIVES
After the study of this unit, you will be able to:
1. understand the complexities faced by Pakistan at the time of its dismemberment
2. learn the context in which the Constitution of 1973 was framed
3. analyze and interpret the process of consensus building around the Constitution
4. know major milestones which led to the passing of the Constitution of Pakistan
1973
5. Analyze the efforts and challenges of consensus-building during the framing of the
1973 Constitution.
6. Evaluate the political and ideological compromises made in the pursuit of
constitutional consensus.
7. Identify and discuss the basic features of the 1973 Constitution.
8. Reflect on the lasting impact of the 1973 Constitution on Pakistan‘s political
system.

LEARNING OUTCOMES
After the study of this unit, you will be able to:

31
1. Explain the complexities faced by Pakistan at the time of its dismemberment
2. Assess the efforts made by political leaders to achieve consensus on the 1973
Constitution.
3. Critically evaluate the debates surrounding the federal and Islamic character of the
Constitution.
4. Outline the basic features of the 1973 Constitution, including its democratic,
federal, and Islamic provisions.
5. Discuss the lasting impact of the 1973 Constitution on Pakistan‘s political system.

32
Interim Constitution

Due to multiple factors that stemmed from the long dictatorial rule of Ayub Khan and a
centralized state structure that was antithetical to the vision of the All India Muslim League
and British India‘s administrative design, the Pakistani state fell apart in 1971. People in the
country, especially in East Pakistan, became disgruntled by the regional and class
disparities created and nurtured during the long martial law regime. A movement of the
people, especially students, was started and led by popular leaders such as Mujibur Rehman
in East Pakistan and Zulfikar Ali Bhutto in West Pakistan. Confronted by the popularity of
the movement Ayub was replaced with Gen. Yahya Khan who held elections in 1970 but
did not transfer power to the majority party i.e. Awami League. Its leadership was arrested
and Parliament could not be convened. Then in March 1971, the civil war started in East
Pakistan which led to the break up of the country and the establishment of Bangladesh. In
the remaining part of Pakistan, the Pakistan People‘s Party was in the majority on the basis
of the 1970 elections and it was invited by the Yahya regime to make its government. But
the problem was that the country did not have a Constitution. Zulfikar Ali Bhutto took oath
as President and civilian martial law administrator for the time being and started a
procedure of legislating a Constitution by developing a consensus. Being an adept
negotiator, he was able to bring all the parties in the Parliament to participate in the process
of drafting a constitution. Bhutto tirelessly tried to keep all the major opposition parties on
board and with their approval brought forth two documents:

1. The 1972 Interim Constitution, enforced on April 21, 1972, replaced martial law. 19
2. The 1973 Constitution was approved by the National Assembly on April 10, 1973,
and enforced on August 14, 1973.20

19
Mahboob Hussain, The Parliament of Pakistan: A History of Institution-building and
(un)democratic Practices, 1971-77 (Karachi: Oxford University Press, 2019), 94.
20
Anwar H. Syed, The Discourse and Politics of Zulfikar Ali Bhutto (London: The Macmillan Press,
1992), 117.
33
 2.1 Efforts for Consensus Building

By January 1972, the opposition parties including the National Awami Party (NAP),
Jamiat-i-Ulema-i-Islam (JUI), Tehrik-i-Istiqlal and Jamat-i-Islami mounted pressure on the
PPP-led federal government to withdraw martial law, restore democracy and summon the
session of National Assembly for ensuring the normal functioning of the political system in
the country. These demands were intensified by the opposition in February. The PPP
agreed with these demands in principle but prioritized introducing economic reforms in the
country and mobilizing support for Pakistan at the global level for starting the peace
dialogue with India to bring POWs back to the country.

However, the ruling PPP engaged NAP and JUI in a dialogue on March 2-6, 1972 to evolve
a roadmap for the return of democracy and constitutionalism as a replacement for martial
law.21 On March 6, these three parties signed a Tri-Partite Agreement with these features:

1. Members will be invited to attend the National Assembly session to commence on

April 14 for a maximum period of three days to take up some specified issues.
2. The government would prepare a draft of the Interim Constitution for the
consideration of the National Assembly. The Interim Constitution would be based
on the Government of India Act 1935 and the Indian Independence Act 1947, along
with necessary amendments to meet the current political requirements. It would be
debated in the assembly for three days and only designated party leaders or their
representatives would speak on it.
3. The government would obtain a vote of confidence from the National Assembly.
The government would also seek approval from the National Assembly for the
continuation of martial law up to August 14, 1972.
4. The National Assembly would appoint a committee to prepare the draft of the
regular constitution by August 1, 1972.

21
Hasan Askari Rizvi, Pakistan Political and Constitutional Engineering (Lahore: Sang-e-Meel
Publications, 2024), 350.
34
 5. The assembly would function both as a constitution-making body and a lawmaking
body until the permanent constitution was legislated. The powers of the President
under the declaration of emergency would continue till the lifting of the emergency.
6. The provincial assemblies would meet on April 21.
7. The federal and provincial governments would be formed on the basis of a
parliamentary majority. A person elected on two assemblies would retain both seats
until the constitution was approved. Likewise, the president, vice president,
governors, ministers and advisors could retain their seats.
8. The federal government would continue to appoint provincial governors until the
permanent constitution was framed. However, it would consult the majority party in
the assembly on the appointment of the governor.
9. In the provinces of NWFP (Khyber Pakhtunkhwa) and Baluchistan, the majority
parties are JUI and NAP who would form a government.
10. The elections to the local governments would be held on an agreed date soon after
the convening of provincial assemblies.

2.2 Constitutional Consensus

An environment of goodwill created by the Tripartite Agreement did not last for long and
after two weeks, some NAP and JUI leaders, especially Abdul Wali Khan, questioned some
of the issues agreed upon in the Agreement and expressed his doubt if the PPP would
implement all the aforementioned provisions of the Agreement. Abdul Wali Khan
contended that the NAP and JUI would not vote for the extension of martial law up to
August 14, 1972 and that they intended to stay away from the vote of confidence in the PPP
government.22 Actually, their major concern was whether the PPP would allow the NAP-
JUI to form provincial governments in NWFP (now KPK) and Baluchistan and replace the
incumbent governors of both of these provinces with new governors of the choice of NAP.

On the other hand, PPP was keen to ensure the participation of NAP-JUI in the National
Assembly session that was to commence in the middle of April. It, therefore, approached
the leaders of these parties and met in Peshawar on April 8. In this meeting, the PPP
22
Rizvi, Pakistan Political and Constitutional Engineering, 354.
35
conceded that these two parties could stay away from the vote for an extension of martial
law and a vote of confidence in the PPP government at the federal level. Hence, a new offer
for political accommodation and consensus building was extended by PPP on April 26,
1972, details of which were released on May 7, described as the second Tripartite
Agreement. It also ensured NAP-JUI on the formation of provincial governments in NWFP
and Baluchistan.

2.3 Interim Constitution of 1972

The 1972 Interim Constitution was eventually adopted by the National Assembly in its
special session on April 17, 1972, and it was enforced on April 21. This remained effective
until the regular Constitution of 1973 was enforced on August 14, 1973.23

The Interim Constitution was a detailed document with a preamble, 295 articles and seven
schedules. It adopted ideas, principles and institutions from earlier constitutional milestones
such as the Government of India Act of 1935, Indian Independence Act of 1947, the
Objectives Resolution and Pakistan‘s earlier constitutions of 1956 and 1962.24

It introduced a presidential system at the federal government level in which the President
was to be elected by the national assembly for five years. The President must be a Muslim
of at least 40 years of age and qualified to be elected as a member of the national assembly.
The Assembly could impeach the President on the charges of violation of the constitution
or misconduct. The President combined the role of the head of state as well as the head of
government and exercised sufficient executive authority to assert primacy.

The executive authority of the federal government was exercised in the name of the
President. He was the supreme commander of the army and would appoint the chiefs of
staff of the army, navy and air force. The President selected a cabinet consisting of
ministers to aid and advise in the exercise of his powers. Likewise, several other judicial
and executive appointments were made by the President. The ministers of the cabinet of the
President were to be members of the national assembly or get elected to the national

23
Rizvi, Pakistan Political and Constitutional Engineering, 355.
24
Hussain, The Parliament of Pakistan, 94.
36
assembly within 12 months of assuming office. The President was authorized to issue
ordinance for peace and good government, in case the assembly was not in session. The
ordinance was to be valid for a fixed duration unless the national assembly approved it, by
making it a law or otherwise.

It was the only Pakistani constitution that did have the post of Vice President, who was
elected by the National Assembly for a period of five years. Qualified on the basis of being
a member of the national assembly and 40 years of age, he served as acting President in the
absence of the President and was to be considered a member of the presidential cabinet,
although with precedence over other members of the cabinet. The vice president was to
perform the tasks assigned to him by the President.

The constitution established a single-house legislature at the federal and provincial levels.
The national assembly was comprised of the members elected from West Pakistan in
elections of December 1970 and two members elected from East Pakistan (Nurul Amin
who was appointed first Vice President and Raja Tridiv Roy) who opted to stay in
Pakistan.25 Six seats were reserved for women. The term of office of the national assembly
was to be five years from its first meeting and it functioned as constitution-making body as
well as a legislative body. Its role as a constituent assembly ended at the time of enactment
of a permanent constitution. It could legislate for the federal and concurrent lists and it had
ample powers to control finances and to pass a federal annual budget.

The Interim Constitution enshrined a federal system of government. The executive

provincial authority rested with the governors too, but the principles of the parliamentary
system made it obligatory for governors to act on the advice of chief ministers. The
executive head of the province was the chief minister who was appointed by the governor
after being satisfied that he commanded the support of the majority members in a particular
assembly.

The Interim Constitution divided authority into three categories: federal, concurrent and
provincial. Nonetheless, the overall balance of power was tilted in favour of the federal

25
Rizvi, Pakistan Political and Constitutional Engineering, 350.
37
government. The role and position of the federal government further increased in case the
President imposed emergency powers in the whole country or in a province. It also
authorized the President to assume ―all or any of the functions of the government of the
province‖ or direct the governor to do so if he was satisfied that ―a situation has arisen in
which the Government of a Province cannot be carried on in accordance with the provisions
of this Constitution.‖26 In such a situation the powers of the provincial legislative assembly
could be exercised by the federal legislature.

This constitution created a unified judicial system at the federal and provincial levels. In
line with the past, it was headed by the Supreme Court, with one high court in each
province. However, the joint Sindh-Baluchistan High Court, as it was at the time of
introduction of the constitution, continued to function under the Interim constitution. It also
included a Supreme Judicial Council. Some other important federal bodies were the
National Economic Council, Public Service Commission and Election Commission.

Like the 1962 Constitution, it established an Advisory Council of Islamic Ideology with
five to twelve members appointed by the President to advise the federal and provincial
governments on ―enabling the Muslims to organize their lives in accordance with the
teachings and principles of Islam‖ and prepare recommendations for bringing the laws ―in
conformity with the teachings and requirements of Islam as set out in the Holy Quran and
Sunnah.‖ It was mandatory for the President, the governors and the national and provincial
assemblies to seek Council‘s advice on whether a proposed law was in consonance with the
teachings and principles of Islam. However, the opinion of the council was only advisory
for the governments and legislatures. The Islamic Research Institute established under the
1962 constitution was also retained.

It had multiple Islamic provisions in the continuity of the previous constitutions of 1956
and 1962. The preamble assigned sovereignty to ―Allah Almighty alone‖ and identified
Pakistan‘s political and constitutional system with the principles and teachings of Islam.
Article 30 called for enabling the Muslims ―individually and collectively to order their lives

26
Rizvi, Pakistan Political and Constitutional Engineering, 356.
38
in accordance with the fundamental principles and basic concepts of Islam.‖ However, the
constitution acknowledged the right of the minorities to freely ―profess and practice their
religion and develop their culture.‖27 It incorporated the well-known fundamental rights
that were enshrined in democratic systems.

The President was empowered to amend or make provisions in the constitution if necessary
and expedient. He could invoke this power only up to March 31, 1973. This deadline was
extended by the national assembly on March 28, 1973, to enable the President to exercise
these powers until the enforcement of the permanent constitution. President Zulfikar Ali
Bhutto used these powers more often than not for effective enforcement of the constitution
and to make up for omissions . Another important thing was that the Seventh Schedule of
the constitution provided legal cover to 26 martial law regulations and orders. In the same
vein, all presidential orders, martial law regulations and orders as well as other laws
enforced after March 25, 1969, were given a legal cover.

2.4 Steps towards the Constitution of 1973

The National Assembly constituted a 25-member committee on April 17, 1972, to prepare
a draft of the permanent constitution by August 1.28 This deadline was afterward extended
to December 31. Later, five members (Ghulam Mustafa Khar, Mubashir Hasan, Malik
Meraj Khalid, Mumtaz Ali Bhutto and Mir Ghous Bakhsh Bizenjo) resigned because of the
heavy workload of their official positions. Chairman of the committee, Mian Mahmud Ali
Kasuri, also resigned as the federal minister and Chairman of the committee in September
1972. His resignation was turned down by President Bhutto. Nonetheless, on his
resignation again in October 1972, Bhutto accepted it. He resigned from his position of
deputy leader of the PPP Parliamentary Party too. On October 9, the Constitution
Committee elected Abdul Hafiz Pirzada as the new Chairman, who had by then assumed
the cabinet portfolio of Law and Parliamentary Affairs.29

27
The Interim Constitution 1972, 80-93.
28
Syed, The Discourse and Politics of Zulfikar Ali Bhutto, 172-178.
29
Syed, The Discourse and Politics of Zulfikar Ali Bhutto, 172-178.
39
The constitution-making process encountered several controversies due to distrust and
jealousy between the ruling PPP and its allies and the NAP-JUI and its allied groups. They
had differences of opinion on the role and position of the prime minister and the division of
powers between the center and the provinces. The constitution-making had to address a
structural imbalance in the post-1971 Pakistani federation which favoured Punjab. On the
pattern of pre-separation of East Pakistan period, Punjab had more population than the
other three provinces combined. Moreover, Punjab was ahead in economic resources and its
representation in military and bureaucracy.

The NAP-JUI had the idea of neutralizing Punjabi dominance by creating a weak federal
government limited only to its role in three subjects of defense, foreign policy and currency
and allocating the rest of the powers to provinces. The PPP and its allies shared the
necessity of granting administrative autonomy to the provinces but did not want to turn the
federation into a feeble body. Thus, they strived for a balance between provincial autonomy
and viable federal government.

Another problem was about Bhutto‘s way of governance and management. He preferred a
commanding role for himself in the new political system and garnered his liking for the
French political system rather than the British. He also talked about introducing some
safeguards in the parliamentary system so that the prime minister may not become a
hostage of the whims and wishes of the members of the parliament.

Bhutto agreed to NAP-JUI establishing their provincial governments in NWFP and

Baluchistan and appointed their nominees as governors in these provinces, but periodic
fireworks continued between the PPP government in the center and these two provincial
governments and their parent political parties. The PPP often questioned their loyalty to the
state and accused them of working against the security and solidarity of the state. However,
both of these camps did not let the situation to the point of no return. Their phases of ebb
and flow of confrontation and accommodation continued and one example of their
cooperation was the signing of the Constitutional Accord on October 20, 1972.30

30
Rizvi, Pakistan Political and Constitutional Engineering, 362.
40
President Bhutto invited the opposition leaders for talks on October 17-20 on constitutional
issues on the major features of the constitution on which the leaders consented and
agreement was reached on the following principles:31

1. In Pakistan, there would be a federal parliamentary form of government with the

primacy of the National Assembly.
2. The federal government actions would be taken in the name of the President.
However, the Prime Minister would be the Chief Executive whose advice would be
binding on the President in all matters and in all respects.
3. The National Assembly would elect one of its members as Prime Minister who
would be called upon by the President to form the government. This provision
meant that the head of state would have no discretion in the selection of prime
minister.
4. The prime minister would have the power to dissolve the national assembly at any
time. This power could be exercised even if the prime minister faced a vote of no
confidence.
5. Several steps were suggested about the working of the National and Provincial
Assemblies for ensuring political stability. These measures were: a) The resolution
of a vote of no confidence in the Prime Minister would compulsorily include the
name of another member of the Assembly to be his successor; b) The no-confidence
motion could not be moved during the budget session; c) if a vote of no confidence
was rejected, no new resolution of no confidence could be moved for at least six
months; d) For a period of fifteen years or three general elections, whichever was
longer, a vote of no confidence would fail unless it obtains at least two-thirds of the
total votes of the Assembly concerned.32
6. The Prime Minister must be a member of the National Assembly. Other ministers
could be either from the National Assembly or the Senate. However, the ministers

31
Rizvi, Pakistan Political and Constitutional Engineering, 362-366.
32
Rizvi, Pakistan Political and Constitutional Engineering, 362-363.
41
 from the Senate could not be more than one-fourth of the total members of the
cabinet.
7. Pakistan would have a bi-cameral legislature at the federal level: the National
Assembly (lower house) and the Senate (upper house).
8. The National Assembly would comprise 200 members elected directly on universal
franchise. Ten additional seats would be reserved for women for a period of 10
years, who would be elected by the elected members of the National Assembly from
their respective provinces.
9. The National Assembly seats would be allocated to the provinces, the federally
administered tribal areas and the national capital on a population basis.
10. The upper house, the Senate, would have 60 members. Each province would send
14 members: two seats each would be allocated to the federally administered areas
and the national capital of Islamabad. The Senate seats allocated to the provinces
would be elected by the respective provincial assemblies through a system of single
transferable vote system. The Senate members form the Tribal Areas would be
elected by the National Assembly members from there. The members form the
capital city would be elected through a procedure prescribed by the President on the
advice of the Prime Minister.
11. There would be two legislative lists: Federal and Concurrent. The residuary
legislative powers were left to the provinces. The Constitutional Accord proposed
60 items for inclusion in the Federal List and 47 items for the Concurrent List.
12. All money bills would originate and pass in the National Assembly. The Senate
would not have any ‗say‘ in this matter. The Senate would not be assigned any
‗administrative or supervisory powers.‘
13. The maximum qualifying age for the National and Provincial Assemblies would be
25 years. For the Senate, the maximum qualifying age would be 30 years.
14. The maximum qualifying age for the President would be 45 years. The President
would be elected in a joint session of the Parliament by an absolute majority of the
total membership of the parliament.

42
15. The federal legislature would continue to exercise the taxation powers that it had
under the Interim Constitution.
16. The net earnings from ―excise duty and royalty recovered at the well-head on
natural gas‖ should be paid to the province where the well-head was located.
Keeping in view the current commitments, the needs of natural gas in the province
where the well-head was located would be given priority.
17. A Council of Common Interests would be set up for ―supervision and control on
policy‖ regarding certain specified items in the federal and concurrent legislative
lists. This council would be responsible to the Parliament through the Prime
Minister. This Council would include four Chief ministers and four federal cabinet
members. The latter would be nominated by the Prime Minister.
18. Electricity would continue to be on the Concurrent List. The provincial
governments could construct power houses, transmission lines and grid stations in
their provinces. The federal government and WAPDA would also construct power
houses, inter-provincial transmission lines and grid stations in any province.
19. The net profit derived from bulk generation of power at a hydro-electric generation
station by the federal government or the WAPDA would be paid to the province
where the power was generated.
20. The federal government would continue to manage national planning and national
economic coordination. The Planning Commission would have one member from
each province, nominated by the President on the recommendation of the provincial
governments.
21. The official title of the state would be ―Islamic Republic of Pakistan.‖ The President
would be a Muslim and Islam would be designated as the State Religion. No law
would violate the injunctions of Islam as laid down in the Quran and Sunnah. All
the existing laws would be brought in conformity with the Islamic commands. The
Council of Islamic Ideology would be set up to ―pave the way for the positive
implementation of the teachings of Islam.‖33

33
Rizvi, Pakistan Political and Constitutional Engineering, 365.
43
22. Any amendment in the constitution would have to be passed by two-thirds of the
total members of the National Assembly and a simple majority in the senate.
23. The Election Commission and the Judiciary would be independent of the executive.
The constitution would guarantee fundamental rights and provide safeguards against
preventive detention.

This accord was signed by ten political leaders: Z A Bhutto, Abdul Qayyum Khan,
Ghous Bakhsh Bizenjo, Arbab Sikandar Khan Khalil, Maulana Mufti Mahmood, Sardar
Shaukat Hayat Khan, Maj. Gen. Jamaldar Khan, Maulana Shah Ahmad Noorani, Prof.
Ghafoor Ahmad and Sherbaz Mazari. It was welcomed by all political circles although
few reservations were raised. It was labelled as the major milestone after the
dismemberment of the country. The Constitutional Accord facilitated the formation of
the draft of the constitution by the Constitution Committee. The draft of the new
constitution in the form of a bill was introduced in the National Assembly on February
2, 1973.34 The members got two weeks to review the constitution bill and the debate for
its first reading started on February 17.

2.5 Approval of the Constitution 1973

The National Assembly approved the regular constitution on April 10, 1973, with 125
votes in its favour and none against, three members abstained from voting. They were
Mian Mahmood Ali Kasuri, Ahmad Raza Kasuri and Maulana Shah Ahmad Noorani.35
The master copy of the constitution was signed by 136 members of the National
Assembly on April 12. President Bhutto authenticated the constitution in a special
ceremony on the same day. Shah Ahmad Noorani, who abstained from voting, signed
the master copy. The 1973 Constitution was enforced on August 14, 1973. The
unanimous framing of the Constitution was described as one of the most brilliant
successes of the Parliament of Pakistan.

34
Syed, The Discourse and Politics of Zulfikar Ali Bhutto, 172-178.
35
Rizvi, Pakistan Political and Constitutional Engineering, 372.
44
 SELF-ASSESSMENT QUESTIONS

1. What were the constitutional causes of the break-up of the state of Pakistan in 1971?
2. What were the salient features of the Tri-partite Agreement on major points for the
formulation of the Constitution of Pakistan 1973?
3. How was the consensus building realized for the legislation of the Constitution of
1973?
4. What were the main points of agreement reached in the Constitutional Accord?
5. What are the fundamental features of the 1973 Constitution, and how do they reflect
Pakistan‘s identity as an Islamic and federal state?

45
Unit 3

Important Parts and Chapters of The

Constitution

Written by: Dr. Muhammad Sajid Khan

Comment [FK7]: Adjust on the previous page
Reviewed by: Dr. Misbah Umar 43.
Comment [SK8]: Formatting adjusted
46
 CONTENTS
Page #
Introduction .............................................................................................. 48

Objectives and Learning Outcomes ............................................................ 48

1. Part I Introductory………………………………………………….. 50
2. Part II Chapter 2 Principles of Policy………………………………
3. Part III Federation of Pakistan, President,Parliament………………. 51
4. Part IV Provinces……………………………………………….…. 56
5. Part VII The Judicature……………………………………………. 57
6. Part VIII Elections…………………………………………………. 59
7. Part IX Islamic Provisions…………………………………………. 63
8. Part X Emergency Provisions……………………………………… 64

Self-Assessment Questions ........................................................................... 68

47
INTRODUCTION Comment [FK9]: After the title page and before
the Introduction provide contents of the unit on
separate.
This unit examines the important parts and chapters of the Constitution of the Islamic
Comment [SK10]: provided
Republic of Pakistan 1973. Pakistan adopted its third constitution after a parliamentary
consensus on 12th April 1973 and it was promulgated on August 14, 1973. The 1973
Constitution of Pakistan is a comprehensive legal framework that defines the political
structure of the state, the rights of its citizens, and the relationship between its different
organs. This unit examines the key parts and chapters of the constitution, each of which
plays a vital role in shaping the functioning of the state. From the introductory provisions to
the detailed chapters on the judiciary, elections, and Islamic provisions, this unit offers a
thorough understanding of the constitutional structure.
Each part and chapter reflects the ideological, political, and legal principles upon which
Pakistan is based. Understanding these parts is essential to grasp how the Constitution
organizes state power, protects individual rights, and ensures the supremacy of law in
governance. By exploring these fundamental sections, students will gain insights into
Pakistan‘s federal structure, its political system, and the Islamic provisions that guide its
legal framework.

OBJECTIVES
After the study of this unit, you will be able to:

1. Understand the structure and key provisions of the 1973 Constitution of Pakistan.
2. Analyze the significance of each part of the Constitution in relation to Pakistan‘s
political and legal system.
3. Evaluate the impact of Islamic provisions and the emergency clauses within the
Constitution.
4. Examine the role of the judiciary, the President, Parliament, and Provinces in the
functioning of the state.
5. Gain an understanding of the electoral framework and emergency provisions within
Pakistan‘s constitutional structure.

48
LEARNING OUTCOMES

After the study of this unit, you will be able to:

1. Identify and explain the key parts and chapters of the 1973 Constitution.
2. Describe the core principles outlined in the Principles of Policy and their
implications for governance.
3. Outline the federal structure of Pakistan, the roles of the President, Parliament, and
the Provinces, and the powers vested in these institutions.
4. Examine the role of the judiciary as provided in Part VII and its role in ensuring
constitutional supremacy.
5. Understand the significance of the Islamic provisions and their influence on the
legal and political framework.
6. Analyze the emergency provisions and their impact on governance during crises.

49
 3.1 PART I
Introductory

1. The Republic and its territories

(1) Pakistan shall be a Federal Republic to be known as the Islamic Republic of

Pakistan, hereinafter referred to as Pakistan.
(2) The territories of Pakistan shall comprise—
(a) the Provinces of 3 [Balochistan], the [Khyber Pakhtunkhwa], the Punjab
and [Sindh];
(b) the Islamabad Capital Territory, hereinafter referred to as the Federal
Capital; [and]
(c)] such States and territories as are or may be included in Pakistan,
whether by accession or otherwise.
(3) [Majlis-e-Shoora (Parliament)] may by law admit into the Federation new States
or areas on such terms and conditions as it thinks fit.]
2. Islam to be the State religion
2. Islam shall be the State religion of Pakistan.
The Objectives Resolution to form part of substantive provisions
2A. The principles and provisions set out in the Objectives Resolution reproduced
in the Annex are hereby made substantive part of the Constitution and shall have
effect accordingly]
2 3. Elimination of exploitation
The State shall ensure the elimination of all forms of exploitation and the gradual
fulfillment of the fundamental principle, from each according to his ability to each
according to his work.
Right of individuals to be dealt with in accordance with law, etc.
4. (1) To enjoy the protection of law and to be treated in accordance with law is the
inalienable right of every citizen. Wherever he may be, and of every other person
for the time being within Pakistan.
(2) In particular—

50
 (a) no action detrimental to the life, liberty, body, reputation or property of any
person shall be taken except in accordance with law.
(b) no person shall be prevented from or be hindered in doing that which is not
prohibited by law; and
(c) no person shall be compelled to do that, which the law does not require him to
do.
Loyalty to the State and obedience to the Constitution and law
5. (1) Loyalty to the State is the basic duty of every citizen.
(2) Obedience to the Constitution and law is the [inviolable] obligation of every
citizen wherever he may be and of every other person for the time being within
Pakistan.
High treason
6. [(1) Any person who abrogates or subverts or suspends or holds in abeyance or
attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the
Constitution by use of force or show of force or by any other unconstitutional means
shall be guilty of high treason.]
(2) Any person aiding or abetting [or collaborating] the acts mentioned in clause (1)
shall likewise be guilty of high treason.
(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be
validated by any court including the Supreme Court and a High Court.]
(3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of
persons found guilty of high treason.
3.2 Part III
Federation of Pakistan

Pakistan adopted a federal and parliamentary structure of the constitution. After different
experiments in the 1956 Constitution, which was parliamentary in nature, with
extraordinary powers available to the president of Pakistan. In the 1962 Constitution Ayub
Khan adopted a Presidential form of government. In the 1973 Constitution, the democratic

51
forces evolved a rational consensus and decided to adopt a parliamentary form of
government.

President
The office of the president was retained as the head of the state with symbolic and
ceremonial powers. The president as a representative of the unity of the federation and part
of the parliament. The president also enjoys the status of supreme commander of the armed
forces of Pakistan. The articles of the constitution from 41 to 49 deal with the office of the
president, his qualifications and the constitutional role assigned to this office. Election to
the office of President shall be held not earlier than sixty days and not later than thirty days
before the expiration of the term of the President in office: Provided that, if the election
cannot be held within the period aforesaid because the National Assembly is dissolved, it
shall be held within thirty days of the general election to the Assembly. An election to fill a
vacancy in the office of President shall be held not later than thirty days from the
occurrence of the vacancy: Provided that, if the election cannot be held within the period
aforesaid because the National Assembly is dissolved, it shall be held within thirty days of
the general election to the Assembly. The validity of the election of the President shall not
be called in question by or before any court or other authority.
The authority of the federal government is exercised by the prime minister and his/her
cabinet of ministers in the name of the president. A president should be required to be a
Muslim of 45 years of age and qualify to become a member of the National Assembly. His
term of office would be five years. The electoral college for presidential office comprised
of Senate, National Assembly and all four provincial assemblies. The method of the
election is also prescribed in the constitution. After the adoption of the new constitution in
1973, Fazal-Ilahi Chaudhry was the first president of Pakistan and nowdays Asif Ali
Zardari serving as president of Pakistan for a second term president. In the case of vacant
positions, the election of the new president would be held not later than thirty days and not
earlier than six months after the expiration of the term of the president.

52
The federal government is supposed to be kept informed the president regarding the

business of the state. The prime minister operates as a chief executive of the state and the

president acts on the advice of the prime minister and his cabinet.

The Parliament:

In 1973 Constitution Pakistan adopted a model of bicameral legislature. The National

Assembly as a house of people would be directly elected and operate as a house of people.
The prime minister would be elected from the majority of votes in the lower house of the
National Assembly. The Senate of Pakistan was introduced as the upper house and house of
federation with equality of representation among the federating units.
The 1973 Constitution adopted the principal of bicameral legislature, and it gave birth to
the Senate of Pakistan as a house of the federation. As an upper house of the Parliament, it
provided equality of representation to the federating units of the state. Most of the federal
states in the world adopted the system of a bicameral legislature, even some unitary states
like the United Kingdom and Japan also adopted bicameralism.
Political scientists preferred second chambers as guardians and custodians of the rights of
the federating units/provinces and as a legislative check on hasty, ill-conceived, and
impulsive legislative bills. It also provided sufficient pause for reflections and sober
reconsiderations after the pacification of populist trends. It can also effectively check the
populist legislative pieces around electoral cycles introduced for narrow political interests.
In this opinion piece, a modest effort is conducted to trace the origin and history of the
upper house in our state.
In British India bicameral legislative arrangement was first introduced through the 1919
Act. Along with 144 members of the Central Legislative Assembly, a Council of States was
created with 60 members, out of them 34 were elected. In the legislative sphere, both
houses enjoyed equal powers, while some additional powers were assigned to the lower
house. The 1935 Act further enlarged the powers and numerical strength of both houses.
The Central Legislative Assembly consisted of 375 members with a term of 5 years. The
Act proposed the upper house maximum of 260 members, which the Council of States

53
recommended as a permanent house with one-third of members retiring every three years.
That federal legislative structure never came into existence due to the prevailing political
situation. The Act also proposed the adoption of bicameral legislatures at the provincial
tier, 6 out of 11 provinces adopted that arrangement with varying strength of membership
from 22 to 60.
The 1945-46 Elections were held for central and provincial legislative assemblies and the
idea of the bicameral legislature was not maintained in the Cabinet Mission Proposal and
even in the Independence of India Act 1947. According to the Act newly created
Constituent Assembly of Pakistan (CAP) was assigned the task of framing the constitution
and it also served as the federal legislature. The CAP appointed a Basic Principle
Committee after the adoption of the Objective Resolution in 1949. The Committee
submitted its second draft report in December 1952, and it proposed a bicameral legislature
for the new state of Pakistan. The proposed House of Units was comprised of 120 members
out of them 60 were elected from East Pakistan based on proportional representation by
means of a single transferable vote of provincial legislature. The remaining 60 seats were
distributed among the administrative units of West Pakistan with the same electoral
mechanism. The 400 -member House of People was going to be directly elected based on
the universal adult franchise. The draft constitution of 1954 also proposed the bicameral
structure by adopting the Bogra Formula of October 1953. The formula introduced the
principal of parity of representation between East and West Pakistan. It proposed an
indirectly elected Senate comprised of 50 members equally distributed among the 5 units
plus two women representatives each from both wings. The lower house comprised of 300
general seats and 14 reserved for women. Both houses enjoyed equal legislative and even
financial powers. In case of disputes, it should be resolved through joint seating via
majority votes.
The subsequent formation of One-Unit effectively derailed that arrangement, and the 1956
Constitution adopted a unicameral legislative structure with the parity of representation
between East and West wings. These moves significantly undermined the federation and
resulted in deep-rooted grievances among the provinces. The imposition of Ayub martial
law further complicated the situation. He appointed a Constitutional Commission under

54
Justice Shahabuddin who recommended a bicameral legislature with 48 members Upper
House of the Senate. Among them, 40 members would be elected from both wings based
on a parity of 20 each, while eight members will be nominated by the president amongst the
meritorious personalities. The lower house was comprised of 200 members elected by the
popular vote. The proposed Senate enjoyed legislative powers, it can propose amendments
in the money bill to the lower house with a non-binding effect. The Senate also enjoyed the
power to try the president, governors, ministers, judges, and the other executive offices. It
also enjoys the power to confirm the key appointments made by the president. Ayub
rejected the proposed constitutional scheme and adopted a presidential form of government
with an extraordinary concentration of powers in the office of the president. It also adopted
a powerless unicameral legislative house. The National Assembly comprised 150 indirectly
elected members from the electoral college of 80,000 Basic Democrats on the parity
principal. These moves of personalization of power brought disastrous consequences for the
harmonious working of the state and it aggravated the sense of political marginalization
among the federating units. The federal principal and provincial autonomy were largely
undermined in legislative and executive spheres and Pakistan predominantly operated under
unitary state patterns. That constitutional arrangement was abrogated with the resignation
of Ayub Khan.
Yahya's regime introduced the Legal Framework Order of 1970 which abolished the One-
Unit along with the notorious parity principal. The military regime announced the first
general elections of national and provincial assemblies based on universal adult franchise.
A unicameral house of the National Assembly comprised of 300 general members and 13
women-reserved seats was introduced. The constituencies were allocated among the
federating units based on their respective demographic strengths. East Pakistan had a share
of 162+7 seats while West Pakistan provinces had 138+6 members.
After the disintegration of the state in 1971, Pakistan started its new political journey under
the leadership of Z. A. Bhutto. The democratic forces evolved a political consensus on the
adoption of the new federal parliamentary constitution. They also proposed a bicameral
legislature. The national consensus develops among the political leaders after intensive
deliberations. They finally signed a constitutional accord in October 1972. Along with

55
many other issues, it adopted the bicameral legislature and the Senate of Pakistan proposed
a house of the federation in the new constitutional arrangement. The Senate had equal
representation from the provinces, it comprised 45 members initially with 10 each
indirectly elected from the 4 provincial assemblies. 3 seats were reserved for FATA
members and 2 seats were reserved for federal capital. The elections of the first senate were
held from July 6-10, 1973 for a 'four-year term.
The senate as a custodian of the constitution and guardian of democracy was proposed as a
permanent house. The first meeting of the Senate was held in the National Assembly hall
on August 6, 1973, and senators elected Khan Habibullah as the first chairman of the
Senate and Tahir Muhammad Khan as deputy chairman senate. The senate membership
was further expanded after the 1977 general elections. It added 18 new members, 4 from
each province and 2 additional members from FATA which raised its total strength to 63.
The imposition of martial law not only derailed the democratic process but the senate of
Pakistan was also abolished despite constitutional protections as a permanent house. Zia
restored the senate after the 1985 elections which again faced derailment after Musharraf‘s
martial law of 1999. The senate was restored after the 2002 elections with an enlarged
membership.
In the multi-ethnic, multi-cultural and multi-lingual federal state of Pakistan, the upper
house offered equal representation, and it offered a common platform for diverse identities.
It also helps to foster a sense of national unity, the supremacy of the constitution and
democracy in Pakistan.

3.3 Part IV
Provinces

The fourth part of the constitution comprised of Article 101 to Article 140 A of the
constitution. These articles deal with the position and powers of the governors of the
provinces, their constitutional powers and responsibilities in chapter one. Chapter 2 of this
part deals with the Provincial Assemblies, their constitution, duration and the powers of the
Speaker and Deputy Speaker. The functioning of the Assembly and its meeting rules are
also defined. It also deals with the legislative and financial powers of the assemblies. The
56
next chapter from Articles 118 to 127 deals with financial procedures regarding provincial
funds and public accounts, Annual budgets, supplementary grants and the procedure of its
approval and sanctions. Chapter 3 of part IV of the constitution deals with the power and
composition of Provincial Governments, the powers of the provincial executives, and the
role and function of the cabinet and provincial ministers. It also deals with the role of other
provincial legal offices including advocate general. This part is also reflected in the local
government system.

3.4 PART VII

The Judicature

THE COURTS
Establishment and jurisdiction of courts
(1) There shall be a Supreme Court of Pakistan, a High Court for each Province. [and a
High Court for the Islamabad Capital Territory] and such other courts as may be established
by law.
(2) No court shall have any jurisdiction save as is or may be conferred on it by the
Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the Executive within 3 [fourteen]
years from the commencing day
Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat
Court
(1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to
as the Commission, for appointment of Judges of the Supreme Court, High Courts and the
Federal Shariat Court, as hereinafter provided
(2) For appointment of Judges of the Supreme Court, the Commission shall consist of—

57
 (i) Chief Justice of Pakistan;
Chairman
(ii) [four] most senior Judges of the Supreme Members Court; Members
(iii) a former Chief Justice or a former Judge Member of the Supreme Court of
Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the 5 [four]
member Judges, for a term of two years;
Member
(iv) Federal Minister for Law and Justice; Member
(v) Attorney-General for Pakistan; and Member
(vi) a Senior Advocate of the Supreme Court Member of Pakistan nominated by the
Pakistan Bar Council for a term of two years. Member
(3) Notwithstanding anything contained in clause (1) or clause (2), the President shall
appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.
(4) The Commission may make rules regulating its procedure.
(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also
include the following, namely:—
(i) Chief Justice of the High Court to which the appointment is being made;
Member
(ii) the most senior Judge of that High Court; Member
(iii) Provincial Minister for Law; and Member
[(iv) an advocate having not less than fifteen Member years practice in the High
Court to be nominated by the concerned Bar Council for a term of two
Member
(8) The Commission by majority of its total membership shall nominate to the
Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a
High Court, or the Federal Shariat Court, as the case may be.
(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee,
shall consist of the following eight members, namely:—
(i) four members from the Senate; and
(ii) four members from the National Assembly:

58
 [Provided that when the National Assembly is dissolved, the total membership of
the Parliamentary Committee shall consist of the members from the Senate only mentioned
in paragraph (i) and the provisions of this Article shall, mutatis mutandis, apply.]
(10) Out of the eight members of the Committee, four shall be from the Treasury Benches,
two from each House and four from the Opposition Benches, two from each House. The
nomination of members from the Treasury Benches shall be made by the Leader of the
House and from the Opposition Benches by the Leader of the Opposition.
(11) The Secretary of the Senate shall act as the Secretary of the Committee.
(12) The Committee on receipt of a nomination from the Commission may confirm the
nominee by majority of its total membership within fourteen days, failing which the
nomination shall be deemed to have been confirmed:
[Provided that the Committee, for reasons to be recorded, may not confirm the nomination
by three-fourth majority of its total membership within the said period:]
[Provided further that if a nomination is not confirmed by the Committee, it shall forward
its decision with reasons so recorded to the Commission through the Prime Minister:
Provided further that if a nomination is not confirmed, the Commission shall send another
nomination.]
[(13) The Committee shall send the name of the nominee confirmed by it or deemed to
have been confirmed to the Prime Minister who shall forward the same to the President for
appointment.
Retiring age 1 [179. A Judge of the Supreme Court shall hold office until he attains the age
of sixty-five years unless he sooner resigns or is removed from office in accordance with
the Constitution.]
Decisions of the Supreme Court binding on other Courts
189. Any decision of the Supreme Court shall, to the extent that it decides a question of law
or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.
190. Action in aid of the Supreme Court
190. All executive and judicial authorities throughout Pakistan shall act in aid of the
Supreme Court.
191. Rules of procedure

59
191. Subject to the Constitution and law, the Supreme Court may make rules regulating the
practice and procedure of the Court.

3.5 PART VIII

ELECTIONS
The 1973 constitution provided a permanent election commission of Pakistan as a
constitutional body with the mandate of holding free, fair and transparent elections
according to the law. Although Pakistan was created through an electoral and democratic
process of 1945-46 elections, where Muslims of India provided a mandate to AIML under
the leadership of Jinnah to create a separate Muslim state. Pakistan failed to maintain
democratic traditions; no general elections were held till 1970. The framer of the 1973
constitution decided to create an independent ECP to facilitate elections in Pakistan. Article
213 of the constitution suggested the appointment of a Chief Election Commissioner.
CHAPTER 1. – CHIEF ELECTION COMMISSIONER AND ELECTION
[COMMISSION]
Chief Election Commissioner
(1) There shall be a Chief Election Commissioner (in this Part referred to as the
Commissioner), who shall be appointed by the President.
[(2) No person shall be appointed to be Commissioner unless he has been a Judge of the
Supreme Court or has been a senior civil servant or is a technocrat and is not more than
sixty-eight years of age.
Explanation 1.— ―senior civil servant‖ means a civil servant who has served for at least
twenty years under the Federal or Provincial Government and has retired in BPS-22 or
above.
Explanation 2.—― Technocrat‖ means a person who is the holder of a degree requiring the
conclusion of at least sixteen years of education, recognized by the Higher Education
Commission and has at least twenty years of experience, including a record of
achievements at the national or international level.]

60
[(2A) The Prime Minister shall in consultation with the Leader of the Opposition in the
National Assembly, forward three names for appointment of the Commissioner to a
Parliamentary Committee for hearing and confirmation of any one person.
[Provided that in case there is no consensus between the Prime Minister and the Leader of
the Opposition, each shall forward separate lists to the Parliamentary Committee for
consideration which may confirm any one name.]
(2B) The Parliamentary Committee to be constituted by the Speaker shall comprise fifty
percent members from the Treasury Benches and fifty percent from the Opposition Parties,
based on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective
Parliamentary Leaders:
[Provided [**] that the total strength of the Parliamentary Committee shall be twelve
members out of which one-third shall be from the Senate:]
Provided [further] that when the National Assembly is dissolved and a vacancy occurs in
the office of the Chief Election Commissioner, 5 [total membership of the Parliamentary
Committee shall consist of] the members from the Senate only and the foregoing provisions
of this clause shall, mutatis mutandis, apply.]
(3) The Commissioner 6 [or a member] shall have such powers and functions as are
conferred on him by the Constitution and law.
Oath of Office
Before entering upon office, the Commissioner shall make before the Chief Justice of
Pakistan 8 [and a member of the Election Commission shall make before the
Commissioner] oath in the form set out in the Third Schedule.
Term of office of Commissioner [and members]
(1) The Commissioner [and a member] shall, subject to this Article, hold office for a
term of [five] years from the day he enters upon his office:
[Provided that two of the members shall retire after the expiration of the first two
and a half years and two shall retire after the expiration of the next two and a half
years:
Provided further that the Commission shall for the first term of office of members
draw a lot as to which two members shall retire after the first two and a half years:

61
 Provided also that the term of office of a member appointed to fill a casual vacancy
shall be the un-expired term of the office of the member whose vacancy he has
filled.]
(2) The Commissioner [or a member] shall not be removed from office except in the
manner prescribed in Article 209 for the removal from office of a Judge and, in the
application of the Article for the purposes of this clause, any reference in that
Article to a Judge shall be construed as a reference to the Commissioner [or, as the
case may be, a member].
(3) The Commissioner [or a member] may, by writing under his hand addressed to the
President, resign his office.
(4) Vacancy in the office of the Commissioner or a member shall be filled within forty-
five days.]
Election Commission
[(1) For the purpose of election to both Houses of Majlis-eShoora (Parliament), Provincial
Assemblies and for election to such other public offices as may be specified by law, a
permanent Election Commission shall be constituted in accordance with this Article.]
(2) The Election Commission shall consist of—
(a) the Commissioner who shall be Chairman of the Commission; and
[(b) four members, one from each Province, each of whom shall be a person who
has been a judge of a High Court or has been a senior civil servant or is a technocrat and is
not more than sixty-five years of age, to be appointed by the President in the manner
provided for the appointment of the Commissioner in clauses (2A) and (2B) of Article
213.]
(3) It shall be the duty of the Election Commission 4 [Omitted] to organize and conduct the
election and to make such arrangements as are necessary to ensure that the election is
conducted honestly, justly, fairly and in accordance with the law, and that corrupt practices
are guarded against.
Duties of Commission
The [Commission] shall be charged with the duty of—

62
[(a) preparing electoral rolls for election to the National Assembly, Provincial Assemblies
and local governments, and revising such rolls periodically to keep them up-to date;]
(b) organizing and conducting elections to the Senate or to fill casual vacancies in a House
or a Provincial Assembly; and
(c) appointing Election Tribunals
[(d) the holding of general elections to the National Assembly, Provincial Assemblies and
the local governments; and
(e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament)
[Provided that till such time as the members of the Commission are first appointed in
accordance with the provisions of paragraph (b) of clause (2) of Article 218 pursuant to the
Constitution (Eighteenth Amendment) Act, 2010, and enter upon their office, the
Commissioner shall remain charged with the duties enumerated in paragraphs (a), (b) and
(c) of this Article.]
Executive authorities to assist the Commission, etc. Comment [FK11]: Adjust on the page.
Comment [SK12]: Formatting adjusted
It shall be the duty of all executive authorities in the Federation and in the Provinces to
assist the Commissioner and the Election Commission in the discharge of his or their
functions.

3.6 PART IX
Islamic Provisions:
The religious symbolism and idioms are frequently used by All India Muslim League
leadership during the Pakistan movement. The state was created to protect the religious
identity of the Muslims and to safeguard their political, and economic interests from
dominating the Hindu majority. The creation of a separate Muslim homeland provided an
opportunity for the citizens of Pakistan to adopt a political system of their own choice.
Jinnah declared that the new state would follow the instructions of the Quran and Sunnah in

63
framing its constitution. The Objective Resolution was considered a great milestone in the
process if Islamization of the state in Pakistan.
The following Islamic provisions were introduced in different constitutions. The 1956,
1962 and 1973 Constitutions declared that Islam would be the state religion. The state
assumed the responsibility to promote the Islamic way of life among its Muslim citizens.
The name of the state was declared as the Islamic Republic of Pakistan. The 1956 and 1973
Constitution adopted the same name, in the case of the 1962 Constitution‘s initial draft, the
name was suggested as the Republic of Pakistan, which was amended accordingly, the
word Islamic was included again.
The state will plan for the promotion of the Islamic way of life including the organization
of Zakat, Auqaf and mosques.
Islamic brotherhood should be promoted by the state and cooperation among the Muslim
countries would be the priority of the state.
The president would be the Muslim. The 1956, 1962 and 1973 Constitutions retained that
qualification for the office of the president. The 1973 Constitution also included the office
of Prime Minister as the chief executive of the state. The candidate is required to be a
Muslim member of the National Assembly.
The constitution also declared that ‗no law shall be enacted which is repugnant to the
injunctions of Islam as laid down in the Holy Quran and the Sunnah. The state also
declared that the existing laws ―shall be brought into conformity with injunctions of Islam
as laid down in the Holy Quran and Sunnah.‖ Both provisions operated as guiding
principles for Islamization.
The constitution also created a council of Islamic ideology, that institution was mandated to
recommend the parliament and provincial assemblies on the Islamization of the laws as an
advisory body. The Council of Islamic ideology was comprised of religious scholars and
legal experts.
The teaching of the Holy Quran and Islamiat would be promoted by the state. The state will
ensure the correct printing of the Holy Quran.
PART X
Emergency Provisions

64
Proclamation of emergency on account of war, internal disturbance, etc.
(1) If the President is satisfied that a grave emergency exists in which the security of
Pakistan, or any part thereof, is threatened by war or external aggression, or by
internal disturbance beyond the power of a Provincial Government to control, he
may issue a Proclamation of Emergency.
[Provided that for imposition of emergency due to internal disturbances beyond the
powers of a Provincial Government to control, a resolution from the Provincial
Assembly of that Province shall be required: Provided further that if the President
acts on his own, the Proclamation of Emergency shall be placed before both Houses
of Majlise-Shoora (Parliament) for approval by each House within ten days.]
(2) Notwithstanding anything in the Constitution, while a Proclamation of
Emergency is in force—
[(a) Majlis-e-Shoora (Parliament) shall have power to make laws for a Province, or
any part thereof, with respect to any matter not enumerated in the Federal
Legislative List
(b) the executive authority of the Federation shall extend to the giving of directions
to a Province as to the manner in which the executive authority of the Province is to
be exercised; and
(c) the Federal Government may by Order assume to itself, or direct the Governor
of a Province to assume on behalf of the Federal Government, all or any of the
functions of the Government of the Province, and all or any of the powers vested in,
or exercisable by, anybody or authority in the Province other than the Provincial
Assembly, and make such incidental and consequential provisions as appear to the
Federal Government to be necessary or desirable for giving effect to the objects of
the Proclamation, including provisions for suspending, in whole or in part, the
operation of any provisions of the Constitution relating to anybody or authority in
the Province
Provided that nothing in paragraph (c) shall authorize the Federal Government to
assume to itself or direct the Governor of the Province to assume on its behalf, any
of the powers vested in or exercisable by a High Court, or to suspend either in

65
whole or in part the operation of any provisions of the Constitution relating to High
Courts.
(3) The power of [Majlis-e-Shoora (Parliament)] to make laws for a Province with
respect to any matter shall include the power to make laws conferring powers and
imposing duties or authorizing the conferring of powers and the imposition of duties
upon the Federation, or officers and authorities of the Federation, as respects that
matter.
(4) Nothing in this Article shall restrict the power of a Provincial Assembly to make
any law which under the Constitution it has power to make, but if any provision of a
Provincial law is repugnant to any provision of an Act of [Majlis-e-Shoora
(Parliament)] which 1 [Majlis-e-Shoora (Parliament)] has under this Article power
to make, the Act of 1 [Majlis-e-Shoora (Parliament)], whether passed before or after
the Provincial law, shall prevail and the Provincial law shall, to the extent of the
repugnancy, but so long only as the Act of 1 [Majlis-e-Shoora (Parliament)]
continues to have effect, be void
(5) A law made by [Majlis-e-Shoora (Parliament)] which [Majlis-e-Shoora
(Parliament)] would not but for the issue of a Proclamation of Emergency have been
competent to make, shall, to the extent of the incompetency, cease to have effect on
the expiration of a period of six months after the Proclamation of Emergency has
ceased to be in force, except as respects things done or omitted to be done before
the expiration of the said period.
(6) While a Proclamation of emergency is in force, 1 [Majlis-eShoora (Parliament)]
may by law extend the term of the National Assembly for a period not exceeding
one year and not extending in any case beyond
(7) A Proclamation of Emergency shall be laid before a joint sitting which shall be
summoned by the President to meet within thirty days of the Proclamation being
issued and—
(a) shall cease to be in force at the expiration of two months unless before the
expiration of that period it has been approved by a resolution1 of the joint sitting;
and

66
 [(b) shall, subject to the provisions of paragraph (a), cease to be in force upon a
resolution disapproving the proclamation being passed by the votes of the majority
of the total membership of the two Houses in joint sitting.]
(8) Notwithstanding anything contained in clause (7), if the National Assembly
stands dissolved at the time when a Proclamation of Emergency is issued, the
Proclamation shall continue in force for a period of four months but, if a general
election to the Assembly is not held before the expiration of that period; it shall
cease to be in force at the expiration of that period unless it has earlier been
approved by a resolution of the Senate.
Power to suspend Fundamental Rights, etc., during the emergency period
(1) Nothing contained in Articles 15, 16, 17, 18, 19, and 24 shall, while a Proclamation of
Emergency is in force, restrict the power of the State as defined in Article 7 to make
any law or to take any executive action which it would, but for the provisions in the
said Articles, be competent to make or to take, but any law so made shall, to the extent
of the incompetency, cease to have effect, and shall be deemed to have been repealed,
at the time when the Proclamation is revoked or has ceased to be in force.
(2) While a Proclamation of Emergency is in force, the President may, by Order,1 declare
that the right to move any court for the enforcement of such of the Fundamental Rights
conferred by Chapter 1 of Part II as may be specified in the Order, and any proceeding
in any court which is for the enforcement, or involves the determination of any
question as to the infringement, of any of the Rights so specified, shall remain
suspended for the period during which the Proclamation is in force, and any such
Order may be made in respect of the whole or any part of Pakistan.
(3) Every Order made under this Article shall, as soon as may be, be laid before 2 [both
houses of Majlis-e-Shoora (Parliament), separately] for approval3 and the provisions
of clauses (7) and (8) of Article 232 shall apply to such an Order as they apply to a
Proclamation of Emergency.

Power to issue Proclamation in case of failure of Constitutional machinery in a

province

67
(1) If the President, on receipt of a report from the Governor of a Province is satisfied that
a situation has arisen in which the Government of the Province cannot be carried on in
accordance with the provisions of the Constitution, the President may, or if a resolution in
this behalf is passed [by each House separately] shall, by Proclamation,
(a) assume to himself, or direct the Governor of the Province to assume on behalf of
the President, all or any of the functions of the Government of the Province, and all or any
of the powers vested in, or exercisable by, anybody or authority in the Province, other than
the Provincial Assembly.
Proclamation in case of financial emergency
(1) If the President is satisfied that a situation has arisen whereby the economic life,
financial stability or credit of Pakistan, or any part thereof, is threatened, he may,
after consultation with the Governors of the Provinces or, as the case may be, the
Governor of the Province concerned, by Proclamation make a declaration to that
effect, and, while such a Proclamation is in force, the executive authority of the
Federation shall extend to the giving of directions to any Province to observe such
principles of financial propriety as may be specified in the directions, and to the
giving of such other directions as the President may deem necessary in the interest
of the economic life, financial stability or credit of Pakistan or any part thereof.

Revocation of Proclamation, etc. Comment [FK13]: On the next page.

Comment [SK14]: adjusted
(1) A Proclamation issued under this Part may be varied or revoked by a subsequent
Proclamation. (2) The validity of any Proclamation issued or Order made under this
part shall not be called into question in any court
(2) [Majlis-e-Shoora (Parliament)] may make laws of indemnity, etc. Nothing in the
Constitution shall prevent [Majlis-e-Shoora (Parliament)] from making any law
indemnifying any person in the service of the Federal Government or a Provincial

68
 Government, or any other person, in respect of any act done in connection with the
maintenance or restoration of order in any area in Pakistan.

SELF-ASSESSMENT QUESTIONS
1. What is the significance of the introductory provisions of the 1973 Constitution?
2. What are the Principles of Policy, and how do they guide the actions of the state?
3. What powers and responsibilities are given to the President and Parliament under
the 1973 Constitution?

4. What are the Islamic provisions in the 1973 Constitution, and why are they
significant?
5. What emergency powers are outlined in the Constitution, and under what
circumstances can they be invoked?

69
Unit 4

Fundamental Rights

Written by: Dr. Muhammad Sajid Khan

Comment [FK15]: Adjust on the title page.
Reviewed by: Dr. Misbah Umar
Comment [SK16]: adjusted

CONTENTS
Page #
Introduction .............................................................................................. 71

Objectives and Learning Outcomes ............................................................ 71

1. Supremacy of Fundamental Rights……………………………….. 73

2. Fundamental Rights……………………………………………… 77

70
Self-Assessment Questions ........................................................................... 89

71
 INTRODUCTION Comment [FK17]: Provide Contents of the unit
on a separate.
Comment [SK18]: provided
The concept of fundamental rights forms the cornerstone of a democratic society,
protecting individual freedoms and liberties against arbitrary state actions. The 1973
Constitution of Pakistan enshrines a wide range of fundamental rights, each safeguarding
the personal and collective dignity of the citizens. This unit examines the fundamental
rights guaranteed by the Constitution, which are essential to maintaining justice, equality,
and the rule of law. The rights discussed in this unit cover areas ranging from personal
freedoms to protection against exploitation, ensuring that the citizens of Pakistan are treated
fairly and equitably.
The unit will analyse the supremacy of fundamental rights, the right to life and liberty, and
the safeguards provided to ensure a fair trial, freedom of expression, and protection from
oppression. Additionally, it explores the state‘s responsibility to protect rights related to
freedom of movement, education, religion, property, and the preservation of cultural
identity. Understanding these rights is crucial for appreciating the constitutional safeguards
designed to maintain a just and inclusive society in Pakistan.

OBJECTIVES
After studying this unit, you will be able to

1. get acquainted with the fundamental rights according to the Constitution of Pakistan.
2. CComprehend and reflect on the efforts of parliament for the protection and
enactment of Fundamental Rights
3. analyze the historical context and amendments concerning the fundamental rights in
Pakistan since its inception.

LEARNING OUTCOMES
After the study of this unit, you will be able to:

1. Identify the key provisions related to fundamental rights within the Constitution of
Pakistan.
72
2. Evaluate, comprehend and reflect on the efforts of parliament for the protection and
enactment of Fundamental Rights.
3. Describe the constitutional protections provided for the freedom of speech, religion,
and the press in Pakistan.
4. Understand the constitutional safeguards against discrimination based on religion,
ethnicity, or language.

73
Supremacy of Fundamental Rights

The present unit deals with the constitution of Pakistan with special reference to
fundamental rights. All the citizens of Pakistan are entitled to these rights irrespective of
their caste, creed, ethnicity, and religion according to the Constitution of the Islamic
Republic of Pakistan. The significance of fundamental rights may be realized with the fact
that the very first chapter of the constitution deals with the articles that are related to
fundamental rights. The origin of fundamental rights may be traced to seventeenth and
eighteenth-century ideas of laissez-faire and natural laws of the European philosophers,
especially Locke and Rousseau.36 In the modern world, the General Assembly of the United
Nations approved the list of about thirty human rights regarded as fundamental rights and
liberties. To designate a right as fundamental often means that the court has decided either
that the right is politically essential to the existence of society, or that it is essential to
individuals and their dignity and self-respect.37 The State of Pakistan acknowledges the
significance of Fundamental Rights and the very movement for Pakistan in colonial India
was a struggle for the acquisition of fundamental rights. The establishment of Pakistan as
an independent state took up the task of formatting ing a constitution and therefore, it
started working on documenting and guaranteeing fundamental rights but the formal
documentation took al little while to be implemented.

Though India has enjoyed the protection of fundamental rights since 1950, it was not until
1956 in Pakistan that the Government of India Act 1935, was replaced by a constitution and
38
the fundamental rights came into force. The parliament of Pakistan since 1947 has been
taking initiatives and making efforts for the protection and enactment of the fundamental
rights of the citizens. The Senate Functional Committee on Human Rights, the
Parliamentary Task Force on Millennium Development Goals (MDGs) and statutory
institutions like; the independent and autonomous National Commission for Human

36
Mohammad Hashim Kamali, Freedom of Expression in Islam (Cambridge: Islamic Texts Society,
1997), 19.
37
Mohammad Hashim Kamali, Freedom of Expression in Islam (Cambridge: Islamic Texts Society,
1997), 20.
38
Alan Gledhill, ―Fundamental Rights in Pakistan‖ Journal of the Indian Law Institute. Vo. 7, no. ½
(Jan-June 1965), 70. pp.70-81.
74
Rights(NCHR) and the National Commission on the Status of Women(NCSW) are a few to
name in parliament‘s efforts in this regard.39 Fundamental Right is a constitutional term,
which - in various entrenched bills of rights – picks up a set of rights from the broader
domain of ever-evolving human rights.40 It is the responsibility of the state to ensure and
protect the fundamental rights of all citizens. The guiding principles for which were laid by
the founding father, Muhammad Ali Jinnah in his address to the first Constituent Assembly
on August 11, 1947. He also chaired the first parliamentary committee ‗The Committee on
Fundamental Rights of Citizens and Minorities of Pakistan‘ which was created on August
12, 1947, showing his commitment to the cause of fundamental rights. The Objective
Resolution passed in 1949 and included as preamble of the Constitution of Pakistan
guarantees the fundamental rights as ―wherein 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‖. The overview of constitutional development with reference to
the protection of fundamental laws is discussed in the following paragraphs.

The Constituent cum Legislative Assembly (1947-1956), the National Assembly of

Pakistan (1956-1973) and the Parliament comprising the National Assembly and the Senate
of Pakistan had been upholding the codification of fundamental rights. In the year 1958,
both the declaration of martial law as well as the Supreme Court‘s judgment in Dosso41
resulted in the 1956 Constitution being abrogated. As a consequence, no fundamental right
‗nor any provision of the abrogated constitution could now be a source or basis for any
legal right‘.42The Constitution of 1962 was to become effective from June 8, 1962.
Constitution Commission had recommended retaining the Fundamental Rights from the
abrogated Constitution of 1956 but the regime opted to reduce the very notion of citizens‘

39
Zafarullah Khan, Consistent Parliamentary Cord Fundamental Rights of the Citizens of Pakistan
(Islamabad: Senate of Pakistan, 2016), 8.
40
Zafarullah Khan, Consistent Parliamentary Cord Fundamental Rights of the Citizens of Pakistan
(Islamabad: Senate of Pakistan, 2016), 9.
41
The State v Dosso PLD [1958] SC 533. cited in Sadaf Aziz, The Constitution of Pakistan: A
Contextual Analysis (Oxford: Hart Publishing, 2018), 186.
42
ABM Patwari, Fundamental Rights and Personal Liberty in India, Pakistan and Bangladesh (New
Delhi, Deep and Deep, 1988) 9.
75
rights to mere principles of Law-making and of Policy.43 274 days after the functionality of
the rights-less Constitution of 1962 the then Law Minister, Khurshid Ahmad introduced the
Constitution (First Amendment) Bill on March 9, 1963, to ‗bring back the Fundamental
Rights‘ in the Constitution.44

The debate and discussion on the Amendment were carried out on December 24, 1963. It
received the assent of the President on January 10, 1964, and it acknowledged nineteen
Fundamental Rights including; Security of Person, Safeguards as to arrest and detention,
Slavery and forced labour prohibited, Protection against retrospective punishment, Freedom
of movement, Freedom of assembly, Freedom of association, Freedom of trade; business or
profession, Freedom of speech, Freedom to profess religion and to manage religious
institutions, Safeguards against taxation for purposes of any particular religion, Safeguard
as to educational institutions in respect of religion etc., Provision as to property, Protection
of property rights, Equality of citizens, Non-discrimination in respect of access to public
places, Safeguards against discrimination in services, Preservation of culture, script and
language, and lastly, Abolition of untouchability.45

The Constitution was once again abrogated by the imposition of Martial Law by General
Agha Muhammad Yahya Khan on March 25 and a Legal Framework Order (LFO) was
presented on March 28, 1970. Regarding the fundamental principles for the future
constitution, the LFO promised to guarantee the Fundamental rights in its context. The
political turmoil and the debacle of East Pakistan were major challenges, along with it the
Interim Constitution of the Islamic Republic of Pakistan was adopted on April 17, 1972,
and was enforced on April 21, 1972, to provide a temporary legal umbrella to run the

43
Zafarullah Khan, Consistent Parliamentary Cord Fundamental Rights of the Citizens of Pakistan
(Islamabad: Senate of Pakistan, 2016), 53.
44
Zafarullah Khan, Consistent Parliamentary Cord Fundamental Rights of the Citizens of Pakistan
(Islamabad: Senate of Pakistan, 2016), 60.
45
Zafarullah Khan, Consistent Parliamentary Cord Fundamental Rights of the Citizens of Pakistan
(Islamabad: Senate of Pakistan, 2016), 62-63.
76
country pending the permanent Constitution. The Interim Constitution contained a Chapter
on Fundamental Rights and Principles of Policy (Article 6 to Article 49).46

On February 17, 1973, Abdul Hafeez Pirzada the author of the Constitution while
explaining the chapter about Fundamental Rights said in the Assembly that ―we have
provided for protection of citizenship rights, safeguards against distinction of service,
preservation of language, script and culture of the people in Pakistan.‖47 The Chapter of
Fundamental Rights was approved on March 13-14, 1973. The Constitution was enforced
on April 10, 1973. Fundamental rights as guaranteed in the Constitution of 1973 had been
suspended the day after the Constitution was unanimously adopted.48

Within two years after the adoption of the Constitution, the Government at least thrice
amended the Chapter of Fundamental Rights through the 1st, 3rd and 4th Constitutional
Amendments in 1974 and 1975 to alter the scope of certain rights related to preventive
detention, the Right to Association and the Freedom of Expression. On July 5, 1977, the
Constitution was held in abeyance upon imposition of Martial Law and the Fundamental
Rights were gone along with the curtailment over the jurisdiction of the Apex Court. Later
General Ziaul Haq and Mohammad Khan Junejo through the 8th Constitutional
Amendment introduced a few minor changes. After the restoration of democracy in 1988
till the Military rule of October 1999 only the 16 Constitutional Amendment extended the
quota system for employment from 20 to 40 years in Article 27. Later the Legal Framework
Order of General Pervez Musharraf and the subsequent 17 Constitutional Amendment also
tinkered with a few Fundamental Rights.49

Former Chief Justice of Pakistan, Justice Anwar Zahid Jamali, believes that the essence and
spirit of the Constitution includes the Preamble, the Principles of Policy, and Fundamental
Rights. For him, without these elements, the Constitution would be a mechanical document

46
Zafarullah Khan, Consistent Parliamentary Cord Fundamental Rights of the Citizens of Pakistan
(Islamabad: Senate of Pakistan, 2016), 64.
47
Zafarullah Khan, Consistent Parliamentary Cord Fundamental Rights of the Citizens of Pakistan
(Islamabad: Senate of Pakistan, 2016), 73.
48
Stanley Wolpert, Zulfi Bhutto of Pakistan: His Life and Times (Karachi: OUP, 2007), 231.
49
Zafarullah Khan, Consistent Parliamentary Cord Fundamental Rights of the Citizens of Pakistan
(Islamabad: Senate of Pakistan, 2016), 76.
77
structuring and distributing state power and authority. For the life and development of both
state and society, these elements make the constitution a dynamic and vibrant document.50
Fundamental Rights protect very basic ―interests‖ that are considered ―inviolable‖ and
essential to the development of the human personality and society, such as life (art. 9),
51
dignity (art. 14) and equality (art. 25). He further elaborates, The pre-eminence of
Fundamental Rights in the Constitutional scheme is evident from article 8 which provides
that any law, custom or usage having the force of law may be declared void in so far as it is
inconsistent with fundamental rights or ―takes away‖ or ―abridges‖ any right so conferred.
Hence, to avoid needless litigation, the Legislature and the Executive must ensure that laws,
policies, and their actions comply with Fundamental Rights to avoid being declared null
and avoid by the Courts.

The Constitution of the Islamic Republic of Pakistan contains the following articles dealing
with the Fundamental Rights of the citizens of Pakistan.

4.2 Fundamental Rights

 Supremacy of fundamental rights

 Right of an individual to be dealt with in accordance with law
 right to life and property
 security safeguards fair trial and due process
 protection against slavery, retrospective punishment, double punishment, and self-
incrimination
 inviolability of dignity of man
 freedom of movement, assembly, association, trade, business or profession, speech,
religion, and information
 safeguard against taxation for purposes of any particular religion and safeguards as
to educational institutions in respect of religion
 right to property and education
 equality and non-discrimination

50
Address on 10 December 2015, of honourable Chief Justice of Pakistan Mr. Justice Anwar Zaheer
Jamali as Chairman Law and Justice Commission of Pakistan, Government of Pakistan on fundamental rights
the promise of a just society, available on chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/[Link]
[Link]
51
Chief Justice of Pakistan Anwar Zaheer Jamali‘s address on ―Fundamental Rights: The Promise
of a Just Society‖ on December 10, 2015.
78
 4.3 CHAPTER 1. – FUNDAMENTAL RIGHTS

Laws inconsistent with or in derogation of Fundamental Rights

to be void

8. (1) Any law, or any custom or usage having the force of law, in
so far as it is inconsistent with the rights conferred by this Chapter, shall,
to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or
abridges the rights so conferred and any law made in contravention of this
clause shall, to the extent of such contravention, be void.

(3) The provisions of this Article shall not apply to—

(a) Any law relating to members of the Armed Forces, or of

the police or of such other forces as are charged with the
maintenance of public order, for the purpose of ensuring
the proper discharge of their duties or the maintenance of
discipline among them; or
52
[(b) any of the —

(i) laws specified in the First Schedule as in force

immediately before the commencing day or as
amended by any of the laws specified in that
Schedule;

(ii) Other laws specified in Part I of the First Schedule;]

and no such law nor any provision thereof shall be void on the ground that
such law or provision is inconsistent with, or repugnant to, any provision
of this Chapter.

(4) Notwithstanding anything contained in paragraph (b) of

clause (3), within a period of two years from the commencing day, the

52
Subs. by the Constitution (Fourth Amdt.) Act, 1975 (71 of 1975), s. 2, for ―paragraph
(b)‖, (w.e.f the 21st November, 1985), which was previously amended by Act 33 of 1974, s. 3,
(w.e.f 4th May, 1974).
79
 appropriate Legislature shall bring the laws specified in 53[Part II of the
First Schedule] into conformity with the rights conferred by this Chapter :

Provided that the appropriate Legislature may by resolution extend

the said period of two years by a period not exceeding six months.

Explanation.– If in respect of any law 54[Majlis-e-Shoora

(Parliament)] is the appropriate Legislature, such resolution shall be a
resolution of the National Assembly.

(5) The rights conferred by this Chapter shall not be suspended

except as expressly provided by the Constitution.

Security of person

9. No person shall be deprived of life or liberty save in accordance

with law.

Safeguards as to arrest and detention

10. (1) No person who is arrested shall be detained in custody

without being informed, as soon as may be, of the grounds for such arrest,
nor shall he be denied the right to consult and be defended by a legal
practitioner of his choice.

(2) Every person who is arrested and detained in custody shall

be produced before a magistrate within a period of twenty-four hours of
such arrest, excluding the time necessary for the journey from the place of
arrest to the court of the nearest magistrate, and no such person shall be
detained in custody beyond the said period with out the authority of a
magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person

53
Subs. by the Constitution (Fourth Amdt.) Act, 1975 (71 of I975), s. 2, for ―the First
Schedule, not being a law which relates to, or is connected with, economic reforms.‖
54
Subs. by the Revival of the Constitution of 1973, Order, 1985 (P.O. No. 14 of 1985), Art. 2 and
Sch., for ― Parliament‖.

80
 who is arrested or detained under any law providing for preventive
detention.

(4) No law providing for preventive detention shall be made except

to deal with persons acting in a manner prejudicial to the integrity,
security or defense of Pakistan or any part thereof, or external affairs of
Pakistan, or public order, or the maintenance of supplies or services, and
no such law shall authorise the detention of a person for a period
exceeding 55[three months] unless the appropriate Review Board has, after
affording him an opportunity of being heard in person, reviewed his case
and reported, before the expiration of the said period, that there is, in its
opinion, sufficient cause for such detention, and, if the detention is
continued after the said period of ‗[three months], unless the appropriate
Review Board has reviewed his case and reported, before the expiration of
each period of three months, that there is, in its opinion, sufficient cause
for such detention.

Explanation I.— In this Article, ―the appropriate Review Board‖

55
Subs. by the Constitution (Third Amdt.) Act, 1975 (22 of 1975), s. 2, for ―one month‖ (w.e.,f.
the 13th February. 1975).
81
 means,
(i) in the case of a person detained under a Federal law, a Board appointed by the Chief
Justice of Pakistan and consisting of a Chairman and two other persons, each of
whom is or has beena Judge of the Supreme Court or a High Court; and

(ii) in the case of a person detained under a Provincial law, a Board

appointed by the Chief Justice of the High Court concerned and
consisting of a Chairman and two other persons, each of whom is or
has been a Judge of a High Court.

Explanation II.—The opinion of a Review Board shall beexpressed

in terms of the views of the majority of its members.

(5) When any person is detained in pursuance of an order made

under any law providing for preventive detention, the authority making the order
shall, 56[within fifteen days] from such detention, communicate to such person
the grounds on which the order has been made, and shall afford him the earliest
opportunity of making a representation against the order :

Provided that the authority making any such order may refuse to
disclose facts which such authority considers it to be against the public
interest to disclose.

(6) The authority making the order shall furnish to the appropriate
Review Board all documents relevant to the case unless a certificate,
signed by a Secretary to the Government concerned, to the effect that it is not in
the public interest to furnish any documents, is produced.

(7) Within a period of twenty-four months commencing on the day

of his first detention in pursuance of an order made under a law providing for
preventive detention, no person shall be detained in pursuance of any such order
for more than a total period of eight months in the case of a person detained for
acting in a manner prejudicial to public order and twelve months in any other
case :

Provided that this clause shall not apply to any person who is employed
by, or works for, or acts on instructions received from, the enemy 57[, or who is
acting or attempting to act in a manner prejudicial to the integrity, security or
defense of Pakistan or any part thereof or who commits or attempts to commit
any act which amounts to an anti-national activity as defined in Federal law or
is a member of any association which has for its objects, or which indulges in,
any such anti-national activity].

56
Subs. ibid., for ―as soon as may be, but not later than one week‖ (w.e.f. the 13th February, 1975).
57
Added by the Constitution (Third Amdt.) Act, 1975 (22 of 1975), s. 2.

82
 (8) The appropriate Review Board shall determine the place of
detention of the person detained and fix a reasonable subsistence allowance for
his family.

(9) Nothing in this Article shall apply to any person who forthe
time being is an enemy alien.

Right to a fair trial

58
[10A. For the determination of his civil rights and obligations or in
any criminal charge against him a person shall be entitled to a fair trialand due
process.]

Slavery, forced labour, etc., prohibited

11. (1) Slavery is non-existent and forbidden and no law shallpermit or

facilitate its introduction into Pakistan in any form.

(2) All forms of forced labour and traffic in human beings are
prohibited.

(3) No child below the age of fourteen years shall be engaged inany
factory or mine or any other hazardous employment.

(4) Nothing in this Article shall be deemed to affect compulsory

service

(a) by any person undergoing punishment for an

offense against any law; or

(b) required by any law for public purpose:

Provided that no compulsory service shall be of a cruel nature or

incompatible with human dignity.

Protection against retrospective punishment

12. (1) No law shall authorize the punishment of a person—

(a) for an act or omission that was not punishable by law at

the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind

58
New Article 10 A ins. by the Constitution (Eighteenth Amdt.) Act, 2010 (10 of 2010), s. 5.

83
 different from, the penalty prescribed by law for that
offense at the time the offense was committed.

(2) Nothing in clause (1) or in Article 270 shall apply to any law-
making acts of abrogation or subversion of a Constitution in force in Pakistan at
any time since the twenty-third day of March, one thousand nine hundred and
fifty-six, an offense.

Protection against double punishment and self-incrimination

13. No person—

(a) shall be prosecuted or punished for the same ofense more than
once; or

(b) shall, when accused of an offense, be compelled tobe a

witness against himself.

Inviolability of dignity of man, etc.

14. (1) The dignity of man and, subject to law, the privacy ofhome,
shall be inviolable.

(2) No person shall be subjected to torture for the purpose of extracting

evidence.
Freedom of movement, etc.

15. Every citizen shall have the right to remain in, and, subject to any
reasonable restriction imposed by law in the public interest, enter and move
freely throughout Pakistan and to reside and settle in any partthereof.

Freedom of assembly

16. Every citizen shall have the right to assemble peacefully and without
arms, subject to any reasonable restrictions imposed by law in the interest of
public order.

Freedom of association
59
[17. (1) Every citizen shall have the right to form associations or unions,
subject to any reasonable restrictions imposed by law in the interest of
sovereignty or integrity of Pakistan, public order or morality.

59
Subs. by the Constitution (Eighteenth Amdt.) Act, 2010 (10 of 2010), s. [Link] ―Article 171.

84
 (2) Every citizen, not being in the service of Pakistan, shall have
the right to form or be a member of a political party, subject to any reasonable
restrictions imposed by law in the interest of the sovereignty or integrity of
Pakistan and such law shall provide that where the Federal Government
declares that any political party has been formed or is operating in a manner
prejudicial to the sovereignty or integrity of Pakistan, the Federal Government
shall, within fifteen days of such declaration, refer the matter to the Supreme
Court whose decision on suchreference shall be final.

(3) Every political party shall account for the source of its funds in
accordance with law.]

Freedom of trade, business or profession

18. Subject to such qualifications, if any, as may be prescribed by law,

every citizen shall have the right to enter upon any lawful profession or
occupation, and to conduct any lawful trade or business:

Provided that nothing in this Article shall prevent—

(a) the regulation of any trade or profession by a licensing
system; or
(b) the regulation of trade, commerce or industryin
the interest of free competition therein; or
(c) The carrying on, by the Federal Government or a
Provincial Government, or by a corporation
controlled by any such Government, of any trade,
business, industry or service, to the exclusion,
complete or partial, of other persons.

Freedom of speech, etc.

19. Every citizen shall have the right to freedom of speech and expression,
and there shall be freedom of the press, subject to any reasonable restrictions
imposed by law in t he interest of the glory of Islam or the integrity,
security or sdefense of Pakistan or any part thereof, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of
court, 60[commission of] or incitement to an offense.

60
Subs. by the Constitution (Fourth Amdt.) Act, 1975 (71 of 1975), s. 4, for ―defamation‖ (w.e.f the
21st November, 1975).

85
 Right to information. Comment [FK19]: Adjust on the next page.
Comment [SK20]: Adjusted
61
[19A. Every citizen shall have the right to have access to information in all
matters of public importance subject to regulation and reasonable restrictions
imposed by law].

Freedom to profess religion and to manage religious

institutions.

20. Subject to law, public order and morality,—

(a) every citizen shall have the right to profess, practice and
propagate his religion; and

(b) Every religious denomination and every sect thereof shall have
the right to establish, maintain and manage its religious
institutions.

Safeguard against taxation for purposes of any particular religion.

21. No person shall be compelled to pay any special tax the proceeds of
which are to be spent on the propagation or maintenance of any religion other
than his own.
Safeguards as to educational institutions in respect of religion,
etc.

22. (1) No person attending any educational institution shall be

required to receive religious instruction, or take part in any religious ceremony,
or attend religious worship if such instruction, ceremony or worship relates to a
religion other than his own.

(2) In respect of any religious institution, there shall

be no discrimination against any community in the granting of
exemption or concession in relation to taxation.

(3) Subject to law,

(a) no religious community or denomination shall be

prevented from providing religious instruction for pupils
of that community or denomination in any educational
institution maintained wholly by that community or
denomination; and

61
New Article 19A ins. by the Constitution (Eighteenth Amdt.) Act, 2010 (10 of 2010), s. 7.

86
 (b) no citizen shall be denied admission to any educational
institution receiving aid from public revenues on the
grounds only of race, religion, caste or place of birth.

(4) Nothing in this Article shall prevent any public authority from
making provision for the advancement of any socially or educationally
backward class of citizens.

Provision as to property

23. Every citizen shall have the right to acquire, hold and dispose of
property in any part of Pakistan, subject to the Constitution and any reasonable
restrictions imposed by law in the public interest.

Protection of property rights

24. (1) No person shall be deprived of his property save in accordance with
law.
(2) No property shall be compulsorily acquired or taken possession of save
for a public purpose, and save by the authority of law which provides for
compensation therefor and either fixes the amount of compensation or specifies
the principles on and the manner in whichcompensation is to be determined and
given.
(3) Nothing in this Article shall affect the validity of—

(a) any law permitting the compulsory acquisition or taking

possession of any property for preventing danger to life,
property or public health; or

(b) any law permitting the taking over of any property which has
been acquired by, or come into the possession of, any person
by any unfair means, or inany manner, contrary to law; or

(c) any law relating to the acquisition, administration or disposal

of any property which is or is deemed to be enemy property
or evacuee property under any law (not being property which
has ceased to be evacuee propertyunder any law); or

(d) any law providing for the taking over of the management of
any property by the State for a limited period, either in the
public interest or in order to secure the proper management of
the property, or for the benefit of its owner; or

(e) any law providing for the acquisition of any class of property
for the purpose of—

87
 (i) providing education and medical aid to all or any specified
class of citizens; or

(ii) providing housing and public facilities and services such as

roads, water supply, sewerage, gas and electric power to all
or any specified class of citizens; or

(iii) providing maintenance to those who, on account of

unemployment, sickness, infirmity or old age, are unable to
maintain themselves; or

(f) any existing law or any law made in pursuance of Article

253.

(4) The adequacy or otherwise of any compensation provided for by any such
law as is referred to in this Article, or determined in pursuance thereof, shall not
be called in question in any court.

25A. Equality of citizens

25. (1) All citizens are equal before the law and are entitled to equal
protection of the law.
(2) There shall be no discrimination on the basis of sex 62*.
(3) Nothing in this Article shall prevent the State from making any
special provision for the protection of women and children.

Right to education
63
[25A. The State shall provide free and compulsory education to all children of
the age of five to sixteen years in such manner as may be determined by law.]

Non-discrimination with respect to access to public places

26 (1) In respect of access to places of public entertainment or resort, not

intended for religious purposes only, there shall be no discrimination
against any citizen on the grounds only of race, religion, caste, sex,
residence or place of birth.

(2) Nothing in clause (1) shall prevent the State from makingany
special provision for women and children.

62
* The word ―alone omitted by the Constitution (Eighteenth Amdt.) Act, 2010 (10 of 2010), s. 8.
63
New Article 25A ins. Ibid., s. 9.

88
 Safeguard against discrimination in services.

27 (1) No citizen otherwise qualified for appointment in the service of Pakistan

shall be discriminated against in respect of any such appointment on the grounds
only of race, religion, caste, sex, residence or place of birth:

Provided that, for a period not exceeding 64[forty] years from the
commencing day, posts may be reserved for persons belonging to any class or
area to secure their adequate representation in the service ofPakistan:

Provided further that, in the interest of the said service, specified posts
or services may be reserved for members of either sex if such posts or services
entail the performance of duties and functions which cannot be adequately
performed by members of the other sex 65[:]

66
[Provided also that under-representation of any class or area in the
service of Pakistan may be redressed in such manner as may be determined by
an Act of Majlis-e-Shoora (Parliament)].

(2) Nothing in clause (1) shall prevent any Provincial Government,

or any local or other authority in a Province, from prescribing, in relation to any
post or class of service under that Government or authority, conditions as to
residence in the Province, for a period not exceeding three years, prior to
appointment under that Government or authority.

Preservation of language, script and culture

28. Subject to Article 251 any section of citizens having a distinct language,
script or culture shall have the right to preserve and promote the same and subject to
law, establish institutions for that purpose.

64
Subs. and shall be deemed always to have been so subs. by the Constitution (Sixteenth Amendment) Act,
1999 (7 of 1999), s. 2, for ―twenty‖, which was previously subs. by P.O. No. 14 of 1985, Art. 2 and Sch., for ―ten‖.
65
Subs. by the Constitution (Eighteenth Amdt.) Act, 2010 (10 of 2010), s. 10 for the full-stop.
66
New proviso ins. Ibid.

89
 SELF-ASSESSMENT QUESTIONS
1. Identify the key provisions related to fundamental rights within the Constitution of
Pakistan.
2. Recognize and explain the fundamental rights guaranteed by the 1973 Constitution of
Pakistan.
3. Discuss the protection of property rights, the right to education, and the preservation of
cultural identity under the Constitution.

90
Unit 5

The Judicature

Written by: Dr. Misbah Umar

Reviewed by: Prof. Dr. Farooq Ahmad Dar

91
 CONTENTS
Page #
Introduction .............................................................................................. 92

Objectives and Learning Outcomes ............................................................ 92

1. Historical Background…………………………………………….. 94
2. Judicature in Pakistan…………………………………………….. 95
3. The Courts…………………………………………………………. 96
4. Supreme Court of Pakistan and its Powers………………………… 97
5. Articles 189 and 190………………………………………………. 98
6. High Courts and their Powers…………………………………….. 98
7. Federal Shariat Court and its Powers……………………………... 99

Self-Assessment Questions ........................................................................... 101

92
INTRODUCTION Comment [FK21]: Please provide Contents of
the Unit.

A state comprises three main pillars. The Executive also called the Government runs the affairs Comment [SK22]: provided

of the state, the Legislature consisting of parliament and assemblies‘ frames laws according to
the constitution and the Judiciary comprising the Supreme Court, High Courts and Federal
Shariat Court checks the working of the first two organs of the state. All three organs
significantly perform their functions by operating within their constitutional domains. The
present unit deals with the third organ, ―The Judicature or the Judiciary‖, which performs an
essential role in determining the legal and political spectrum of the country. This unit examines
the historical evolution of the judiciary, its organizational structure, main functions, and powers
with reference to the preservation of the constitution and ensuring justice.

In the constitutional history of Pakistan, the judicature has been instrumental from the
interpretation of constitutional provisions to the adjudication of disputes concerning the
executive and legislative. The judiciary has been fundamental in holding the rule of law,
interpreting the Constitution, and preserving the rights of the citizens of Pakistan. In this unit,
you will learn about judicature as an important state pillar with reference to the Supreme Court,
High Courts, and the Federal Shariat Court.

OBJECTIVES

After going through this unit, students will be able to:

1. Understand the historical evolution of the judiciary as an institution.

2. Comprehend the various tiers of judicial hierarchy in Pakistan according to the
Constitution of Pakistan 1973.
3. Examine the structure, functions and powers of the Supreme Court, High Courts, and
Federal Shariat Court.
4. Explore the role of the Federal Shariat Court in Pakistan‘s legal framework.

LEARNING OUTCOMES

After completing this unit you will be able to;

93
1. Identify and describe the key components of Pakistan‘s judicial system, including the
Supreme Court, High Courts, and the Federal Shariat Court.
2. Discuss the powers and functions of the Supreme Court of Pakistan under the
Constitution.
3. Explain the provisions of Articles 189 and 190 and their impact on the functioning of the
judiciary.
4. Understand the structure and jurisdiction of the High Courts in Pakistan and their role in
the legal system.
5. Analyze the role and powers of the Federal Shariat Court in ensuring compliance with
Islamic law.

94
5.1 Historical Background

The judiciary in Pakistan has its origin in British India. The institution of judiciary was one of
the foremost institutions introduced in India by the British administrators. The British argued that
the judiciary was the principal organ of government that introduced the rule of law in India. It
was claimed that the judiciary became a model for enforcing law and order in a country that had
suffered from widespread anarchy and chaos for a century and during the twilight of the Mughal
Empire. Since inherently it was a British institution therefore after independence, it was
burdened with the responsibility of introducing Islamic legal norms during judicial dispensation.
This was necessitated because the country was born in the name of Islam and Two Nation
Theory. Therefore, it became an arch responsibility of the judiciary to maintain a distinction
from the Indian legal system and move towards a new judicial path integrating Islamic
dispensation. Another motive behind treading the new path for the judiciary was that those
regions which Pakistan was comprised of as a result of partition did not have courts. In British
India the Federal Court was established in Delhi under the Government of India Act 1935, which
remained in India, thus Federal Court in Pakistan was established in 1949 with Mian Abdul
Rashid as the first Chief Justice. Similarly, the High Courts under the British rule were
established in Calcutta, Bombay and Madras and all these areas after the partition of India had
become part of India. Hence a new High Court was established in Dhaka, the new capital of
Pakistan.

After the War of Independence in 1857 and the formal control of the British Crown in India,
along with other institutions, the Indian court system in India was introduced on the pattern of
the British legal system. Subordinate Courts, which included the courts of first instance and first
appellate courts, were also introduced throughout British India at the district level. Over and
above the Subordinate Courts, High Courts, and Chief Courts were also introduced, from time to
time, in the British Indian provinces to serve as apex courts in their respective provinces. The
High Courts were first established in Calcutta, Bombay and Madras having jurisdiction over the
entire provinces and presidencies. High courts were later established at Ahmadabad, Patna,
Nagpur, Lahore, and Rangoon which had jurisdiction over the provinces of Agra, Bihar, the
Central Provinces, Punjab, and Burma respectively. The areas that comprised Pakistan after
partition in 1947 inherited the Chief Court at Lahore (established in 1865), which was elevated to

95
High Court in 1919 as the Lahore High Court. The separation of Sindh from Bombay presidency
facilitated the establishment of the Chief Court of Sindh, at Karachi in 1937. At other places,
there were Courts of the Judicial Commissioner at Peshawar the province of former NWFP.i

5.2 Judicature in Pakistan

when India was partitioned along with other assets did judiciary was also to be divided between
the two newly independent states. It included the division of the courts, the creation and
establishment of new courts, and the framing of new constitutions for India and Pakistan. The
Lahore High Court continued to exist with its former nomenclature after the partition of India, in
1947. The Chief Justice and judges of the Lahore High Court continued on the same terms and
conditions as were applicable to them before August 15, 1947, under the same rules and
procedures. It was headed by Justice Mian Sir Abdul Rashid as its Chief Justice. Justice Abdur
Rehman, Justice Muhammad Munir, Justice Muhammad Sharif, Justice Atta Muhammad Jan,
Justice S. A. Rahman and Justice A. R. Cornelius opted for Pakistan. A Judicial commissioner
Court had been working in Karachi since 1931 which was abolished in 1940 to establish the
Chief Court of Sindh. Justice Hatim Badruddin Tyabji headed the Chief Court of Sindh after
partition. The other Judges were Justice T. V. Thadani, Justice Hassanali G. Agha, Justice M. R.
Mehar, Justice Dennis O‘Sullivan and Justice Geroge Constantine. Peshawar and Quetta had
Judicial Commissioner‘s Courts. Muhammad Ibrahim Khan and Malik Khuda Bakhsh were in
the Peshawar Judicial Commissioner‘s Courts, whereas the judicial commissioners of Quetta
were A. R. Khan and Bacon. For Bengal, a new High Court was established at Dhakka on
September 13, 1947. Justice Nurul Azim Khundkar became Chief Justice, others included Justice
Abu Saleh Mohamed Akram, Justice Amiruddin Ahmad, Justice Amin Ahmed, Justice
Mohammad Shahabuddin and Justice Thomas Hobart Ellis opted for Pakistan.

At the time of partition, there was no Federal Court in Pakistan, under section 9 of the Indian
Independence Act, 1947, the Governor General of Pakistan, promulgated the Federal Court of
Pakistan Order, 1948 on February 23, 1948. It provided for a Federal Court of Pakistan which
would be deemed to have been established with effect from August 15, 1947. However, the
Federal Court of Pakistan was established in May 1949 with Justice Mian Abdul Rashid as
Chief Justice of Pakistan, Justice Abdur Rahman and Justice Abu Saleh Mohamed Akram were
also appointed to the Federal Court. Section 9 of the Indian Independence Act, of 1947

96
empowered the Governor General to make necessary adaptations in the Government of India
Act, 1935. Muhammad Ali Jinnah, as the Governor General of Pakistan promulgated the
Pakistan (Provisional Constitution) Order, 1947. The second amendment in the Pakistan
Provisional Constitution was promulgated on March 11, [Link]

The Government of India Act, 1935 was amended in 1954 and empowered the High Courts to
issue the prerogative writs. The first constitution of Pakistan in 1956 renamed the federal court as
the Supreme Court of Pakistan. The Constitutions of 1956, 1962 and 1973 maintained the
existing judicial structure. The constitution of 1973 upgraded the Chief Court of NWFP and
Judicial Commissioner Court of Baluchistan into High Courts. In 1980, the Federal Shariat Court
was set up in 1980 with jurisdiction to determine if any law is repugnant to the injunctions of
Islam.

5.3 The Courts

In the judicial pyramid, the Supreme Court is at the apex and the court of Civil Judge-cum-
Judicial Magistrate at the base. The apex Court/Supreme Court is the Court of ultimate appeal
and final arbiter of deciding all civil and criminal disputes and interpreting the law and the
Constitution. Its precedents are binding on all other courts in the country. The High Court is the
principal court of the province and exercises control/supervision over the Subordinate Courts.
The Supreme Court, the High Courts and the Federal Shariat Court are the superior judiciary,
whereas the Subordinate Courts, Special Courts and Administrative Tribunals also constitute the
judicial structure. Following is the organogram to understand the structure of the judiciary.

97
 Organogram of Courts

Shariat Appellate
Bench of Supreme Supreme Court of Pakistan
Court

High Court of High Court of

Federal Shriat Court Lahore High Court Peshawar High Court
Sindh Balochistan Islamabad High Court

Administrative
District and Sessions Courts District and Sessions
Courts Entertaining District and Judge District and Sessions
Sessions Judge Judge &Tribunals Judge District and
Criminal Cases under Sessions Judge
Hadood Laws Addl. District & Addl. District & Sessions
Addl. District & Judge Addl. District &
Sessions Judge Sessions Judge Sessions Judge Addl. District &
Sessions Judge

Judicial
Senior Civil Judicial Senior Civil Magistrate
Senior Civil Magistrate Judicial
Judge Judge 1st Class Senior Civil Magistrate
Judge 1st Class
Judicial Judge 1st Class Senior Civil
Magistrate 1st Judge
Civil Judge Civil Judge Judicial
Civil Judge Class Judicial
1st Class 1st Class Magistrate Civil Judge Judicial
1st Class Magistrate 2nd Class
2nd Class 1st Class Magistrate Civil Judge
Judicial 2nd Class cum
Magistrate Civil Judge Civil Judge
Civil Judge Judicial Judicial
2nd Class 2nd Class Judicial 2nd Class Civil Judge Magistrate
2nd Class Magistrate Judicial
Magistrate 3rd Class 2nd Class
3rd Class Magistrate
Judicial Civil Judge Civil Judge 3rd Class
Civil Judge Magistrate 3rd
3rd Class 3rd Class Civil Judge
3rd Class Class
3rd Class

5.4 Supreme Court of Pakistan and its Powers

The Supreme Court is the apex court of Pakistan, exercising original, appellate, and advisory
[Link] It is the Court of ultimate appeal and final arbiter of law and the Constitution. Its
decisions are binding on all other [Link] The court consists of a Chief Justice and other judges,v
appointed by the president as per procedure laid down in the [Link] An act of parliament
has fixed the number of judges at 17 i-e Chief Justice and 16 [Link] There is also provision for
the appointment of acting judges as well as ad hoc judges in the [Link] A person with five
years‘ experience as a judge of a High Court or 15 years standing as an advocate of a High
Court, is eligible to be appointed as judge of the Supreme [Link]

The Court exercises original jurisdiction in settling intergovernmental disputes,x be that dispute
between the federal government and a provincial government or among provincial governments.
The Court also exercises original jurisdiction concurrently with High Courts for the enforcement
of Fundamental Rights, where a question of ―public importance‖ is [Link] The Court has
appellate jurisdiction in civil and criminal [Link] Furthermore, the Court has advisory

98
jurisdiction in giving opinion to the government on a question of law. xiii To facilitate the litigant
public and ensure prompt disposal of cases, the Court generally operates through benches,
working at the Principal Seat and the four Branch Registries, one at each provincial metropolis.
In short, the Supreme Court of Pakistan has the powers of appellate jurisdiction (hears appeals
against the High Courts and the subordinate courts), advisory jurisdiction (can advise on
constitutional matters of public importance), and original jurisdiction (in disputes between the
federal and provincial government and enforcing fundamental rights).

[Link] 189 and 190xiv

The Constitution of Pakistan empowers the Supreme Court of Pakistan with articles 189 and 190.
These articles are significant to comprehending the binding nature of the highest Court‘s
judgments and require the government and authorities to execute the orders of the Supreme
Court. Article 189 of the Constitution of Pakistan demands that all other courts in Pakistan are
bound to respect the verdict. It states, ―Any decision of the Supreme Court shall, to the extent
that it decides a question of law or is based upon or enunciates a principal of law, be binding on
all other courts in Pakistan.‖ Article 190 states, ―All executive and judicial authorities throughout
Pakistan shall act in aid of the Supreme Court.‖ Hence directs complete assistance to the
Supreme Court of Pakistan for the implementation of its orders. These articles establish the
ultimate authority of the Supreme Court over all other institutions and branches of Federal and
Provincial Governments. Hence empowering the Supreme Court as the final arbiter of legal
disputes and the supreme interpreter of the Constitution.

5.6 High Courts and their Powers

In Pakistan‘s judicial system there is a High Court in each province and one High Court for the
Islamabad Capital Territory. Each High Court consists of a Chief Justice and other puisne judges.
The strength of Lahore High Court is fixed at 60, High Court of Sindh at 40, Peshawar High
Court at 20, High Court of Baluchistan at 11, and Islamabad High Court at 7. A person with an
experience of 10 years as an advocate of a High Court or 10 years‘ service as a civil servant,
including three years‘ experience as a District Judge or 10 years‘ experience in a judicial office is
qualified to be a Judge in the High [Link] The Court exercises original jurisdiction in the

99
enforcement of Fundamental Rights and appellate jurisdiction in respect of judgments/orders of
the Subordinate Courts in all civil and criminal matters. Appeals are entertained against
orders/judgments of Special Courts. The High Court supervises and controls all the Courts
subordinate to [Link] It appoints its own staffxvii and frames rules of procedure for itself as well as
courts subordinate to [Link] In short, the High Court has the wit jurisdiction ( to implement
fundamental rights), appellate jurisdiction (to examine appeals against decisions made by lower
courts, including civil and criminal cases), and supervisory jurisdiction (to supervise the
subordinate courts to ensure proper administration of justice).

5.7 Federal Shariat Court and its Powers

The Court consists of eight Muslim judges including the Chief Justice of Pakistan. xix The judges

of the Federal Shariat Court are appointed through the Judicial Commission, which comprises

the Chief Justice of Pakistan, as chairman with four senior-most judges of the Supreme Court,

one former Chief Justice or a retired judge of the Supreme Court, appointed by the Chairman, in

consultation with the four-member judges of the Supreme Court, Attorney General for Pakistan,

the federal minister for Law and Justice, Chief Justice of Federal Shariat Court and most senior

judge of the Federal Shariat Court, as members. The recommendation of the Judicial

Commission then goes to an eight-member Parliamentary Committee that has equal

representation of the government and the opposition as well as of the two houses i-e the National

Assembly and the Senate. The Committee within two weeks reviews the recommendation and if

it is approved it goes to the Prime Minister who forwards the same to the President for

appointment. Of the eight judges, three are required to be Ulema who are well versed in Islamic

law. The judges hold office for a period of three years and the President may further extend such

[Link] The Court may take Suo Moto or through a petition by any citizen or a government may

examine and determine as to whether or not, a certain provision of law is repugnant to the

injunctions of [Link] Appeal against its decision lies to the Shariat Appellate Bench of the

100
Supreme Court, consisting of three Muslim judges of the Supreme Court and not more than two

Ulema appointed by the [Link] If a certain provision of a law is declared to be repugnant to

the injunctions of Islam, the government is required to take necessary steps to amend the law, so

as to bring it in conformity with the Islamic laws. The Court also exercises appellate and

revisional jurisdiction over the criminal courts, deciding Hadood [Link] The decisions of the

Court are binding on the High Courts as well as the Subordinate [Link] In short, the

Federal Shariat Court can review laws in accordance with Islam, has an advisory role on matters

pertaining to Islamic jurisprudence and has jurisdiction over the Hadood cases.

101
______________________________________________________________________________
1. For detailed study see, Hamid Khan, A History of Judiciary in Pakistan. (Karachi: OUP, 2019), 9-17.
2. Article 184, 185, 186.
3. Article 189.
4. Article 176.
5. Article 175 A.
6. The Supreme Court Number of Judges Act (Act No. XXXIII) of 1997.
7. Article 181, 182
8. Article 177.
9. Article 184 (1).
10. Article 184 (3).
11. Article 185.
12. Article 186.
13. The Constitution of the Islamic Republic of Pakistan ( As modified up to February 12, 2012),
Articles 189 & 190, 131.
14. Article 193.
15. Article 203.
16. Article 208.
17. Article 202.
18. Article203-C.
19. Article 203-C.
20. Article 203-D.
21. Article 203-F.
22. Article 203-D.
23. Article 203-G

SELF-ASSESSMENT QUESTIONS

1. Discuss in detail the organizational structure of judicature in Pakistan.

2. Examine the structure, functions and powers of the Supreme Court of Pakistan.
3. Analyze the structure and Functions of the High Courts of Pakistan according to the
Constitution.
4. Define the Federal Shariat Court and analyse its main responsibilities.
5. Write a comprehensive note on the evolution of the institution of Judicature in British
India and Pakistan.

102
Unit 6

Amendments in the Constitution of Pakistan

1973 from One to Seven

Written by: Dr. Tahir Hussain Bukhari

Reviewed by: Dr. Abdul Basit Mujahid

103
 CONTENTS
Page #
Introduction .............................................................................................. 104

Objectives and Learning Outcomes ............................................................ 104

1. Procedure of Amendment in the Constitution 1973………………. 108

2. Amendment of the Constitution (Articles 238 and 239)…………… 108
3. First Amendment…………………………………………………… 109
4. Second Amendment ……………………………………………….. 110
5. Third Amendment …………………………………………………. 111
6. Fourth Amendment………………………………………………… 111
7. Fifth Amendment…………………………………………………... 112
8. Sixth Amendment…………………………………………………… 113
9. Seventh Amendment………………………………………………….. 113

Self-Assessment Questions ........................................................................... 115

104
INTRODUCTION Comment [FK23]: Please provide Contents of
the unit on a separate page.
Comment [SK24]: provided

The period of Zulfikar Ali Bhutto‘s leadership in Pakistan witnessed significant changes to the
Constitution of 1973. These amendments were designed to address various political and social
challenges facing the country. This unit will focus on the key amendments made during Bhutto‘s
era, analyzing their impact on the political structure, the balance of power, and the legal
framework of Pakistan. By exploring the first through seventh constitutional amendments,
students will gain an understanding of how these changes shaped Pakistan‘s political and legal
environment.

OBJECTIVES
After the study of this unit, you will be able to:
1. Understand the significance of constitutional amendments during the Bhutto era.
2. Analyze the purpose and impact of each amendment made between 1973 and 1977.
3. Examine the role of Articles 238 and 239 in amending the Constitution.
4. Explore the political and legal context surrounding each amendment, including its
implications for governance, power distribution, and fundamental rights.

LEARNING OUTCOMES
After the study of this unit, you will be able to:
1. Identify the key amendments made to the Constitution during the Bhutto era.
2. Discuss the political, legal, and social context in which these amendments were
made.
3. Analyze the impact of these amendments on Pakistan‘s political system,
particularly regarding the powers of the President and the Parliament.
4. Explain the role of constitutional amendments in shaping the government and
politics in Pakistan.

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 6.1The Constitution of 1973 was the result of a national consensus among representatives of
all provinces. It was deliberated by directly elected representatives of the people and
unanimously acknowledged by all members of the Parliament. Under the constitution federal
parliamentary system was adopted which was considered an appropriate system for a
heterogeneous society like Pakistan. The credit for constitution-making goes to Z.A. Bhutto.
It was a social contract among all political parties for the smooth running of state affairs.
Soon after its implementation differences arose on the issue of power sharing and distribution
of authority. Seven amendments were made to the Constitution to cope with the prevalent
issues. In this chapter, an analysis will be provided about the causes of amendments by its
creators and why/how the federal principles were overrun.

The federal parliamentary system was introduced by Quaid-i-Azam Muhammad Ali Jinnah after
consultation with the first Constituent Assembly of Pakistan.1 The federal system works on the
principle of ‗Unity in Diversity‘, under which mutually diverse elements accommodate each
other for their common interests. This system has been successful in diverse and heterogeneous
societies like Pakistan. Unfortunately due to centralist tendencies, the federal system could not
remain operative properly in Pakistan which led to the failure of democracy as well as the
decline of Muslim League rule during the early phase of Pakistani politics.

The constitutional history in Pakistan has always been under criticism since the beginning. The
constitution of any nation reflects the aspirations of the nation. People are guaranteed personal
and collective liberty and their basic rights are safeguarded. The constitution elaborates on the
infrastructure of administrative, judicial, political and democratic systems. The constitution of
any nation is a legal document of a collective institution that declares an individual as a
representative unit and establishes its relations with other individuals as well as society. The
constitution making in Pakistan had been delayed rather than suspended for a long time. The
main reasons were the problems faced by the country during the initial phase i.e. uunstable
governments and severe differences in ideological and regional contexts. The tale starts from
Interim Constitution 2 and continues with Objective Resolution 3, Basic Principles Committees 4,
Bogra Formula 5 and violation of federal principles. That damaged the distribution of power and
authority among different organs of the state which created an imbalance between federating
units.

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The constitution of Pakistan 1973 was adopted after a long struggle and passing through the
bitter experiences and consequences of the 1956 and 1962 constitutions. It was a misfortune for
the country that constitutional development took place at a slow pace due to hurdles from unseen
forces of autocracy and dictatorship. The constitution of Pakistan in 1956 was a good start. It was
highly objected to soon after its implementation due to certain flaws.6 It was a first experience
almost at such a time when democracy was going to be derailed. The constitution could be
improved gradually but the show of power politics did not allow so. The constitution of Pakistan
1962 under the Ayub Regime was a reflection of highly centralist tendencies and was declared as
‗One Man Show‘ and Syed Noor Ahmed rightly said that the position of President in the
constitution was of ‗Clock Tower‘ of Lyallpur7. This constitution was abrogated after the decline
of Ayub Khan.

The nation was the victim of disappointment after the separation of East Pakistan in 1971, along
with other reasons one was the constitutional issues and ignoring the spirit of federalism due to
which the national life in Pakistan became paralyzed. After the resignation of Yahya Khan the
powers were handed over to Zulfikar Ali Bhutto the majority party leader of the rest of Pakistan
after 1971. The first priority of the new government was constitution-making. Generally, all
political parties and politicians were of the view that the constitution of Pakistan should be based
on parliamentary democracy. Some political parties were in favour of a weak federation and
demanding more authority and provincial autonomy for the provinces. The issue remained under
discussion in the assembly for two years. At last the constitution of 1973 was approved
unanimously and implemented on August 14, 1973. It was a federal, parliamentary and Islamic
constitution.

The laws are generally started with a certain preamble which explains the causes and objectives
of the said law. It is such an introductory part of the constitution or law which provides a
rationale for constitution making. It explains the aims, objectives and sources of constitution
making along with principles of law. The preamble is not a part of the Constitution but has
constitutional importance. It actually elaborates the unclear and vague words, terminologies and
orders. It cannot be implemented legally but can be helpful for the elaboration of the
constitution.

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The preamble of the Constitution 1973 is based on the principles laid down in objective
resolution. This resolution was unanimously approved by the first constituent assembly of
Pakistan on March 12, 1949. It was a milestone in the constitution making process. These
principles have been permanently included in the Constitution of 1973. These are as under;

1. Complete sovereignty of Allah Almighty

2. Democratic State
3. Islamic injunctions
4. Federation
5. Solidarity of the Federation of Pakistan
6. Basic rights
7. Safeguard of minority rights
8. Independence of judiciary
9. World prosperity and welfare of the people of Pakistan

It has been elaborated clearly that Allah Almighty is supreme sovereign over the whole of the
universe. Its main objective is that the determination of power and authority of government
cannot be determined by the endless human sovereign but is limited by the divine sphere of
sovereignty. The people and government of Pakistan have acknowledged the divine authority but
could not shape the system of state on theocratic lines. Pakistan has been declared a democratic
state. It is the aim and objective of the people of Pakistan to constitute such a system under
which the state should exercise its authority through the elected representative of the people. The
system of government is adopted under federal lines in this constitution. It has been elaborated
that areas and provinces in the Federation of Pakistan have to accept certain limitations on their
power and authority so that the federation may not be a titular state. Certain federal units have to
surrender their rights in the favor of federation. The solidarity of the area included in the
federation, independence of the federation and safeguards of federal rights have been ensured.

The constitution of 1973 was a unanimously agreed document of all divergent forces having
representation in the National Assembly of Pakistan. Its architect had high hopes regarding its
practicability. As far as the domination of centre and administrative dictatorship is concerned
Bhutto‘s rule was not much different from the previous regime. The acceptance of federal and
regional boundaries by provincial leaders was a good start under this constitution for provincial

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 autonomy. The justified participation in resource distribution and allocation of residue powers to
provinces was also granted in this constitution though the concurrent list was there.

The Constition does not provide a guarantee for any system unless they are not adopted in letter
and spirit. Despite of implementation of the 1973 constitution, the executive was made more
powerful as compared to other institutions which are strong indicator of Centralism. The Prime
Minister had the upper hand as compared to the President along with the National Assembly. It
was ensured that the Prime Minister would countersign the orders issued by the President and the
National Assembly‘s authority of No Confidence against Cabinet was limited.

Therefore, Bhutto strengthened his position through constitutional amendments and this
weakened the assembly and judiciary subsequently.

6.2 Procedure of Amendment in the Constitution 1973

The constitution of Pakistan 1973 has dual features of being hard and flexible nature at the same
time. In a hard constitution, the process of amendment is difficult and complicated, whereas,
under a flexible constitution, the amendment can be made at any time with a simple majority and
simple process. A simple majority in parliament is required for the approval of ordinary or
institutional bills whereas a 2/3 majority is requisite for an amendment bill in the constitution.
Despite this difficult majority, the Pakistani constitution is considered more flexible in
comparison to the American constitution. The amendment process in the American constitution
is more hard.

The Articles 238 and 239 under Section 11 of The Constitution of Pakistan 1973 provide a
procedure for the constitutional amendment. Moreover, Article 76 provides a procedure for
approval of The Bill from the President.

The following are the procedural steps for the constitutional amendment.

i. The constitutional amendment is carried out through an act of the Parliament.

ii. The amendment bill can be proceeded initially in any house of the Parliament i.e.
National Assembly or Senate.
iii. After the approval of the amendment bill from one house of Parliament is sent to the
other.

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iv. If the approved bill of one house is approved with some change from another house is
resent for review to the house from where it originated. Under such conditions again 2/3 majority
of the concerned house is mandatory.
v. 2/3 majority of the total membership is mandatory for approval of constitutional
amendment without any change from each house of The Parliament.
vi. The amendment bill regarding the change in provincial boundaries after the approval
of both houses is sent to the concerned provincial assembly for approval and finally
submitted to The President.
vii. Under Article 75 of the Constitution when any bill is submitted to The President for
approval. The President has to approve it or return to the Parliament in case of certain
objections for rectification within the time limit of 10 days. The bill is reviewed in the
joint session of Parliament and is resubmitted with change or without change by the
majority of members available. The President approves it within 10 days otherwise
the draft of the constitution is considered approved.
viii. Any amendment in the constitution cannot be inquired in any court on any basis.
Moreover, there is no ban on the authority of Parliament for the constitutional
amendment in any section.

6.3 First Constitutional Amendment

Seven amendments to the Constitution were made in a short span of four years. The first
amendment was regarding the recognition of Bangladesh. Since the fall of Dhaka, the
recognition of Bangladesh has been of a sensitive nature. Although Bhutto himself was
convinced to recognize Bangladesh, but there was resisting pressure from opposition parties.
Bhutto was under severe criticism for being one of the characters behind the separation of East
Pakistan. At the time of the implementation of the 1973 constitution, the matter of recognition of
Bangladesh was pending with the Supreme Court. Later on, on the eve of the second Islamic
Summit at Lahore in February 1974, Pakistan had to recognize Bangladesh under the pressure of
King Faisal of Saudi Arabia, Col, Qaddafi of Libya and others. It had become a separate entity
till that time. There was no other chance of its re-merger into Pakistan. As a result of recognizing
Bangladesh the amendment to the constitution of Pakistan was a necessity. Therefore, article 1 of

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the constitution was amended under the first amendment, under clause 2 which was about the
representation of East Pakistan in the federation of Pakistan. 8

Under the amendment, the areas of Pakistan were re-specified. The area of East Pakistan was
excluded and Balochistan, NWFP (Khyber Pakhtunkhwa), Punjab, Sindh, federal capital
Islamabad, and Federally Administered Tribal Area i.e. Fata later included in KP) were declared
part of Pakistan. Another part of the amendments was about establishing political organizations.
In regard to it, sections 2 and 3 were added in Article 17 of the constitution under which the
government was granted permission that it could ban a political party from adopting an anti-
Pakistan stance. Under section 3 all parties were bound to reveal the sources of party funds
before the government. Due to the same amendment Prime Minister Zulfikar Ali Bhutto banned
National Awami Party. The inter-session interval between two consecutive sessions of any house
of Parliament was decreased to 90 days in spite of 120 days. It was also made possible that the
chief justice of any High Court may include the Judge of other High Court in his court with the
consent of a concerned judge, the concerned High Court chief justice and the President of
Pakistan.9

6.4 Second Amendment

The second amendment was regarding the declaration of Ahmadis as non-Muslims. Anti Ahmadi
movement started in Pakistan back in the early 1950s. The situation became worse and agitation
led to martial law in Lahore in March 1953. It led to the dissolution of the Daultana Ministry in
Punjab and severe problems for the Nazimuddun Ministry at centre. During the Bhutto rule same
type of agitation spread in 1974. It was based on the clash between students and Ahmadis at
Rabwa Railway Station.10 The news of this incident spread countrywide causing -anti-Ahmadi
processions and public meetings under political parties especially Jamiat Ulema-i-Pakistan,
Jamiat Ulema-i-Isam, Jamat-i-Islami and others. It was unanimous demand of people to declare
Ahmadis as non-Muslims. Finally, Prime Minister Bhutto referred the issue to the National
Assembly. After detailed deliberations and debates in National Assembly unanimously approved
the second amendment bill in the constitution. According to it clause (3) was added to article 260
which was explaining that who was a Muslim. A new clause was added which stated that

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 … a person who does not believe in the absolute and unqualified finality of
the Prophet Muhammad (Peace be upon Him) as the last
of the prophets or claim to be a prophet in any sense of the word or of any
description whatsoever, after Muhammad (Peace be upon Him) or recognizes such
a claimant as a prophet or a religious reformer is not a Muslim. 11

6.5 Third Amendment Comment [FK25]: On the next page.

Comment [SK26]: done
12
The third amendment in the constitution was made on February 18, 1975. It was introduced to
curtail the rights of prisoners detained under law for preventive detention, hence extending the
powers of detaining authority.13 It is quite clear that the third amendment limited the rights of
political prisoners and consequently the powers of government were increased. Under the
amendment government got powers to keep political opponents under detention for an indefinite
time by assuring them involved in anti-state activities. The Bhutto government during the period
1974-75 had become much authoritative and intolerant. He wanted to teach a lesson to his
political opponents. When some political opponents consulted courts, due to lack of high morals
the judgments were mostly in the favour of government and rarely some relief was granted to
political opponents. Such type of limited relaxations under judicial authority was not supported
and favoured by Bhutto and his colleagues. Therefore the policy of curtailment of powers of
judiciary was planned. This amendment was based on ill intentions under which the political
victims especially NAP leadership were already under iatrial and were dealt with harshly. This
amendment extended the powers of the president regarding extension in the period of emergency
which was a maximum of six months after the recommendations of a joint session of
parliament.14 This amendment provided a clause to continue emergency for an unlimited period
of time. It reflected the autocratic style of governance.

66.6 Fourth Amendment

The fourth amendment was approved by the National Assembly on November 21, 1975. 15 It was
the aim of PPP to limit the power and jurisdictions of courts especially grants related to political
opponents under article 199. In the wake of dictatorship and authoritative rule, Bhutto de-shaped
the constitution of 1973 himself. The High Courts were deprived of the powers of granting bail

112
to the favour under preventive detention. In this way, High Courts became helpless to provide
justice to political victims. Under the amendment, minorities were allocated six special seats in
the National Assembly and an increase of seats in the Punjab Assembly from three to five. The
codal procedure for the approval of the Fourth Amendment was not adopted. The opposition
members of the National Assembly wanted to have a discussion on the pros and cons of the
amendment regarding the reduction of the High Court‘s powers. They were not allowed to speak
and were maltreated on the floor of assembly by security staff. Some of them were physically
thrown out of the assembly by security staff. It was managed to get the amendment approved
during the absence of opposition members. It was ridiculous because PPP holds a 2/3 majority
requisite for approval of any bill. The way adopted by the Bhutto Government with opposition
was humiliating.

6.7 Fifth Amendment

The 5th Amendment was approved by the National Assembly on September 5, 1976. According
to the official version it was introduced to curtail the tress passing of the judiciary into executive
sphere. There had been certain repeated decisions under the judiciary which affected the
executive. Initially, the provision of separate High Courts for Sindh and Baluchistan was granted
and the extending the period of separation of judiciary from the executive, fixation of term of
Chief Justices of Supreme Court and High Courts and compulsory transfer of judges from one
court to the other, process of punishment of contempt of court and restriction of the jurisdiction
of High Court to grant Bail.16

The judiciary was severely criticized when the Bill was debated in the National A Assembly.
Abdul Hafeez Pirzada blamed the judiciary was interrupting the affairs of the Legislature and
Executive. He was of the view that there was confusion about the power limits of the judiciary
and only the Legislature could decide about that. The judiciary got power from the constitution
and it could impart its decisions within the prescribed jurisdiction. Any decision beyond the
limits of power jurisdiction would be considered subversive and high treason. While giving his
postulates he proposed the fixation of tenures of the chief justices of the Supreme Court and
High Courts like President, Prime Minister, Governors and Member Parliaments. He said that if

113
the Judges of the High Court would not accept appointment to the Supreme Court his retirement
would be justified. In the case of Justice Sardar Iqbal and Justice Maulvi Mushtaq Hussain when
both of them had not accepted the post of Judge at the Supreme Court and opted to stay at
Lahore High Court, two rival groups emerged soon after. The Judiciary was divided from court
to Bar level which damaged the cause of the Judiciary. Bhutto in his concluding speech at the
approval of the 5th amendment stated, ―Government wanted harmonious co-existence of all the
organs of state, legislature, executive and the judiciary and none of them transgressing into the
sphere of others‖.17 The positive effect of the amendment was that separate High Courts for
Sindh and Baluchistan were constituted by dividing Sindh and Baluchistan High Court.

6.8 Sixth Amendment

The sixth amendment in the Constitution was made in haste. It was presented and approved
during the last session of the assembly before its dissolution for the conduct of upcoming
elections in 1977. The main content of the amendment was about extension in the terms of the
Chief Justices of the Supreme Court and High Courts beyond the retirement age. It was opposed
that the Chief Justice of the Supreme Court who had reached the age of retirement, i.e. sixty-five
years and Chief Justice of the High Court at the retirement age of sixty two years and had not
completed the term in office for five and four years respectively would continue to hold a post
until the completion of respective term of office. 18 Under this amendment an addition was made
in Article 260 of the constitution and the portfolios of advisors to the Prime Minister and Chief
Minister, Parliamentary Secretaries, Chairman of the Law Commission and Special Assistant to
the Prime minister were defined.

This amendment in the constitution reflects the authoritarian style of governance of Bhutto.
Firstly the chief justices were forced to retire before reaching retirement age and secondly, they
were allowed to continue under the 6th Amendment. It is also a unique example in the
constitutional history of Pakistan that the amendment was made to accommodate the chief justice
of the Supreme Court Yaqoob Ali Khan who was going to be retired in the middle of 1977 and
had served only for two years as Chief Justice. He was a close friend of Bhutto for whom the
constitution of Pakistan was amended.

6.9 Seventh Amendment

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The seventh amendment in the constitution was approved on May 16, 1977. Under this
amendment, the elected Prime Minister was enabled to hold a national referendum.19 Due to the
deadlock in dialogues between the PPP and PNA Bhutto proposed a solution under which the
joint session of parliament would pass and amendment to hold a referendum. The referendum
had to be materialized under a law made by the President. Under this provision, if the Prime
Minister fails to get a majority then he would have to resign from office. This amendment was
unusual and disgraceful for the parliamentary system according to some parliamentarians. Under
settled norms, the vote of confidence is obtained through parliament, not through a referendum.
Due to insincerity and lack of time, no arrangements could be made to hold a referendum. It was
necessary to set up a referendum commission and to propagate the cause of the referendum
before the masses which could not be materialized. This amendment proved helpful for General
Zia and General Musharaf to conduct referendums under vested interest for legislation in their
rule.

The constitutional amendments during Bhutto's rule revealed the dictatorial setup of his
government.20 If Bhutto had the temperament to bear the opposition, then he might have been the
elected leader and could enjoy power without taking strict measures against the opposition. He
was sure like Ayub Khan that political solidarity and national unity could be achieved through
the ‗Strong Centre‘. Moreover, it was also necessary to materialize Bhutto‘s preference for
political and economic power through centre. He also wanted to keep the political and economic
power of Punjab under certain limits. Until July 5, 1977, about 30 articles of the constitution
were amended more or less. If the last amendment would vehave been enacted the conditions
would be different. If the PNA had agreed with the proposal of holding a referendum the
assembly could have been saved in either condition.

The constitutional history of Pakistan is a nightmare and regretful also. After the provincial
Constitution of 1947 about 6 different constitutional drafts were prepared, out of which three
remained successful for implementation i.e. 1956, 1962 and 1973. The constitutions of 1956 and
1962 were abrogated while 1973 is still functional with about 26 amendments. It is questionable
why certain regimes amended the constitution under their own vested interests. The
constitutional provisions were utilized for the benefit of the government. The upper political
hierarchy is the beneficiary of such amendments, the general masses are the least benefited. Even

115
the apex constitutional institutions are helpless to interpret and implement the constitution of
1973 in letter and spirit.

Parliamentary democracy is actually a national government and mostly the feudals get elected
under parliamentary democracy. There is a large contradiction between parliamentary
democracy and feudalism. The exertion of authority through the rule of power is the nature of
feudalism and there is no tolerance or difference of opinion under this system. Unfortunately,
until feudalism could be occupant over national politics the pattern of governance will be
adversely affected.

Notes & References

1 A.H. Kardar, Pakistan’s Solders of Fortune (Lahore: Ferozsons [Link], 1988), p. 16
2 In fact it was a temporary arrangement and the government of Indi Act 1935 was adopted with some
changes and called as interim Constitution, 1947.
3 The document was designed on the basis of the recommendations of the leading Ulema of Pakistan who
initiated the famous 22 points, prominent among them were Maulana Shabbir Ahmed Usmani and
Maulana Syed Abdul Aala Maudoodi.
4 The committees were formed to create consensus on the grounds for the future constitution of Pakistan
but the target was not achieved.
5 Muhammad Ali Bogra the then Prime Minster presented his formula on October 7, 1953, which was
aimed primarily to curtail the powers of Governor General.
6 The constitution did not provide any clarification about the nature of elections and distribution of
power.
7 Syed Noor Ahmad in his work Martial Law to Martial Law has thrown light on the causes that
culminated in the first Martial Law in Pakistan which subsequently brought the constitution in 1962.
8 The Constitution of Pakistan (First Amendment), Act, 1974, Act XXXIII of 1974.
9 Hamid Khan, Constitutional and Political History of Pakistan (New York: Oxford University Press,
2005) p.4
10 The students of Nishtar Medical College Multan were on a trip to Peshawar. They had a petty quarrel
at Rabwa Railway Station while going towards Peshawar. In return, they were attacked by Ahmadies
under a plan giving it colour of religious conflict.
11 The Constitution of Pakistan (Second Amendment), Act 1974, XLIX of 1974 PLD.
12 The Constitution of Pakistan (Third Amendment), Act 1974, XXII of 1975 PLD.
13 Article 10 of the constitution, 1973, provided certain safeguards against preventive detention.
14 The Constitution of Pakistan, Article 232.
15 The Constitution of Pakistan (Fourth Amendment), act 1975, LXXI of 1975 PLD.
16 Dawn, Karachi, September 2, 1976.
17 Ibid. 6, 1976.
18 The Constitution of Pakistan (Sixth Amendment), Act 1976, act LXXXIV of 1976 PLD.
19 Dawn, Karachi, February 3, 1978.
20 Mehrunisa Ali, “Pakistan; Aftermath of the March 1977 election, Pakistan Horizon (Karachi; Vol. 13
Issue No.3, 4, 1977) pp. 77-102

SELF-ASSESSMENT QUESTIONS

116
 1. Identify the key amendments made to the Constitution during the Bhutto era.
2. Discuss the political, legal, and social context in which the constitutional
amendments were made during 1973-77.
3. Analyze the impact of the first seven constitutional amendments on Pakistan‘s
political system, particularly regarding the powers of the President and the
Parliament.
4. Explain the role of constitutional amendments in shaping Pakistan‘s governance.

Unit 7

Comment [FK27]: Title on a separate.

Amendments from 1984 to 1993 Comment [SK28]: done

117
 Written by: Dr. Muhammad Sajid Khan
Comment [FK29]: Be on the title page.
Reviewed by: Prof. Dr. Farooq Ahmad Dar
Comment [SK30]: Done

CONTENTS
Page #
Introduction .............................................................................................. 118

Objectives and Learning Outcomes ............................................................ 118

1. Nusrat Bhutto Case ………………………………………………… 119

2. Eighth Amendment………………………………………………… 121
3. Ninth Amendment………………………………………………….. 123
4. Haji Saifullah Case………………………………………………… 124
5. Tenth Amendment…………………………………………………. 125
6. Eleventh Amendment (20 Women Seats)…………………………. 125
7. Ahmed Tariq Rahim Case…………………………………………. 126
8. Twelfth Amendment (Special Courts)…………………………….. 127
9. Nawaz Sharif Case…………………………………………………. 127

Self-Assessment Questions ........................................................................... 129

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INTRODUCTION
The period from 1984 to 1993 saw several important amendments to the Constitution, reflecting
political instability, changing leadership, and efforts to address legal and constitutional
challenges. This unit will cover significant amendments during this period, including the Eighth
through Twelfth Amendments. We will explore landmark cases such as the Nusrat Bhutto case,
Haji Saifullah case, and the impact of amendments related to the powers of the President, the
introduction of women‘s seats in Parliament, and special courts. Students will critically assess
these amendments and their implications on Pakistan‘s political system and the judicial
framework.

OBJECTIVES
After the study of this unit, you will be able to:
1. Understand the significance of the constitutional amendments between 1984 and
1993.
2. Analyze the constitutional amendments in light of the political developments of the
period.
3. Evaluate the impact of landmark judicial cases on constitutional amendments.
4. Discuss the role of these amendments in shaping Pakistan‘s governance, legal
framework, and democratic processes..

LEARNING OUTCOMES
After the study of this unit, you will be able to:
1. Identify and describe the key amendments introduced between 1984 and 1993.
2. Understand the context in which these amendments were introduced, including the
political and legal environment.
3. Analyze the role of judicial cases like Nusrat Bhutto and Haji Saifullah in
influencing amendments.
4. Explain the specific impact of each amendment on the functioning of Pakistan‘s
democracy, Parliament, and judicial system.

119
5. Discuss the introduction of women‘s seats and the creation of special courts in the
context of these amendments.

120
7.1 Nusrat Bhutto case

General Zia-ul-Haq imposed martial law on July 5, 1997, dismissed the civilian government of
Z.A. Bhutto, the constitution was suspended partially and political leaders were arrested. The
action was launched as ―operation fair play‖ aimed to facilitate the elections as a transactional
regime. Military leadership took benefit of deadlock and rifts between PPP and PNA and
captured power. Zia's regime decided to withdraw constitutional amendments 5th and 6th, which
were introduced by Bhutto‘s regime. It resulted in the retirement of Chief Justice Yaqoob Ali
Khan and the appointment of the new Chief Justice, Anwar-ul-Haq. (Hamud Khan, 326). The
imposition of martial law, the suspension of the constitution and the detention of political
leadership as challenged by Begum Nusrat Bhutto, the wife of ex-prime minister, Bhutto. Yahya
Bakhtiar was the lawyer from the Bhutto side. The hearing of the case started on September 25,
1977, Chief Justice Anwar-ul-Haq headed a nine-member bench of the Supreme Court. Yahya
Bakhtiar mainly relied on the Supreme Court‘s verdict in Asma Jillan‘s case. He asserted that Zia
had no legal and constitutional authority to impose martial law. The article of the 1973
constitution treated that constitutional suspension as an act of high treason. He stressed that
martial law orders had no legal authority and detention of political leaders including Bhutto was
an illegal act of the military regime. He prayed that the doctrine of necessity had lost its
relevance after the Asma Jillani case. He further highlighted that Bhutto and PPP leadership‘s
arrest denied them equal opportunity in the electoral process. Zia claimed that the Constitution
was not abrogated, it held in abeyance certain parts of the constitution for the time being. The
regime‘s mandate was to create a peaceful environment to hold elections and restore the
democratic process.

A.K. Brohi, a leading constitutional lawyer defended the military regime and challenged the
maintainability of the partition on technical grounds. He asserted due to the suspension of
fundamental rights by the military regime, courts had no power to entertain this kind of petition.
Sharifuddin Pirzad, who was appointed as Attorney General of the Zia regime, asserted that the
Bhutto regime had lost its legal and constitutional authority due to alleged rigging in elections.
The imposition of martial law was a temporary measure and it should be justified under the
doctrine of state necessity.

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Unfortunately, the Chief Justice and other judges of the Supreme Court provided legal cover to
illegal and unconstitutional acts of military Janeta. It adopted the theory of revolutionary legality
and state necessity. These asserted that Zia‘s martial law was a temporary measure. In due course
of time, the constitutional and democratic process would be restored. It empowered the regime to
amend the constitution. No deadline was provided to the Zia regime for holding of elections.
These asserted that the public accepted the martial law regime by not agitating against the
imposition of martial law. The chief justice concluded that the illegal acts taken by armed forces
were required as of state necessity and welfare of the people. Zia‘s dismissal of the government
and suspension of the constitution was perceived as a temporary act for holding free and fair
elections. That decision revived the inglorious traditions of the judiciary as a subordinate
institution of the military establishment. It also provided legal cover for the empowerment of the
Zia regime, which proved the longest and most repressive military regime in the history of
Pakistan. The martial law which was imposed for holiday elections within 90 days actually lasted
for eleven long years from 1977 to 1111988. Nusrat Bhutto‘s case decision, which was
announced on November 10, 1977, added another dark chapter to our legal and constitutional
history.

7.2 8th Amendment

Pakistan adopted a parliamentary form of government after the formation of the state while
Pakistan adopted a parliamentary form of government after the formation of the state. While
Pakistan inherited a centralized bureaucratic state structure where parliament played the role of a
debating club. The notion of parliamentary supremacy and civilian control failed to develop roots
in Pakistan‘s political system. The first decade (1997-58) witnessed a rising trend of authorial
tendencies of the civil-military bureaucratic elite. The 1956 constitution was a document of
compromise, although it adopted a parliamentary form of government but it substantially
empowered the office of Governor General. The 1962 constitution entrusted all powers to the
office president. The presidential form failed to receive approval from democratic forces. A
political consensus emerged on the adoption of a parliamentary form of government in 1973. The
office of prime minister was empowered and civilian supremacy was established. The prime
minister was appointed as the chief executive of the state and he commands the support of the
majority in the parliament. The Bhutto era was the only exception of civilian supremacy in the

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political history of Pakistan. The office of the president was just reduced to constitutional head
with a ceremonial role. The powers of the president are seriously checked by the Constitution.
Parliamentary supremacy was established in the legislative spheres. All the key appointments of
the state institutions were made on the advice of the prime minister. The office was responsible
for formulating the policies for the running of the state.

After the electoral management through party less elections of 1985, the Zia regime desired for
the introduction of constitutional engineering. The eighth amendment was offered as a price for
restoration of democratic process to the newly elected parliament. The amendment was aimed to
shift the balance of power from elected representation to the powerful establishment through
constitutional distortion. The parliamentary form of government was radically transformed into a
quasi-presidential form of government. Pakistan replicated the hybrid system of the 1956
constitution through this amendment in -post-1985 parliamentary and presidential forms of
government were amalgamated. The system was parliamentary but presidential in essence, where
responsibility lies with parliamentary forces, while authority was shifted in the hands of the
president. After party-less elections in February 1985, the newly elected assembly held its first
session on 3rd March 1985. Zia took oath as the president of Pakistan for the next five years on
the basis of a mandate of a fraud referendum. He nominated a less controversial, less ambitious
and moderate person, Muhammad Khan Junejo as the next prime minister. The regime secured a
unanimous vote of confidence for the newly nominated Prime Minister after the initial
embarrassment of the defeat of the official candidate for the office of speaker National
Assembly. (Muhammad Waseem 12) Syed Fakhar Imam with the support of an independent
group able to defeat Khwaja Safdar, who was backed up by the official group detailed
deliberation and active participation by the independent parliamentary group, the amendment
was adopted by the assembly with modifications and alterations. On October 1, it was tabled in
the Senate and after its approval, the president signed it on November 9, 1985. The following are
silent features of the amendment:

1. The president would act on the advice of the president and the cabinet. He could send it
back to the cabinet for reconsideration.
2. The time limit for the president's assent to the legislature was reduced from 45 to 30
days.

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3. Through article 58-28 president was empowered to dissolve the national assembly and
dismiss the government at his discretion. The new assembly would be elected within 90
days of that desolation.
4. The president can nominate at his discretion the prime minister till March 30, 1990. After
that date, the National Assembly was empowered to elect its leader of the house with
majority votes of the total strength of the assembly.

After an extraordinary delay, the Zia regime finally started a process of civilization of
military rule. First, he elected himself as president through a referendum in December 1984.
At a later stage, he ordered the party-less elections and installed the government under
Junejo after the February 1985 elections. On March 2, 1985, Zia issued the Revival of the
Constitution Order (RCO). It added, deleted and amended 66 articles of the constitution and
also modified two schedules. It shifted the balance of power in the favor of the president and
provided legitimacy and blanket constitutional and legal cover through articles 207-A and
207-B to the actions of the Zia regime since July 55, 1977. RCO was then taken by the
parliament in the form of the 8th constitutional amendment. The amendment was first
introduced in the National Assembly in the month of September 1985. The president retained
the most crucial power of the appointment of the military service chiefs, the Chief Election
Commission, the provincial governors and other key constitutional offices. On the issue of
the appointment of the provincial governor, the Prime Minister's advice was required.

1. The proposed National Security Council under the RCO was abolished.
2. The amendment provided validity and indemnity to the actions of the military regime.

After the passage of the 8th amendment, Zia on the demand of the Prime Minister decided to
end martial law on December 30, 1985. The amended 1973 constitution was restored with the
claim of completion of the democratic transition from military to civilian rule. In the
province civilian governors were appointed, however, Zia retained the command of the
armed forces as Chief of Army Staff. The army was the core constituency of Zias, he
remained in that office till his death on August 17, 1988.

7.3 NINTH AMENDMENT

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 After the democratic process, the civilian region under Juneja started to function. After lifting
martial law, the constitution was restored with the 8th Amendment. Zia rreluctantly shared
power with the civilian government under the leadership of Prime Minister Muhammad
Khan Juneja. It resulted in the emergence of two center of power within ruling a group, one
group was pro-Zia Zia and the other group was pro-Juenjo, pro-Zia group was more inclined
towards Islamization. It introduced ninth constitutional amendment and proposed to amend
the article of the constitution. Ti suggested adding the following words, and the injunction of
Islam as laid down in the holy Quran and sunnah shall be the supreme law and source of
guidance for legislation to be administered through laws enacted by the parliament and
provincial assemblies, and for policy making by the government. It also suggested
amendments in articles 203b and 203d. Which suggested changes in Muslim personal laws
and fiscal laws. The amendment introduced in December 1985 in the Senate. Which was
finally approved it in July 1986. The government was reluctant to adopt the bill in its present
form. Prime Minister Junejo suggested the amendment to the bill for, More comprehensive
and in accordance with the sharate Mohammadi. Law minister Waseem Sajjad claimed that
the amendment in the bill ‗World creates an insurmountable difference in Pakistan society‘.
Through that bill, the Zia group maintained its pressure on Junejo, due to the sensitive nature
of the bill. The government's opposition to the bill had a great potential of station. The
government was delaying tactics and the bill was not passed by the national assembly till its
dissociation in May 1988.

7.4 Haji Saifullah Case

Zia‘s dismissal of the Junejo government in May 1988 through article 58-2B created another
political and constitutional process. Zia had little regard for the constitution, he appointed a new
caretaker cabinet without the prime minister. After Zia‘s assiassassination on August 17, 1988,
the chairman of the Senate Ghulam Ishaq Khan assumed the office of the acting president. He
continued with the existing inecabinet and did not bother to appoint a prime minister. After the
holding of the elections, Benazir Bhutto assumed the office of prime minister in December
1988. During the reprevious six months, there was no prime minister in Pakistan, which was a
constitutionally required office. Haji Saifuallh, who was s senior parliamentarian and legal expert
challenged it in the supreme court of Pakistan. He questioned the legal and constitutional status

125
of actions taken during that period. He also contested that a ecabinet without a prime minister
altered the constitutional arrangement under a parliamentary system and assured the role of a
presidential ine cabinet, under the presidential form of government. The court admitted the
petition and lardeclared illegal all the appointments, and actions taken by the president, which
required the advice of the prime minister during the period from May 29, 1988, to December 2,
1988. All these actions and appointments required regularization and re-affirmation. The court
held that such relief was requested from the court, which was and grated by the court. The count
recommended that the distribution of functions of the government should be regarded in the
future according to the constitution.

7.5 Tenth Amendment

The tenth constitutional amendment was passed by the two houses of the parliament in the month
of March 1987. The president of the Islamic Republic of Pakistan signed the bill on March 25,
1987, and it became the law of the land. In the bill amendment article 54 of the constitution the
word sixty was replaced with word thirty.

The bill also reduced the working days of the parliament in a parliamentary year. Perrivously the
perliment was supposed to work for one hundred and sixty days. The amendment reduced the
working days of the parliament to one to one hundred and thirty days in a parliamentary year.

7.6 Eleventh Amendment

The 1973 constitution provided 20 reserved seats for women in the National Assembly until the
holding of the third general elections. The limit of the third general election expired with the
holding of the 1988 General elections. The concept of women's representation on reserved seats
was introduced to provide representation to women section of society in political institutions.
They were largely marginalized and deprived of equal opportunities for political participation. In
the 1977 elections, Begum Nasim Wali Khan was the only woman, who got elected from two
general seats of the National Assembly from the PNA platform. In the 1985 partyless elections,
SSyeda Abid Hussain won elections from the Jhang constituency of Punjab province. In the 1988
elections, PPP entered the electoral arena under the leadership of Benazir Bhutto and Nusrat
Bhutto, both were elected in the National Assembly as well. The young Benazir Bhutto assumed

126
the office of the Prime Minister of the Islamic Republic of Pakistan as the first women prime
minister of the Muslim world. She was an exceptional case, generally, women have no
representation in the elected houses. The eleventh amendment was moved in the Senate on
December 31, 1989 by Senators, Muhammad Ali Khan, Dr. Noor Jehan Pame Zai and Syed
Faseih Iqbal. The relevant standing committee submitted its report on August 29, 1990. The
amendment asked for an extension of the reserved seats of women till 4th general election
instead of the third election. The amendment was finally withdrawn by its movers on August 23,
1992, after the assurance from the law minister for legislation on the said issue. The IJI and PPP
failed to achieve consensus due to political polarization and politics of conformation. Due to the
absence of legislation, women were deprived of the reserved seats previously available to them
ultimately women's representation was restored during the Musharraf era.

7.7 Ahmad Tariq Rahim Case Comment [FK31]: Adjust on the next page.
Comment [SK32]: Adjusted accordingly

President Ghulam Ishaq Khan on the behest of establishment dismissed the government of
Benazir Bhutto on August 6, 1990. The application of Article 58-2B was used again to dismiss
the elected government and elected national and provincial Assemblies. The presidential order
was challenged initially in the different high counts and then in Supreme Court after the Lahore
High Court‘s decision of upholding the order. The high courts also validated the reasons for the
dismissal of the government levelled by the president. That decision was challenged in the
Supreme Court by Khanja Ahmad Tariq Rahim who was a Senior lawyer and political leader of
the PPP. The supreme court after hearing of the case upheld the decision of Lahore High Court
by a majority decision. The court also examined the reasons for the dismissal of the government
by the president in a dissolution order. The court dextrose that a constitutional crisis existed due
to the government's failure to create a council of common interest and its failure regarding the
National Finance Commission Award. The political tension between center and provincial
governments was also highlighted. The court also highlighted the defection of the members of
the National Assembly during the no-confidence move against the democratic norms and
political culture. Justis Abdul Shakor and e Justice Sajid Ali Shah differed on the majority
decision for different reasons. That decision further arntarnished the image of the PPP and
undermined min its electoral performance. The IJI under Nawaz Sharif emerged as the
beneficiary of the situation and received the support of the establishment as well.

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7.8 Twelfth Constitutional Amendment

During the 1980s and 1990 Pakistan witnessed a rising trend of extermination and military. The
Pakistani society was militarized during that era, weapon culture was promoted as well. Along
with religious extermission sectarianism also extended in the body polities of Pakistan. There
were armed clashes among different groups in different pockets of Pakistan. The sectarian
violence witnessed a tremendous rise. The Judicial system of the state failed to deliver speedy
justice to check these heinous crimes and acts of terrorism.

Prime Minister Nawaz Sharif‘s government decided to establish special courts for the trial of
these gruesome and heinous crimes. These special courts were established as a temporary
measure, it would expire after three years. Their term was started from July 1991 to July 1994.
The special courts were comprised of Judges, eligible to become the Judge of the High Court.
The special courts were assigned these responsibilities to conduct the trials of heinous ccrimes
and acts of Terrorvision. The Courts were instructed to conduct speedy trials for the quick
dispensation of the Justice. The right of appeal was granted to Supreme Court as an appellate
tribunal. The government can determine the territorial limits of these courts, in the case of more
athan one court in an area. After three years of functioning, the courts would expire and the new
article 212-B cease to be part of the constitution. Through the amendment in the 5the schedule
of the constitution government also decided to raise the salaries and pensions of the Judges of the
High courts and Supreme Court.

7.9 Nawaz Sharif Case

In the 1990 elections, IJI emerged as a leading alliance it rcaptured 105 seats, while PDA
captured only 45 seats. Nawaz Sharif became the Prime Minister and Behazir Bhuttoo assumed
the role of opposition leader. Ms. Bhutto alleged that elections were rigged in the favor of IJI by
the establishment, soon conflicts emerged between President Ghulam Ishaq Khan and Prime
Minister Nawaz Sharif on the exercise of powers and the issue of key appointments that conflict
reached its climax when Nawaz Sharif addressed the nation and alleged president for

128
destabilizing the government. In retaliation president dismissed the government and dissolved
Assemblies on April 18, 1993. The presidential order was challenged in the Supreme Court by
Ghoar Ayub Khan, the speaker of the National Assembly. The eleven members bench of the
Supreme Court under the leadership of Chief Justice Nasim Hassan Shah started day to day
hearing of the case. The majority of the Judges restored the Prime Minister, his cabinet and the
Assembly only Justice Sajjad ALI Shah differed with the majority decision. He differed on the
merit and question of maintainability. He also observed that the prime minister of Sindh was not
restored previously, while the PM from Punjab was restored. The majority of judges observed
that the president destabilized the system. Nobody can destroy a state organ which is comprised
a chosen representative of the people. They also refuted the allegations leveled by the president.
Justice Rafiq Tarar in his additional note declared that presidential action and use of article 58-
2B without substantial grounds should be treated as a violation of the constitution. After his
historic restoration, PM assumed power again, and the conflict between the president and PM
entered into a new phase, which ultimately resulted in the removal of both from power after the
intervention of the Chief of Army Staff in July 1993. A new caretaker setup was installed for
the holding of fresh elections in Pakistan.

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 SELF-ASSESSMENT QUESTIONS

1. What were the key political and legal challenges faced by Pakistan between 1984 and
1993 that led to constitutional amendments?
2. What was the significance of the Nusrat Bhutto case in the context of constitutional
amendments?
3. What were the main provisions of the Eighth Amendment, and how did it affect the
powers of the President? Also, discuss its long-term impacts.
4. What changes did the Ninth and Tenth Amendments introduce to the Constitution?
5. How did the Haji Saifullah case challenge the legal framework of Pakistan, and what was
its impact on subsequent amendments?

130
Unit 8

Amendments from 1997 to 2008

Written by: Muhammad Sajid Khan

Reviewed by: Dr. Zafar Mohyuddin

131
 CONTENTS
Page #
Introduction .............................................................................................. 132

Objectives and Learning Outcomes ............................................................ 132

1. Thirteenth Amendment (Reversing Eighth Amendment)………….. 134

2. Fourteenth Amendment (Outlawing Floor Crossing)……………… 134
3. Fifteenth Amendment (Enforcement of Shariah)………………….. 134
4. Sixteenth Amendment (20 Years Extension in Special Quota)……. 135
5. Zafar Ali Shah Case………………………………………………… 135
6. Seventeenth Amendment (Restoring Eighth Amendment and
Legalizing Musharraf‘s Acts)……………………………………… 135
7. Dismissal of The Chief Justice…………………………………….. 136
8. November 2007 PCO………………………………………………. 136
9. The Lawyer Movement for the Restoration of Judiciary in Pakistan .. 136

Self-Assessment Questions ........................................................................... 138

132
INTRODUCTION
In the constitutional history of Pakistan, the period from 1997 to 2008 is very important. The
period from 1997 to 2008 in Pakistan was marked by significant constitutional amendments that
shaped the country's political landscape. This unit critically examines the key amendments and
events during this period, highlighting their implications for democracy, judicial independence,
and civil society. Along with key amendments, judicial cases, and the notable Lawyer Movement
that emerged during this tumultuous era are discussed. The unit also explores significant events
like the Zafar Ali Shah case, the dismissal of the Chief Justice, and the Lawyer‘s Movement for
judicial restoration. Students will critically examine how these amendments reflected the tension
between executive authority and judicial independence, as well as their lasting effects on
Pakistan‘s constitutional framework.

OBJECTIVES
After the study of this unit, you will be able to:
1. Understand the constitutional journey in Pakistan from 1997 to 2008.
2. Comprehend the various amendments introduced in the Constitution of Pakistan.
3. Examine the different events that occurred in connection with these constitutional
amendments.
4. Understand the significance of the constitutional amendments introduced from 1997 to
2008.
5. Analyze the political and legal motivations behind each amendment, particularly the
reversal of the Eighth Amendment and the outlawing of floor-crossing.
6. Discuss the role of these amendments in strengthening or weakening Pakistan‘s political
and judicial systems.
7. Examine key legal cases such as Zafar Ali Shah and political events, such as the
dismissal of the Chief Justice, in shaping these amendments.
8. Assess the impact of the Lawyer‘s Movement and the restoration of the judiciary on the
constitutional amendments.

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LEARNING OUTCOMES

After the study of this unit, you will be able to:

1. Identify and describe the major amendments introduced from 1997 to 2008, including the
Thirteenth to Seventeenth Amendments.
2. Understand the context in which these amendments were passed and their implications
for the political and judicial landscape of Pakistan.
3. Evaluate the role of the judiciary, executive, and political actors in influencing these
amendments.
4. Critically assess the long-term impact of the amendments on Pakistan‘s democracy,
particularly in relation to judicial independence and political stability.
5. Explain the significance of key legal cases, such as the Zafar Ali Shah case, and political
movements in influencing constitutional change.

134
8.1 Thirteenth Amendment (Reversing Eighth Amendment)

The Thirteenth Amendment, enacted in 1997, sought to reverse the Eighth Amendment, which
had previously granted extensive powers to the President of Pakistan, including the authority to
dissolve the National Assembly. This amendment was a crucial step towards restoring
parliamentary sovereignty, as it eliminated the President‘s power to unilaterally dismiss the
elected government.

The move was hailed by many as a return to democratic principles, emphasizing the importance
of parliamentary governance. The Thirteenth Amendment underscored a growing consensus
among political leaders that the concentration of power in the presidency was detrimental to
democracy. It was a clear indication of the commitment to strengthening the legislative branch of
government and ensuring that elected representatives retained their authority.

8.2 Fourteenth Amendment (Outlawing Floor Crossing)

Shortly after the Thirteenth Amendment, the Fourteenth Amendment was introduced to outlaw
―floor crossing.‖ This practice, wherein members of the legislature changed their political
allegiance after elections, was seen as a threat to political stability and party integrity. The
amendment aimed to curb defections and maintain the legitimacy of electoral mandates.

By disallowing floor crossing, the Fourteenth Amendment sought to promote party loyalty and
discourage opportunism among politicians. However, critics argued that it also restricted the
political rights of individuals, as it limited their ability to change parties based on political
realities or ideological shifts. The debate surrounding this amendment highlighted the tension
between party discipline and individual political freedom in Pakistan‘s evolving democracy.

8.3 Fifteenth Amendment (Enforcement of Shariah)

The Fifteenth Amendment was introduced in 2003, seeking to enforce Shariah law in the
country. This amendment emerged in the context of rising Islamic sentiments and demands for
the implementation of Shariah principles in governance. It aimed to align Pakistani laws with
Islamic injunctions, reflecting the influence of religious parties in the political arena.

However, the amendment raised concerns among secular and liberal segments of society, who
feared that its implementation could undermine the constitutional guarantees of minority rights
135
and lead to an erosion of civil liberties. The debate surrounding the Fifteenth Amendment
illustrated the ongoing struggle between secularism and religious conservatism in Pakistan‘s
constitutional and political framework.

8.4 Sixteenth Amendment (20 Years Extension in Special Quota)

The Sixteenth Amendment, passed in 2004, extended the special quota system for 20 years. This
system was designed to provide representation and opportunities to marginalized groups and
regions, particularly in the context of socio-economic disparities. The amendment aimed to
ensure continued support for these groups, recognizing the historical injustices they faced.

While the special quota system was intended to promote inclusivity, it also sparked debates
about meritocracy and the potential for patronage politics. Critics argued that extending the quota
could perpetuate inequalities rather than address them, raising questions about the effectiveness
of such measures in achieving true representation and equity.

8.5 Zafar Ali Shah Case

The Zafar Ali Shah Case was a landmark judicial decision that had significant implications for
the political landscape of Pakistan. The case arose in the aftermath of General Pervez
Musharraf‘s coup in 1999, which led to the suspension of the constitution. Zafar Ali Shah, a
lawyer, challenged the legality of Musharraf‘s actions and sought the restoration of the
constitution.

The Supreme Court‘s ruling in this case was pivotal in legitimizing Musharraf‘s regime while
also emphasizing the need for constitutional governance. The court upheld Musharraf‘s decision
to abrogate the constitution but mandated that elections be held within a specified timeframe.
This ruling demonstrated the judiciary‘s complex role in balancing the demands of democracy
with the realities of military rule.

8.6 Seventeenth Amendment (Restoring Eighth Amendment and Legalizing Musharraf’s

Acts)

In 2003, the Seventeenth Amendment was enacted, effectively restoring many provisions of the
Eighth Amendment, which had been reversed by the Thirteenth Amendment. This amendment

136
aimed to legalize actions taken by General Musharraf during his rule, including the dismissal of
the judiciary and the imposition of the Provisional Constitutional Order (PCO).

The Seventeenth Amendment was controversial, as it raised questions about the judiciary‘s
independence and the legitimacy of the military‘s role in politics. Critics argued that the
amendment undermined the principles of accountability and the rule of law, reinforcing the
perception of a military-dominated political environment.

8.7 Dismissal of The Chief Justice

One of the most contentious events during this period was the dismissal of Chief Justice Iftikhar
Muhammad Chaudhry in March 2007. His removal was justified by the government on grounds
of misconduct; however, many viewed it as an attempt to undermine the judiciary‘s
independence and curb its authority.

The dismissal triggered widespread protests and marked the beginning of the Lawyer Movement,
as lawyers and civil society rallied to demand the restoration of the Chief Justice. This movement
played a crucial role in mobilizing public opinion against the military regime and highlighted the
importance of judicial independence in a democratic society.

8.8 November 2007 PCO

In November 2007, General Musharraf declared a state of emergency, suspending the

constitution once again and imposing the Provisional Constitutional Order (PCO). This move
was met with widespread condemnation both domestically and internationally, as it represented a
significant setback for democratic governance in Pakistan.

The PCO effectively nullified the authority of the judiciary, leading to the detention of numerous
judges and lawyers who opposed Musharraf‘s actions. The declaration of emergency marked a
critical juncture in Pakistan‘s political history, as it intensified public dissent and galvanized the
Lawyer Movement against the military‘s encroachment on civil liberties.

8.9 The Lawyer Movement for the Restoration of Judiciary in Pakistan

The Lawyer Movement emerged as a powerful force advocating for the restoration of the
judiciary and the rule of law in Pakistan. Spearheaded by lawyers and supported by civil society,

137
the movement organized protests, sit-ins, and campaigns to demand the reinstatement of Chief
Justice Iftikhar Chaudhry and the independence of the judiciary.

The movement gained significant momentum, drawing attention to the violations of human
rights and the erosion of democratic institutions under military rule. It united various segments of
society, including political parties, students, and activists, in a common cause to challenge the
authoritarianism of Musharraf‘s regime.

The culmination of the Lawyer Movement came in 2008 when the Pakistan Peoples Party (PPP)
and the Pakistan Muslim League-Nawaz (PML-N) formed a coalition government after winning
the general elections. The new government faced immense pressure to restore the judiciary,
leading to the eventual reinstatement of Chief Justice Iftikhar Chaudhry in July 2009.

8.10 Conclusion

The amendments to the Constitution of Pakistan from 1997 to 2008 reflect a complex interplay
of political forces, judicial developments, and civil society activism. While some amendments
aimed to strengthen democratic principles, others were seen as attempts to consolidate power and
undermine the judiciary‘s independence.

The period was marked by significant events, including the rise of the Lawyer Movement, which
played a crucial role in advocating for judicial restoration and democratic governance. As
Pakistan continues to navigate its political landscape, the legacy of these amendments and
movements remains a critical aspect of the ongoing struggle for democracy and the rule of law in
the country.

In retrospect, this era serves as a reminder of the fragility of democratic institutions and the need
for vigilance in safeguarding constitutional rights and liberties. The lessons learned from this
tumultuous period remain relevant as Pakistan grapples with its identity as a democratic nation in
a challenging geopolitical context.

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 SELF-ASSESSMENT QUESTIONS

1. Discuss in detail the constitutional journey of Pakistan from 1997 to 1999.

2. Critically examine the constitutional amendments introduced in the second term of
Mian Muhammad Nawaz Sharif.
3. Discuss the seventeenth constitutional amendment introduced in the Musharaf Era.
4. Discuss the Zafar Ali Shah Case.
5. Write a comprehensive note ―The Lawyer Movement for the Restoration of Judiciary
in Pakistan‖.

139
Unit 9

Amendments from 2009 Todate

Written by: Muhammad Sajid Khan

Reviewed by: Dr. Muhammad Abrar
Zahoor

140
 CONTENTS
Page #
Introduction .............................................................................................. 140

Objectives and Learning Outcomes ............................................................ 140

1. PCO Judges Case…………………………………………………… 143

2. Eighteenth Amendment (Reversing Seventh Amendment and
Devolving Powers)…………………………………………………. 143
3. Munir Hussain Bhatti and Sindh High Court Bar Case
4. Nineteenth Amendment (Appointment of Judges)………………….. 149
5. Imran Khan Case……………………………………………………. 150
6. Twentieth Amendment (Protecting By-Elections)………………….. 151
7. Twenty-first Amendment (Military Courts)………………………… 152
8. District Bar Association, Rawalpindi Case…………………………. 152
9. Twenty-Second Amendment (Chief Election Commissioner Powers).. 153
10. Twenty-Third Amendment (Extension of Military Courts)…………… 153
11. Twenty-Fourth Amendment …………………………………………… 154
12. Twenty-Fifth Amendment……………………………………………… 155
Self-Assessment Questions ........................................................................... 157

141
INTRODUCTION

The period from 2009 to the present has witnessed significant constitutional amendments in
Pakistan, reflecting the evolving political and judicial landscape. These amendments aim to
address governance issues, judicial independence, and the balance of power between the
executive, judiciary, and military. Key amendments such as the Eighteenth Amendment, which
reversed the Seventeenth Amendment and devolved powers to provinces, and the Nineteenth
Amendment, which reformed the process of judicial appointments, have had a lasting impact on
Pakistan‘s political framework. Additionally, the Twenty-first Amendment, which established
military courts, and the Twenty-third Amendment, which extended military court jurisdiction,
have been pivotal in addressing national security concerns. This unit examines these
amendments and the legal cases that have shaped them, offering a comprehensive overview of
Pakistan‘s constitutional evolution in recent years.

OBJECTIVES
After the study of this unit, you will be able to:
1. understand the significance of the eighteenth constitutional amendment in
Pakistan‘s constitutional history
2. learn the political context of Pakistan in which various amendments were carried
out
3. analyze the impact of the nineteenth amendment on the apex Judiciary
4. no amendments that allowed the establishment of military courts
5. Understand the significance of constitutional amendments from 2009 to date,
including the Eighteenth to Twenty-third Amendments.
6. Analyze the reasons behind these amendments, particularly in relation to judicial
reforms, the devolution of powers, and the expansion of military authority.
7. Discuss key legal cases, such as the PCO Judges Case, Munir Hussain Bhatti Case,
and District Bar Association, Rawalpindi Case, in shaping the constitutional
amendments.
8. Evaluate the impact of these amendments on the balance of power between
different branches of government in Pakistan.

142
 9. Assess the role of these amendments in addressing political, judicial, and security
challenges in Pakistan.
LEARNING OUTCOMES
After the study of this unit, you will be able to:
1. Examine the significance of the eighteenth constitutional amendment in Pakistan‘s
constitutional history
2. Evaluate the political context of Pakistan in which various amendments were
carried out
3. Comprehend and discuss the impact of the Nineteenth Amendments on the apex
Judiciary
4. no amendments that allowed the establishment of military courts
5. Identify and describe the major constitutional amendments from 2009 to date,
including the Eighteenth to Twenty-third Amendments.
6. Critically evaluate the political, legal, and social motivations behind these
amendments and their implications for Pakistan‘s governance.
7. Understand the impact of legal cases like the PCO Judges Case and Munir Hussain
Bhatti Case on the constitutional landscape.
8. Discuss the effects of military court legislation, particularly the Twenty-first and
Twenty-third Amendments, on the legal system and human rights in Pakistan.
9. Reflect on the role of the judiciary and executive in shaping these constitutional
reforms, particularly in relation to judicial independence and national security.

143
9.1 The PCO Judges Case

The PCO (Provisional Constitutional Order) Judges case refers to cases heard and decided by
the Pakistan Supreme Court related to the High Court and Supreme Court judges who took their
oaths of office under the PCO in 2007. On 3 November 2007, President Pervez
Musharraf declared a Provisional Constitutional Order that declared a state of emergency and
suspended the Constitution of Pakistan. According to these emergency laws, all the Supreme
Court justices including High CCourt judges were asked to take oath under this Provisional
Constitutional Order. Those who did not comply were placed under forcible house arrest. A
bench comprising seven members issued a restraining order on the same day, by barring the
government from implementing emergency rule.

The Provisional Constitutional Order Judges case examined the constitutionality and legality of
the steps taken by Musharraf in declaring a state of emergency, and contempt of court charges
against justices who took oath under the Provisional Constitutional Order in violation of the
restraining order.

On July 31, 2009, after hearing constitutional petitions related to PCO judges, the appointment of
various judges, and the steps taken in declaring an emergency in the country in 2007, the
Supreme Court decided the declaration of emergency rule by Musharraf as unconstitutional
under Article 279 of the Constitution. The Supreme Court also declared the steps taken by
declaring the state of emergency as null and void ab initio and particularly ruled that the judges‘
removal were unconstitutional and illegal measures. This included the removal from office of the
Chaudhry and other justices. The appointment of Abdul Hamid Dogar and all justices from 3
November 2007 to 24 March 2008 was deemed unconstitutional. Musharraf‘s increase in the
number of judges, realized through a finance bill, was declared unconstitutional, and the number
of judges was fixed at seventeen. The verdict did not change the legality of the new government
nor the presidential oath taken by Asif Ali Zardari.

9.2 Eighteenth Amendment (Reversing Seventh Amendment and Devolving Powers)

The Eighteenth Constitutional Amendment is a landmark document in the constitutional and

political history of the country. It incorporated the largest number of changes in the Constitution

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as compared to any other single constitutional amendment. It introduced 97 alterations, deletions,
replacements, and additions in the main text of the Constitution of Pakistan 1973. One addition
was made in the Annex and four changes and deletions were made in the third, fourth, sixth and
seventh Schedules. This brings the total changes to 102.67

The history of the eighteenth amendment can be traced from the fact that during 2007-2008
different political parties expressed their intent to amend the constitution to strengthen its
democratic and parliamentary character and review the changes made by the military
governments of Zia ul-Haq and Pervez Musharraf. Asif Ali Zardari, soon after assuming power
as President in 2008, expressed his desire to shift some important Presidential powers to the
Prime Minister and the Parliament. Hence, it was in June 2009 that a committee was formed in
both houses of the parliament under the title of Parliamentary Committee on Constitutional
Reforms.68

The committee was comprised of twenty-six members from two major political parties i.e. PPP
and PML (N) and twelve other political parties. One independent member was also included in
the exercise. The parliamentary committee elected Mian Raza Rabbani as its head in its first
meeting on June 25, 2009.

This parliamentary committee invited suggestions and ideas for the changes to be introduced in
the constitution and any citizen could send in his/her recommendations. It received 982 proposals
and recommendations from the public which were all discussed in detail in the committee
meetings. In addition, the committee also reviewed the three drafts of constitutional amendments
circulated by the PML-N, PML-Q and MQM before constituting the Parliamentary Committee.
The members representing different political parties presented diversified political opinions and
views on constitutional issues. However, all of them exhibited flexibility in their opinions so that
a consensus could be created on a draft of the amendments. Few political parties attached their
brief notes of dissent, described as the notes for reiteration of their party‘s official positions on
constitutional issues. Despite minor differences on some issues, all of the members signed the
mutually agreed draft bill on March 31, 2010.69

67
Rizvi, Pakistan Political and Constitutional Engineering, 617.
68
Rizvi, Pakistan Political and Constitutional Engineering, 618.
69
Daily Dawn, 31 March, 2010.

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Senator Raza Rabbani, chair of the Parliamentary Committee on Constitutional Reforms,
maintained that the new amendments emphasized the accommodation of cultural and ethnic
diversity ―to strengthen cohesion and solidarity of the federation,‖ provincial autonomy and
participatory federation ―wherein provinces feel that they are part of the federation and citizens
feel that they have some stakes in Pakistan‖; interprovincial harmony and addressing the issues
through dialogue within the framework of the constitution.70

President Asif Ali Zardari argued that the amendments would lead to a new beginning and that
these changes would make the constitution ―truly democratic and federal in character and
guarantee rights and sovereignty for provinces.‖ The prominent features of the Eighteenth
Constitutional Amendment are as below:

1. The spellings of Sind and Baluchistan were changed to Sindh and Balochistan. The
province, NWFP, was renamed as Khyber-Pakhtunkhwa (KP). The change of name
proved to be a controversial exercise because its rationale was questioned by some
members, particularly those demanding a separate province of Hazara in KP.
2. The scope of Article 6 (1) dealing with High Treason was expanded. The revised
provision reads: ―Any person who abrogates or subverts or suspends or holds in abeyance
or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the
Constitution by force or show of force or by any other unconstitutional means shall be
guilty of high treason.‖ The sub-clause (2) stipulates that ―Any person aiding or abetting
or collaborating‖ the acts mentioned in 6 (1) would also be guilty of high treason. The
Supreme Court or a High Court would not validate an act of High Treason.
3. Three new fundamental rights were added to the Constitution. These were Article 10-A,
the right to a fair trial and due process; Article 19-A, the right of citizens to obtain
information about all issues of public importance; Article 25-A, the state‘s obligation to
provide ―free and compulsory‖ education to all children between the ages of five to
sixteen years in a manner determined by law.
4. The powers of the President were reduced and the balance of power was decisively tilted
in favour of the Prime Minister and the Parliament. The PM was designated as the chief
executive who along with the cabinet exercised the executive powers in the name of the

70
Rizvi, Pakistan Political and Constitutional Engineering, 620.

146
 President. His advice was binding on the President. However, within fifteen days of
receiving the advice the President could ask the Prime Minister and the cabinet to
reconsider it. If the advice was sent back to the President after reconsideration, the
President was bound to act on it within ten days.
5. The President‘s power to dissolve the National Assembly in his discretion (Article 58-2b)
was repealed. He could dissolve the National Assembly on the advice of the Prime
Minister only. The only time the President could exercise his discretion for dissolving the
National Assembly was when a VONC had been passed against the Prime Minister and
no other member of the National Assembly was in a position to command the confidence
of the majority of the members of the national assembly, as proved in the session of the
national assembly summoned for that purpose. The powers of provincial governors were
also reduced in relation to the Chief Minister in line with the new equation between the
President and the Prime Minister.
6. The President could issue an ordinance except when the Senate or the National Assembly
was in session. The ordinance remained effective for 120 days unless approved by the
Parliament. Such an ordinance could be reissued once only by a resolution of either house
of Parliament.
7. The size of the cabinet was also fixed by this amendment. The strength of the cabinet –
ministers and ministers of state—would not exceed eleven percent of the total
membership of the parliament. In the case of provinces, the size of the cabinet could not
exceed 15 members or 11 percent of the total membership of a provincial assembly,
whichever, is larger. The maximum strength of the Senators in the Federal Cabinet would
not exceed one-fourth of the number of federal ministers.
8. The restriction imposed by the government of Pervez Musharraf in 2002 prohibiting a
person from holding the office of Prime Minister or Chief Minister for more than two
terms was removed. After this amendment, a person could hold these offices as many
times as the National Assembly or the Provincial Assembly elected him/her.
9. The strength of the Senate was increased from 100 members to 104 by reserving four
seats for non-Muslims, one from each province. Mandatory working days of the senate
were fixed as 110 in a parliamentary year. The federal cabinet was declared as

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 collectively answerable to both houses of Parliament. The government‘s report on
implementation of the principles of policy would also be placed before the Senate.
10. A person would be disqualified from becoming a member of the Parliament for five years
from the date of conviction by a court for propagating an opinion or undermining the
ideology of Pakistan or the sovereignty and security of the country, ridiculing the
judiciary and armed forces.
11. Article 63-A provided that a parliamentarian could be disqualified if he resigned from his
party or joined another party or voted or abstained from voting in violation of the
directions given by the ―Parliamentary Party‖ pertaining to four issues: election of the
Prime Minister or a Chief Minister, a vote of confidence or no-confidence, money
bill/budget, and a constitutional amendment.
12. The procedures for the appointment of judges of the S Supreme Court, high courts, and
Federal Shariat Court were changed. A judicial commission was set up to recommend
the names for these appointments. For the appointment of a judge of the S Supreme
Court, the Judicial Commission comprised seven members: the Chief Justice of Pakistan
(Chairman), two senior-most judges of the Supreme Court, a former chief justice or a
former judge of the Supreme Court, federal minister for law and justice, Attorney
General of Pakistan and a lawyer nominated by the Pakistan Bar Council for a period of
two years. Likewise, a similar procedure was laid out for the appointment of judges of the
Islamabad High Court.
13. The nomination of judges to be appointed by the Judicial Commission would be sent to a
Parliamentary Committee comprised of eight members of the Parliament, four of them to
be taken from the Senate and four from the National Assembly. The government and
opposition were to be given equal representation in the committee and government
members would be nominated by the leader of the house and opposition members to be
nominated by the leader of the opposition.
14. The strength of the Election Commission was increased from three to five members: the
Chief Election Commissioner and one member or Commissioner from each province.
The CEC is to be appointed through a thorough process. The Prime Minister and leader
of the opposition would agree on three names for the post and the names would be sent to
a parliamentary committee comprised of not more than twelve members, one-third of

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 them from the Senate. The government and opposition were to to have equal
representation in this process.
15. A caretaker administrative setup would be installed at the federal and provincial levels if
the national and provincial elections were to be held. The caretaker prime minister would
be appointed by the President in consultation with the outgoing prime minister and leader
of the opposition in the National Assembly.
16. Article 140A articulated the establishment of ―a local government system and devolve
political, administrative and financial responsibility and authority to the elected
representatives of the local government.‖ However, the role and powers of the local
government were to be determined by a provincial law.
17. The share of provinces in each award of the National Finance Commission would not be
―less than the share given to the provinces in the previous award.‖ The implementation of
the NFC award would be supervised by the Federal Finance Minister and Provincial
Finance Minister who reported on this matter to the houses of the Parliament and the
Provincial Assemblies (Article 160-3A and 3B).
18. The original Constitution of 1973 provided two lists of legislative powers in Schedule
Four: The federal list and concurrent list. Both the Parliament and Provincial Assembly
could legislate on any subject included in the concurrent list. Nonetheless, the federal list
had priority over the provincial list.
19. The changes introduced in the Legislative list required the transfer of over 22
departments and divisions from the federal government to provinces. These departments
and divisions included inter alia, education, health, agriculture, food, climate change,
women's development, rural development, youth affairs, population welfare, religious
affairs, tourism and sports. This transfer was planned to take place in different phases.
20. The military takeover by Gen. Pervez Musharraf and his subsequently introduced
proclamations and laws issued by the military government from time to time were
declared illegal and without lawful authority under Article 270AA(1).71
21. Minor changes were introduced in the oaths of the Prime Minister, Chief Minister,
Provincial Ministers, Speaker of the Provincial Assembly, Chief Justice and judges of the
Federal Shariat Court.

71
Rizvi, Pakistan Political and Constitutional Engineering, 622-23.

149
This amendment was a huge and unprecedented exercise of constitutional engineering in the
country. It was the credit of the parliamentary parties and particularly the Pakistan Peoples‘
Party‘s leadership who took responsibility and created the required consensus among all the
major political forces in the country. In May 2010, a Commission was established comprising
members of the parliament to look after the implementation of the Eighteenth Amendment. This
Commission was headed by Senator Raza Rabbani. A major focus of this Commission remained
on provisions related to the enhancement of provincial autonomy, transfer and devolution of
various subjects and abolition of the Concurrent Lists.

9.3 Nineteenth Amendment (Appointment of Judges)

Some political circles criticized the Eighteenth Constitutional Amendment on the basis that it
excluded the clause regarding the regular holding of party elections. Nonetheless, the major
focus of the legal fraternity and some other sections of society was on Article 175A that
introduced a two-step procedure comprising the Judicial Commission and the Parliamentary
Committee for the selection of judges of the superior courts. Some of the lawyers and the Bar
Councils maintained the inclusion of the Federal Law Minister and Attorney General in the
Judicial Commission, each with a vote equal to the vote of the judicial members introduced
political elements in this process.

Article 239(5) of the Constitution stipulated that ―No amendment of the Constitution shall be
called in question in any court on any ground whatsoever.‖72 The clause 6 of this Article says
that ―there is no limitation whatsoever‖ on the Parliament ―to amend any of the provisions of the
Constitution.‖73 However, 25 organizations of lawyers, other groups and individuals approached
the Supreme Court on the new procedure for the appointment of judges laid down in the
Eighteenth Constitutional Amendment. Iftikhar Muhammad Ch., Chief Justice, established a full
court bench and announced a judgment on October 21, 2010, asking the Parliament to ―re-
examine the matter‖ keeping in view the court‘s observations in this regard.

These observations were accommodated, under the pressure of the Supreme Court, by the
Parliament through passing the Nineteenth Constitutional Amendment which was passed the

72
Rizvi, Pakistan Political and Constitutional Engineering, 630.
73
Rizvi, Pakistan Political and Constitutional Engineering, 630.

150
National Assembly with 258 votes in favor and one against on December 22, 2010. It was
approved by the Senate unanimously on December 30th.74 This amendment enhanced the role of
Chief Justice and increased the number of judicial members in the Judicial Commission. Ever
since the passing of the Nineteenth Constitutional Amendment, the Chief Justice and judicial
members of the Judicial Commission dominated the appointment of judges of the Supreme Court
and the High courts.

9.4 Imran Khan Case

The 18th constitutional amendment proposed the new formation of election commission of
Pakistan after amending the relevant articles of the constitution. The composition of ECP was
increased from 3 to 5 members. The new ECP was comprised of chief election
commissioner and one member from the each province. The process of the selection of ECP
members was changed. It resulted in the postponement of the composition of the new ECP.
Meanwhile by-elections were held at different provincial and national assembly‘s
constituencies as well. There was a total of 28 members of parliament elected in by-elections
due to those casual vacancies. Imran khan the leader of PTI challenged these by-elections on
the pretext that election was held in the absence of constitutional ECP. Imran khan also
challenged the electoral rolls, he claimed that these voters lists had bogus votes.
Chief justice of supreme court of Pakistan, Iftikhar Muhammad Chaudhary and three other
judges heard that constitutional petition and issued its verdict on 6th February 2012. The
supreme court, after hearing the case issued instructions to the government for the
introduction of the constitutional amendment to provide legal cover to these by-elections.
The court claimed that it exercised judicial restraint and provided reasonable time to
introduce constitutional amendment. The 19th amendment was already introduced on the
judicial pressure on the issue of judicial appointment.
Now the SC was directing the parliament to introduce 20th constitutional amendment due to
legal complexities. The ECP also involved NADRA in the preparation of new electoral rolls,
free of bogus entries. The SC informed by NADRA that it started preparing new list of voters
for the constituencies, where by-elections were going to be held under the instruction of ECP.
Only a few members, who were elected through by elections opted to defend their position.

74
Rizvi, Pakistan Political and Constitutional Engineering, 630-32.

151
 The Supreme Court, considering the delay in the adoption of amendment by the parliament
decided to suspend the membership of elected parliamentarians for the period of absence of
the constitutional amendment. The membership would be restored after the adoption of the
amendment by the parliament. Finally, the parliament adopted the amendment and condoned
these by elections which were held during that period. The membership of 28
parliamentarians including senators, MNAs and members of provincial assemblies was
restored. The judiciary claimed that it showed judicial restraint on that issue, while
parliament perceived it as an intervention in legislative process through judicial activism.
Imran khan perceived it as his legal victory. The Supreme Court claimed that it that holding a
free and fair elections according to the law was the responsibility of election Commission of
Pakistan. The supreme court also assumed the role that judges oath required the protection
and implementation of the constitution. The judges assumed the role of custodians and
guardian of the constitution as their legal and constitutional obligation.

9.5 Twentieth Amendment (Protecting By-Elections)

The Twentieth Amendment bill was passed by the National Assembly on February 14, 2012. It
was then moved to the Senate where it was passed on February 20, 2012, and signed by
the President on February 28, 2012. The amendments were carried out in Article 48, Article 214,
Article 215, Article 216, Article 218, Article 219, Article 224, Article 224A, and to the Second
and Third Schedule to the Constitution. It laid down a process to install a caretaker setup and
hold free and fair elections and matters related to the office of the Chief Election Commissioner
and Members of EC.

The amendment reduced the number of committees at provinces for appointing caretaker chief
ministers and their cabinets. It required to constitute an eight-member committee each at the
Center and the Provinces to nominate the prime minister and the chief ministers respectively and
their cabinets. In case the constituted committees failed to evolve consensus on a caretaker setup
within three days, the matter would be referred to the ECP for appointing the caretaker Prime
Minister and Chief Ministers. The Amendment now requires the Chief Justice of Pakistan to
administer oath of the new Chief Election Commissioner, who will then administer the oath to
newly appointed members of the Election Commission.

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The amendment required to follow the same procedure for extension in the tenure of members of
ECP as specified for the Chief Election Commissioner. Similarly, the procedure to remove an
ECP Member would be same as the removal of Chief Election Commissioner. Member of the
ECP is now required to send his resignation to the President. Under this amendment, the
provision of not holding an office of profit would now also apply to the members of ECP like the
Chief Election Commissioner.
9.6 Twenty-First Amendment (Military Courts)

The amendment established military speedy trial courts for terrorist offenses, waging war against
Pakistan, and acts threatening the security of the country. The duration of these courts was to be
two years. The decision to amend the constitution came after the 2014 Peshawar school massacre.
Twenty-first Amendment to the Constitution of Pakistan was passed by both the national
assembly and the Senate on January 6, 2015, and received the assent of the President on January
7, 2015. The Bill amended the Article 175 and the First Schedule of the Constitution. It included
a self-contained sunset clause, which caused the amendments to expire on January 7, 2017.75

9.7 District Bar Association Rawalpindi Case

The District Bar Association Rawalpindi Case came to the Supreme Court of Pakistan on the
consolidated petitions that challenged the 18th and 21st Amendments to the Constitution of the
Islamic Republic of Pakistan, 1973.

A majority of the Court answered the question in the affirmative whether the judiciary can
review the substance of constitutional amendments. Never before had the majority of the apex
court affirmed the existence of a power to sit in judgment over deciding the substance of
constitutional amendments. This ruling was one of the most important constitutional law
decisions in the history of the country. It decided who has the final say and what counts as a
substantively valid constitutional amendment while also revealing the apex court‘s treatment of
the two amendments that seriously impacted the judiciary—these are the new appointment
mechanism for superior judiciary through the inclusion of Article 175-A under the Eighteenth
Amendment and the trial of a specified class of civilians before military courts under the
Twenty-First Amendment.

75
Rizvi, Pakistan Political and Constitutional Engineering, 696-697.

153
The decision is very important because it reveals different conceptions of democracy that are part
and parcel of the legal system. Just like the public on social media, the supreme court judges
strongly disagreed on the extent of the Parliament‘s power to amend the Constitution. A
significant majority, that is, thirteen out of the seventeen Judges, ruled that the Court ―can strike
down a constitutional amendment if it repeals, alters or abrogates the ‗salient features‘ of that
document‖.76 Four Judges ruled that ―the Court has no power to examine the validity of
constitutional amendments‖ and hence they dismissed the petitions.77 Eight other Judges joined
these four in dismissing petitions but these eight Judges ruled that while the power to strike down
constitutional amendments exists; it is not being exercised in the current cases.

9.8 Twenty Second Amendment (Chief Election Commissioner Powers)

This amendment focused on the Election Commission of Pakistan (ECP). The national assembly
passed it unanimously on May 19, 2016, and the Senate approved it on June 2. It received
presidential assent on June 8. The amendment changed the recruitment criteria of CEC and the
members of the Commission. Before this change, only judges of the supreme court and high
courts could be appointed as CEC and members. This amendment laid out that CEC could be a
person who had been judge of the supreme court or a senior ex-civil servant with twenty years of
professional standing and he retired in Grade 22 or above or a technocrat who had at least 16
years of education in an academic institution recognized by the Higher Education, with twenty
years of experience, including a record of achievements at the national or international levels.

9.9 Twenty Third Amendment (Extension of Military Courts)

The military courts which were established through 21st amendment, which expired after
completing its term of two years in January 2017. The PMLN government was interested to
extend the term for another two to three years but some political parties especially Pakistan
People‘s Party, JUI and PKMAP raised objections. The military establishment and
intelligence agencies briefed the parliamentarians regarding the prevailing situations and the
performance of the military courts and requested for extension for another two or three years.
The tough negotiations between the government and opposition parties and the military
establishment ultimately resulted in evolving consensus to introduce the twenty third

76
Rizvi, Pakistan Political and Constitutional Engineering.
77
Rizvi, Pakistan Political and Constitutional Engineering.

154
 amendment in constitution for an extension of the military courts for two years. The bill was
introduced in National Assembly on March 21 and 255 members of the assembly voted in the
favor of constitutional amendment. The members of PKMAP and one independent member
voted against the bill. The JUI-F decided to abstained from the voting, Imran Khan also
skipped the voting process as the party extended support. Later, bill was presented in the
Senate of Pakistan on March 28. It was get approved from 78 members of the Senate of
Pakistan. The JUI-F senators stayed away from the voting process. the president of Pakistan
approved the bill on March 31 and after his approval it become the law of land through
amendment in the Pakistan Army Act 1952. After completing its two years terms the military
courts term was expired on March 30 2019. PTI government was in power under the
leadership of Imran Khan, the government wanted to extend military courts term for another
two years but it lacked required numerical strength in the assembly.
During its functioning, military courts dealt with a total of 717 cases in the four years term.
the courts awarded 284 criminals death sentences 192 prisoners were sentenced with
different periods of imprisonment, two persons were acquitted, and 54 cases were dropped
due to the lack of evidence. After the expiry of the term, there were 185 cases pending in the
courts which were transferred to the regular civilian courts for their trial. The military court
trials were challenged in the high courts and supreme courts. The Peshawar High Court
declared the convictions of 200 and 196 by the military court as invalid in June and July
2020 in two petitions. The Peshawar High court the decision was challenged in the Supreme
Court, its three members bench which suspended the order of the PHC and the case was
pending that case till the hearings of appeal on the cases.
9.10 Twenty-Fourth Constitutional Amendment

After a long delay of almost two decades, Pakistan finally holds a population census, and its results were
notified in 2017. After the provisional results the re-allocation of National Assembly seats according to
provincial share was required. The elections were due in the mid of 2018 after the expiration of the
constitutional term of the Assemblies. The ECP was required to complete the process of delimitations of
the new constituencies after the adoption of the constitutional amendment. The proposed amendment was
first introduced in the National Assembly and the Senate also passed it in December 2017. After receiving
the Presidential assent, it became operational. Due to shifting demographic dynamics, the share of
Baluchistan has increased from 14 general seats to 16 seats and one additional seat for women. KP also
received four additional general seats, and one woman reserved seat. The share of the KP provinces

155
reached 48 from 43 seats. The federal capital also received its third seat after the amendment. The shares
of the Punjab have reduced from 148 general seats to 141 seats. The province also lost its two women
reserved seats. The total share of the Punjab province was reduced from 183 seats to 174 seats. The share
of Sindh and FATA remained the same. The amendment provided the representation to the federating
units according to its respective demographic strength.

25th Constitutional Amendment

The 25th constitutional amendment was introduced as a reform package for FATA. The seven tribal
agencies and six frontier regions, which were previously managed by the federal government, after that
amendment were merged to KP province. The process of mainstreaming of these tribal areas, which were
historically deprived that opportunity from British era. It also abolished the notorious FCR (Frontier
Crimes Regulation) which was introduced by British to manage the security of the region. There was a
concept of collective punishment of individual acts. These reforms were generally welcomed by the
Political parties with few exceptions like JUI-F, which opposed the move. Some tribal elders also
opposed it due to their concerns about the local culture and traditions of tribes and their independent style
of living.

The constitutional amendment was introduced in the National Assembly on May 24 th, 2018. After its
passage from Assembly, the Senate of Pakistan also approved the amendment on May 25 th, 2018. The KP
provincial assembly adopted the amendment within a couple of days. President of Pakistan gave his
assent on May 31st. The amendment introduced changes in following articles of the constitutions of
Pakistan i.e.1, 51, 59, 62, 106, 155 and 245. The amendment redefined the structure and composition of
the state, federations and parliament as well. The amendment abolished the separate representation of
FATA in Senate, the eight seats were reserved for the region were abolished. The amendment reduced the
strength of Senate from 104 to 96 members. There were twelve reserved seats in National Assembly for
FATA before the merger. After the merger the districts were allocated six seats as a share of KP in
National Assembly. That share was determined based on the population of the region.

After the merger the people of the area received representation in the Provincial Assembly as well. The
strength of provincial assembly was increased from 124 seats to 145 seats total. There was total 21 seats
out of them 16 were general seats, four were women reserved, and one seat was reserved from non-
Muslims. The people of ex-FATA first elected their representative for KP Provincial Assembly on July
20th, 2019. The political parties actively participated in the elections. The 2.8 million voters were
registered among them 27.6 % voters exercised their right of vote. The amendment also replaced the
FCR, along with it replaced with ―Rewaj‖ regulation suggested by a committee headed by Sartaj Aziz.

156
The amendment also extended the jurisdiction of the Supreme court and provincial high courts and lower
judiciary. The state of Pakistan had a dynamic constitution with a potential to respond the challenges. The
federal nature of the state required a rigid constitution, so the constitutional amendments were adopted
through national consensus or at least with the support of two thirds majority of both houses of the
parliament.

SELF-ASSESSMENT QUESTIONS

157
 1. How did the eighteenth constitutional amendment restore the Constitution of Pakistan
1973?
2. What series of political events were given birth by nineteenth constitutional amendment?
3. The establishment of military courts had been a controversial matter ab initio. Comment.
4. How did twenty second amendment expand powers of Chief Election Commissioner?

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158
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Ziring, Lawrence. (1998). Pakistan in the Twentieth Century: A Political History USA, OUP.
Rabbani, Mian Raza. (2003) LFO – A Fraud on the Constitution (First Edition), Q. A.
Publishers, Karachi.
All Pakistan Legal Decision (PLD Journals)
Supreme Court Monthly Review (SCMR)
Pakistan Law Site ([Link])

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