Reading Material: Constitutional Development of Pakistan

Constitution: A constitution is a supreme legal document that defines:

• The basic structure of the state,

• Powers and functions of government institutions.
• Fundamental rights and duties of citizens.
Characteristics: Written, Rigid and flexible, Federal and provinces autonomy.

Introduction: Pakistan emerged as an independent State on August 14, 1947. Pakistan is divided
into four provinces -Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa. The tribal belt
adjoining Khyber Pakhtunkhwa was managed by the Federal Government and was formerly
known as FATA, i.e., Federally Administered Tribal Areas. On 31.05.2018, via The Constitution
(Twenty-Fifth Amendment) Act, 2018 FATA was officially merged with the province of Khyber
Pakhtunkhwa. Azad Kashmir and Gilgit-Baltistan have their own respective political and
administrative machinery, yet certain subjects are taken care of by the Federal Government.
Islamabad is the federal capital. 96.5 per cent of the country’s population is Muslim, making up
11.1% of Muslim population in the world, that is second to Indonesia.

About Indian Councils Act (1909) & Government of India Act (1919)

The Indian Councils Act (1909), also known as the Morley-Minto Reforms, and the Government
of India Act (1919), based on the Montagu-Chelmsford Reforms, were two significant legislative
acts aimed at introducing reforms in the administration of India under British rule.

While the former required to enlarge the legislative councils and introduce separate electorates,
the latter attempted to lay the foundation for responsible governance by granting more powers
to the legislatures and introducing dyarchy in provinces. These reforms resulted from mounting
Indian discontent and political activism against colonial rule. While these reforms introduced
incremental changes, such as representation and legislative powers, they were overshadowed by
the divisive policies of separate electorates and restrictive franchises. The Acts, instead of
meeting Indian aspirations, further fueled the demand for complete self-governance, setting the
stage for subsequent constitutional advancements.
Salient Features of Government of India Act, 1919

• Preamble: The Montagu Declaration (1917) emphasizing autonomy government for India
was incorporated as the Act’s preamble.
• Dyarchy in Provinces: Provincial subjects were divided into categories of transferred
(under elected ministers) and reserved (under Governors).
• Bicameralism: Introduced at the central level with a Legislative Assembly (145 members)
and a Council of State (60 members).
• Direct Elections: Introduced for legislative bodies, but suffrage was highly restricted
based on property, education, and taxes.
• Separate Electorates: Extended to Sikhs, Anglo-Indians, Christians, and Europeans,
perpetuating communal divisions.
• Public Service Commission: Established to improve the recruitment process for civil
services.
• Provincial Budget Separation: Provincial budgets were separated from the central
budget.
• Indian Ministers: Three Indians were required in the Viceroy’s Executive Council,
increasing Indian participation.

Constitutional and Parliamentary Historical background the Nation (Pre-1947) The

Muslims of India had, since the middle of the nineteenth century, begun the struggle for
a separate homeland on the basis of the two Nation theory. The British rulers realized
that the Hindus and Muslims of India remained two separate and distinct nations and
socio-cultural entities. The British rulers were left with no option but to eventually accept
the demand of the Muslims of India.

The End of British Raj and the Creation of Pakistan (1947-1948):

On 3rd June 1947, Lord Mountbatten, the last Viceroy of India, called the conference of
all the leaders of the sub-continent and communicated to them his government’s plan for
the transfer of power. At that time, a notification was issued in the Gazette of India,
published on 26th July 1947 in which the first Constituent Assembly of Pakistan was given
shape with 69 Members (later on the membership was increased to 79), including one
female Member. The State of Pakistan was created under the Independence Act of 1947.
The Act made the existing Constituent Assemblies, the dominion legislatures. These
Assemblies were allowed to exercise all the powers which were formerly exercised by the
Central Legislature, in addition to the powers regarding the framing of a new Constitution,
prior to which all territories were to be governed in accordance with the Government of
India Act, 1935.

Governor-General as Head of State

• The Governor-General represented the British Crown.

 • He had extensive powers, including appointing ministers, summoning or dissolving the
legislature and administrative issues.
• Muhammad Ali Jinnah was the first Governor-General of Pakistan.
• First Prime minister was Liaquat Ali Khan to establish and lead his administration.

3. Federal Structure/Provincial

• Pakistan was to be a federation consisting of the Provinces of West Pakistan (Punjab,

Sindh, NWFP, Balochistan) and East Bengal.
• The central government held greater powers than the provinces.

4. Parliamentary System

• The system was supposed to be parliamentary, with a Prime Minister and cabinet
responsible to the legislature.
• In practice, the Governor-General had dominant authority.

5. Constituent Assembly

• The Constituent Assembly of Pakistan was created to frame a new constitution.

• It also functioned as the legislature until 1956.
• The Objectives Resolution (1949) later guided constitutional principles.

6. Judiciary

• The Federal Court of Pakistan was established.

• It acted as the highest court of appeal and guardian of the constitution (under the adapted
1935 Act).

Constitutional Powers and Jurisdiction Federal Court of Pakistan

The Federal Court's powers and jurisdiction were initially defined by the
adapted Government of India Act, 1935, and later by the 1948 Order, with a range of
functions:

• Apex Court: It served as the highest appellate court in the country at the time.

• Original Jurisdiction: It had original jurisdiction to settle disputes between the

Federal government and provincial governments, or among provinces
themselves, typically issuing declaratory judgments in such cases.

• Appellate Jurisdiction: It heard appeals from the High Courts in civil and criminal
cases.
 • Advisory Jurisdiction: The President could seek its opinion on questions of law
deemed to be of public importance.

The Federal Court was eventually succeeded by the Supreme Court of Pakistan, which
was formally established with a modern structure under the first proper Constitution of
Pakistan, promulgated on March 23, 1956.

7. Civil Service, Administration and Islamic Provision

• The existing Indian Civil Service and administrative structure were retained, now known
as the Civil Service of Pakistan.
• This helped maintain continuity in governance.
• . No Clear Declaration of Islamic Character

• The 1947 framework did not yet declare Pakistan an Islamic state.
• However, the Objectives Resolution of 1949 later laid the foundation for an Islamic
democratic state.

9. Rights and Citizenship

• Fundamental rights were not clearly defined in 1947.

• Citizenship laws were still developing, especially concerning refugees after Partition.

The interim constitutional framework

The Indian Independence Act of 1947 declared that, until their respective constituent
assemblies could draft permanent constitutions, the two new dominions would be governed
under the Government of India Act of 1935. This act was heavily amended to function as a
temporary constitution for each country.

Key aspects of this interim framework included:

• Continuation of the Government of India Act of 1935: The provisions of this act were
adopted and remained in force, with necessary adaptations for the new, independent
dominions.

• Central and provincial authority: The 1935 Act had established a division of legislative
powers between the center and the provinces. This federal structure was retained,
 though the federal portion of the 1935 Act, originally intended to include the princely
states, was modified.

• Constitutional Governor-General: The Indian Independence Act stipulated that the

Governor-General of each dominion would act as a constitutional head of state,
representing the British Crown and acting on the advice of the new cabinet ministers.

• Constituent Assemblies as legislatures: Each dominion's Constituent Assembly was

empowered to act as both a constitution-making body and the central legislature. This
dual role continued until the new constitutions were finalized.

Key features of the independence constitution

The primary features of the independence constitution, as laid out by the Indian Independence
Act of 1947 and the adapted Government of India Act of 1935, included:

• Partition of British India: The Act officially partitioned the subcontinent into two
sovereign and independent dominions, India and Pakistan, effective August14-15, 1947.

• Creation of two Constituent Assemblies: Separate Constituent Assemblies were

established for India and Pakistan with full authority to frame their own constitutions. The
assemblies also served as the sovereign legislative bodies for their respective dominions.

• Sovereignty and Dominion Status: The Act granted complete legislative authority to the
new dominions. Both remained dominions under the British Commonwealth until they
adopted their own constitutions and became republics.

• Termination of British suzerainty: British suzerainty over the more than 560 princely
states lapsed. The states were given the right to either accede to India or Pakistan or to
remain independent.

• Partition of Bengal and Punjab: The act provided for the division of these two provinces
based on religious majority areas, with a boundary commission appointed to demarcate
the new borders.

• End of Crown's power: The Act ended the British Parliament's authority to legislate for
the new dominions and abolished the office of the Secretary of State for India. The British
monarch also dropped the title "Emperor of India".

• Division of assets: The Act provided for the division of assets and military forces
between the two new countries.
Constitutional and political development October 1958
In October 1958, President Iskander Mirza abrogated the 1956 Constitution and declared Martial
Law, appointing General Ayub Khan as Chief Martial Law Administrator. There was no interim
constitution introduced at this time; instead, the country was ruled by Martial Law until a new
constitution was drafted and promulgated in 1962. The key feature of this period was the
transition from a parliamentary system to military rule, ending with Ayub Khan becoming
President and establishing a presidential form of government.
Muhammad Ali Jannah as Governor General: A basic review
As Governor-General, Muhammad Ali Jinnah's role was pivotal in establishing Pakistan's
government and, in the context of a parliamentary system, he retained significant executive
power as head of state, while the Prime Minister and Cabinet held executive power for the daily
running of the government. Jinnah's key functions included setting up the first cabinet with
Liaquat Ali Khan as Prime Minister, making Karachi the capital, and establishing administrative
and military headquarters. He also worked to secure Pakistan's international standing and
address critical early issues like refugee rehabilitation and the economy.

Role and Power Division

• Governor-General (Head of State):

As the first Governor-General, Jinnah held significant executive authority as the head of state. He
was responsible for granting royal assent to all laws, and had the power to summon, prorogue,
and dissolve the Federal Legislature.

• Prime Minister and Cabinet (Head of Government):

The Prime Minister and the Cabinet held executive power for the day-to-day governance of
the state. Jinnah's immediate action was to establish the first cabinet with Liaquat Ali Khan
as Prime Minister, allowing the government to run its affairs.

• Constitutional Framework:
Since Pakistan did not yet have a constitution, the Indian Independence Act of 1935 was adapted
and enforced to provide a legal and administrative framework. This framework defined the
relationship between the Governor-General and the government's executive and legislative
bodies.
Key Contributions as Governor-General

• State Building:
 Jinnah was instrumental in placing the groundwork for the new nation by establishing
the first cabinet, designating Karachi as the capital, and setting up administrative and
military headquarters for the army, navy, and air force.

• International Relations:

He focused on securing Pakistan's place on the world stage, successfully ensuring the
country gained membership in the United Nations.

• Policy and Governance:

Jinnah also focused on addressing crucial domestic issues, including the economic and
social challenges posed by the influx of refugees and establishing national policies for
the new state.

• Minority Rights:
In his public addresses, he called for minority rights and advocated for an inclusive society
where all citizens were considered equal, regardless of religion, caste, or creed.
Report of the Basic Principles Committee 1952

The Basic Principles Committee was established on 12th March 1949 by Khawaja Nazimuddin on
the instruction of Prime Minister Liaquat Ali Khan. This committee had 24 members and was
headed by Khawaja Nazimuddin and Liaquat Khan was its vice president. This committee
presented its first report in 1950 but was severely criticized, particularly in East Pakistan so it
referred back to the Constituent Assembly. The basic principal report presented in Constituent
Assembly in 1952: The prominent features of the report were:

1. The Objective Resolution was adopted as a preamble to the proposed constitution and its
principles were to guide the state. Another important clause was that which laid down
procedure to prevent any legislation to be made against the Quran and Sunnah.
2. The Head of the State should be a Muslim and elected by the both Houses of the federal
legislature for a term of 5 years.
3. Seats were also allocated for communities in the lower house.
4. Word unit was specified for all provinces, capital, and federations. The head of these
units was to be selected for a term of 5 years.
5. The formula gave weightage to the smaller units of West Pakistan. Federal legislature
comprised of two Houses; House of Units consisted of 120 members. The East Bengal
legislature was to elect 60 members according to the principle of proportional
representation and the rest of the members were to be elected from the west by the
same rule. The House of People had real authority and comprised of 400 members, 200
from West and 200 from East Pakistan.
6. Chief Minister of each unit and minister were appointed by the Head of that unit and
ministers for each unit would be chosen by the Chief Minister.
 7. When the federal legislature was not in session, the Head of the State could promulgate
ordinances. The Head of the State could dissolve the House of People on the advice or
counsel of the minister.
8. Chief justice of the Supreme Court would be appointed by the Head of the State and other
6 judges would also be appointed by the Head of the State by the recommendations of
the Chief Justice.
9. Guarantees were also given to the civil servants of the federation and units against the
dismissal, and reduction in the rank without an opportunity to showcases.

[Link] Ali Bogra Formula (1953)

When Mr. Muhammad Ali Bogra became the Prime Minister of Pakistan, the main task ahead of
him was to achieve an agreement on a workable constitution for the country. He worked hard on
this project and within six months of assuming power, came out with a constitutional formula.
He presented the formula to the Constituent Assembly on 7th October 1953 and it is known as
the Bogra formula. The major features of the formula were:

1. The federal legislature would comprise of two houses – the House of Unit and the House
of People. The total strength of the House of Units would be 50, which was to be equally
divided among five units namely, East Bengal, Punjab, NWFP, Frontier States, Sindh and
Khairpur, Balochistan. The House of Units would be elected indirectly by the legislature
of the units. The Bogra formula reduced the 9 units of West Pakistan into 4 units.
2. The House of People was to have a total number of three hundred members, to be divided
among the five units in this manner – East Bengal 165 members, Punjab 75, NWFP 13,
Sindh 19, State of Khairpur 1, Balochistan 3, and Bahawalpur State 7.
3. Both Houses were to have equal powers in all matters. There was a provision for a joint
session of the two for the election of the Head of the State and the disposal of votes of
confidence.
4. In case of a difference of opinion between the two Houses, a joint session of the two
Houses would be called and the matter would be decided by a majority vote, provided
that the majority included thirty percent of the members from each zone.
5. It maintained the principle of parity between East and West Pakistan in combined
Houses, with 175 seats for each zone. So in total, both the wings were to have 175 seats
each in the two Houses of the Legislative Assembly.
6. In place of the Board of Ulama, the Supreme Court was given the power to decide if a law
was in accordance with the basic teachings of the Holy Quran and Sunnah.
7. The two houses of the Legislative Assembly formed the Electoral College for the
Presidential elections and the President was to be elected for a term of 5 years.

The report of the Basic Principles Committee, the Bogra Formula was appreciated by different
sections of the society. There was great enthusiasm amongst the masses as they considered it to
be a plan that could bridge the gulf between the two wings of Pakistan and would act as a source
of unity for the country. The proposal was discussed in the Constituent Assembly for 13 days, and
a committee was set to draft the constitution on 14th November 1953. However, before the
constitution could be finalized, the Assembly was dissolved by Ghulam Muhammad, the then
Governor-General of Pakistan.

The Doctrine of Necessity: The doctrine of necessity is the basis on which extraordinary actions
by administrative authority, which are designed to restore order or uphold fundamental
constitutional principles, are considered to be lawful even if such an action contravenes
established constitution, laws, norms, or conventions. On 24 October 1954 the Governor-General
of Pakistan, Ghulam Mohammad, dissolved the Constituent Assembly and appointed a new
Council of Ministers on the grounds that the existing one no longer represented the people of
Pakistan. Stanley de Smith argues that the real reason for the dissolution was because
Mohammad objected to the constitution which the Assembly was about to adopt. The President
of the Constituent Assembly, Maulvi Tamizuddin, appealed to the Chief Court of Sindh at Karachi
to restrain the new Council of Ministers from implementing the dissolution and to determine the
validity of the appointment of the new Council under Section 223-A of the constitution.

Over-review of constitution 1956

The Constitution of Pakistan 1956 established a parliamentary system with a unicameral
legislature and introduced the official name "Islamic Republic of Pakistan," incorporating
the Objective Resolution as a preamble. It created a power division between the ceremonial
President and the Prime Minister-led cabinet, while the legislature, the National Assembly, was
based on the principle of parity between East and West Pakistan. Although the 1956 Constitution
was abrogated by the 1958 Martial Law, an interim Constitution was issued in 1972 before the
1973 Constitution was enacted.

Over-review of the 1956 Constitution

• Length and structure: A lengthy written document with 234 articles and 6 schedules.

• Official name: Officially declared Pakistan as the "Islamic Republic of Pakistan".

• Government: Established a parliamentary form of government with a Prime Minister as

the head of government and a ceremonial President as the head of state.

• Preamble: Incorporated the Objective Resolution as a preamble, aiming to base the

country on Islamic principles of social justice.

• Fundamental Rights: Included democratic rights and freedoms such as freedom of

speech, assembly, and movement.

• National Languages: Urdu, English, and Bengali were declared national languages.

Highlights of power division and legislatures

 • Legislature: Provided for a unicameral (single-house) parliament known as the National
Assembly.

• Representation: The National Assembly had 300 members, with 150 from East Pakistan
and 150 from West Pakistan, upholding the principle of parity.

• Executive Power: The Prime Minister was the head of the executive, leading a cabinet
that was collectively responsible to the legislature.

• Presidential Power: The President was the head of state, a ceremonial position, but
held powers to declare a state of emergency.

• Power Balance: The constitution aimed to balance powers between the central
government and the provinces through a federal system and legislative lists.

The interim Constitution and adaptation

• 1972 interim constitution: The civilian government, which came to power after the
1970 elections, provided the nation with an interim Constitution in 1972.

• Adaptation: The 1972 interim constitution was a temporary measure to facilitate the
creation of a new, more permanent constitution.

• Subsequent constitution: The 1972 Assembly later framed the 1973 Constitution, which
was passed and promulgated in April and August 1973, respectively.

Objective Resolution
• Foundation of the state: The Objective Resolution, passed in 1949, served as a guide
and foundation for the 1956 Constitution.

• Key principles: It laid down the guiding principles for the new state, emphasizing Islamic
principles, social justice, and the protection of minorities and backward classes.

• Role of judiciary and minorities: It included provisions for securing the independence of
the judiciary and safeguarding the rights of minorities and backward classes.

Summarized Brief Background of Constitutional History: By the end of World War II, the British
imperial government granted independence to its Indian colony and for that matter the British
Parliament enacted the Indian Independence Act, 1947. Under the Act, the British Crown
relinquished its sovereign powers over India and transferred those powers to the newly
established dominions of India and Pakistan on 14 August 1947. The Government of India Act,
1935, previously the constitution of British India, was amended to bring it in consonance with the
aims and objectives of independence as laid down in the 1947 Act.
The combination of these two constitutional instruments served as an interim constitutional
order for both countries until their respective constituent assemblies adopted their own
constitutions. Following Pakistan independence, it took three Governor Generals, four Prime
Ministers, two constituent assemblies (1947-1954 & 1955-1956), and nine years of protracted
constitution making process to produce the first constitution of Pakistan in 1956. It was rejected
on the final day of its adoption (29 February 1956) by all Hindu minority parties and the largest
Muslim political party (the Awami League) from East Pakistan – demographically the largest
province. Due to lack of consensus among ethnonational groups, the 1956 constitution failed to
arrest the political instability that engulfed the entire country following its promulgation,
ultimately leading to its abrogation and imposition of the first martial law in the country on 7
October 1958. Between its promulgation and abrogation, four federal ministries changed. The
military General Ayub Khan, who had taken over the reins of power, enacted the 1962
constitution to the country through an executive order.

The current constitution, enacted by the third constituent assembly in 1973, was twice
suspended by military General Zia-ul-Haq (1977-1985) and General Musharraf (1999-2002), and
at the time of its ‘restoration’, both in 1985 and 2002, the military regimes amended it in ways
that fundamentally changed its Islamic and federal character. One such amendment on each
occasion was the grant of power to the president to dissolve the lower house of the federal
legislature. With this power in the hands of presidents – which office was usurped by both
dictators at the time of restoring the constitution – the ensuing parliaments on both occasions
were forced to give constitutional cover via the 8 th and 17th Amendments to the acts of
suspensions of the constitution, and all other acts of the military dictators during the period
between the suspension and restoration of the constitution.