Constitution of Pakistan
State emblem of Pakistan.svg
Created19 April 1973
Ratified14 August 1973
LocationIslamabad
Author(s)12th Parliament
Signatories12th Parliament
(unanimous)
PurposeTo replace the Constitution of Pakistan of 1962 and LFO Order No. 1970

The Constitution of the Islamic Republic of Pakistan (Urdu: آئین پاکستان), also known as the 1973 Constitution is the supreme law of Pakistan.[1] Drafted by the government of Zulfiqar Ali Bhutto, with additional assistance from the country's opposition parties, it was approved by the Parliament on 10 April and ratified on 14 August 1973.[2]

The Constitution is intended to guide Pakistan's law and its political culture, and system. It identifies the state (its physical existence and its borders), people and their fundamental rights, state's constitutional law and orders, and also the constitutional structure and establishment of the institutions and the country's armed forces.[3] The first three chapters establish the rules, mandate, and separate powers of the three branches of the government: a bicameral legislature; an executive branch governed by the Prime Minister as chief executive; and an apex federal judiciary headed by Supreme Court.[3] The Constitution designates the President of Pakistan as a ceremonial Head of State who is to represent the unity of the state.[4] The first six articles of the constitution outline the political system as federal parliamentary republic system; as well as Islam as its state religion.[5] The Constitution also encapsulates provisions stipulating the legal system's compliance with Islamic injunctions contained in the Quran and Sunnah.[6]

The Parliament cannot make any laws which may be repugnant or contrary to the Constitution, however the Constitution itself may be amended by a two-thirds majority in both the houses of the bicameral Parliament, unlike the previous legal documents of 1956 and 1962.[7] It has been amended over time, and most recent impulses for political upgrades and reforms has been amended. Although enforced in 1973, Pakistan, however, celebrates the adoption of the constitution on 23 March—when the first set was promulgated in 1956—each and every year as Republic Day.[8]

Origins and historical background

In a radio talk addressed to the people of Pakistan broadcast in February 1948, Jinnah expressed his views regarding Pakistan's constitution to be in the following way:

The Constitution of Pakistan is yet to be framed by the Pakistan Constituent Assembly, I do not know what the ultimate shape of the constitution is going to be, but I am sure that it will be of a democratic type, embodying the essential principles of Islam. Today these are as applicable in actual life as these were 1300 years ago. Islam and its idealism have taught us democracy. It has taught equality of man, justice and fair play to everybody. We are the inheritors of these glorious traditions and are fully alive to our responsibilities and obligations as framers of the future constitution of Pakistan.

[9]

Pakistan was founded in 1947 as a Dominion (an independent realm or kingdom) within the British Commonwealth. The same was true in independent India. During its first few years of existence the British monarch was also Pakistan's head of state, as is still the case in Canada, Australia etc. Before writing a constitution, a Constituent Assembly passed the Objectives Resolution, on the insistence of the ulama and Jamaat-e-Islami, in March 1949 to define the basic directive principles of the new state and to declare state recognition of the sovereignty of Allah over the universe. The Objectives Resolution affirmed the role of democracy and contained religious provisions to enable society to adhere to the teachings of the Quran and Sunnah. The Objectives Resolution has henceforth been inserted as a preamble into each of Pakistan's subsequent constitutions.[10]

The country became a republic when its first constitution was approved in 1956 but this was abrogated in 1958 after a military Coup d'état.[11] Pakistan's second constitution was approved in 1962. It granted executive power to the president and abolished the office of the prime minister. It also institutionalised the intervention of military in politics by providing that for twenty years, the president or the defence minister must be a person who had held a rank not lower than that of lieutenant-general in the army.[12] The 1962 constitution was suspended in 1969 and abrogated in 1972.[11]

The 1973 constitution was the first in Pakistan to be framed by elected representatives. Unlike the 1962 constitution it gave Pakistan a parliamentary democracy with executive power concentrated in the office of the prime minister, and the formal head of state—the president—limited to acting on the advice of the prime minister.[12]

The Constitution states that all laws are to conform with the injunctions of Islam as laid down in the Quran and Sunnah.[6] The 1973 Constitution also created certain institutions such as the Shariat Court and the Council of Islamic Ideology to channel the interpretation and application of Islam.[13]

After another coup d'état in 1977, the constitution was held in abeyance until it was "restored" in 1985 but with an amendment (the Eighth) shifting power from the parliament and Prime Minister to the president. Another Amendment (Seventeenth) in 2004 continued this shift, but in 2010, the Eighteenth amendment reduced presidential powers, returning the government to a parliamentary republic.[citation needed]

Previous legislation as Source

The successful movement led the establishment of Pakistan, independent from British India in 1947. The British Empire divided British India into two, India and Pakistan.[citation needed]

The provisions of the Government of India Act, 1935, had greatly influenced the state and served as its basic legal document until 1956. In 1950, Prime Minister Liaquat Ali Khan authored the first annexe that would pave a path to the drafting of the Constitution. Elected in 1947, the first Constituent Assembly drafted and adopted its first constitution in 1956.[citation needed]

1956 Constitution

Following the adoption of a constitution in India in 1950, Pakistan's lawmakers were incentified to work on their constitution. Prime Minister Muhammad Ali and his government officials worked with the opposition parties in the country to formulate a constitution for Pakistan.[14]

Finally, the joint work led to the promulgation of the first set of the constitution on 23 March 1956—a day when Pakistan celebrates its Republic Day over the adoption of the constitution. The constitution provided for parliamentary form of government with a unicameral legislature.[14] It officially adopted Pakistan as "Islamic Republic" and the principle of parity was introduced. Its features were:

By the constitution, Iskander Mirza assumed the presidency but his constant involvement in national affairs, as opposed to Constitution, dismissed four elected prime ministers in two years. Under public pressure, Mirza upheld the coup d'état in 1958, thus virtually suspending the constitution. Shortly afterwards General Ayub Khan deposed Mirza and declared himself president.[15]

1962 Constitution

General Ayub Khan appointed a Constitution Commission to draft another part of the constitution under Chief Justice Muhammad Shahabuddin.[16] Submitted its considerations on 6 May 1961, Ayub Khan altered the entire version of the constitution which was entirely different from the one recommended by Chief Justice Muhammad Shahabuddin.[16] It was promulgated on 8 June 1962. Main feature of this set was the introduction of the Presidential system and more consolidated powers to the President. No further changes were carried out to oppose the 1956 document.[16] Its features includes:

Constitutional convention

After Bangladesh was formed in 1971, the PPP formed the government and partially enacted the 1962 constitution.[19] President Zulfikar Ali Bhutto called for a constitutional convention and invited the leaders of the all political parties to meet him on 17 April 1972.[19] Leaders and constitutional experts of the Islamic political parties, conservative parties, socialists and communist parties were delegated to attend the constitutional convention in 1972.[20]

Drafting and ratification

Enlightenment and Rule of law

The law experts, constitutional analysts, and country's reputed clergymen worked on formulating a constitution that they hoped would represent the will and desire of people.[21] Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the "sole and express purpose of revising the 1956 articles."[21] Also, the convention was not limited to the religion, exigencies of government and the preservation of the State; rather it was intended to maintain delicacy in commerce, finances, issue of loans to federation, and Separation of powers.[21] Several key ideas of the philosophy of John Locke and Islamic provisions on civil rights were interchanged in the Constitution.[22][23]

The Constitution ultimately established a bicameral Parliament, with the National Assembly as the lower house and the Senate as the upper house.[21] It also established the parliamentary form of government with Prime Minister as its head of government; the elected National Assembly genuinely representing the will of the people.[21] The Constitution truly maintained a delicate balance between traditionalists and modernists and reflected heavy compromises on fundamental religious rights in the country.[21] The fundamental rights, freedoms of speech, religion, press, movement, association, thought, and intellectual, life, liberty and property and right to bear arms were introduced in the new Constitution.[20] Islam was declared as the State religion of Pakistan.[20] Geography and border statue of the country was redefined and "Pakistan was to be a Federation of Four Provinces."[20] The Constitution was written in the point of representing the conservative Islam as well as reflecting a heavy compromise over the religious rights and humanism ideas, advocated by the extremist leftists of the PPP.[21]

On 20 October 1972, the draft was revived by all leaders of the political parties and signed the declaration of adopting the Constitution in the National Assembly on 2 February 1973.[24] Ratified unanimously on 19 April 1973, the Constitution came into full effect on 14 August 1973.[24] On the same day, the successful vote of confidence movement in the Parliament endorsed Zulfikar Bhutto as the elected Prime Minister after latter relinquishing the presidency after appointing Fazal-i-Ilahi to that office.[24]

Structure

Fundamental rights

Contrary to 1956 and 1962 articles, several ideas in the Constitution were new, and guaranteed security to each citizen of Pakistan. First part of the Constitution introduced the definition of State, the idea of life, liberty and property, individual equality, prohibition of slavery, preservation of languages, right to fair trial, and provided safeguard as to arrest and detention as well as providing safeguards against discrimination in services.[25][26]

The due process clause of the Constitution was partly based on the British Common law, as many founding fathers and legal experts of the country had followed the British legal tradition.[27] The fundamental rights are supreme in the Constitution and any law that is ultra vires the fundamental rights can be struck down by the apex courts in their constitutional jurisdiction vested on them under Article 199 of the Constitution.[28]

Provisions

In contrast to the constitutions of India and Bangladesh, the Constitution reflected a heavy compromise over several issues to maintain a delicate balance of power among the country's institutions. The Constitution defined the role of Islam;[29] Pakistan was to be a Federation of Four Provinces and shall be known as the Islamic Republic of Pakistan;[30] introduction of check and balances, separation of powers, and provided the federal system under which the government should governed.

The Constitution established a "Bicameral Parliament" as a legislative authority that consists of the Senate as Upper house (providing equal provincial representation), and National Assembly as Lower house (providing the will and representation of people).[31][32] The Constitution put stipulation on the eligibility of becoming President and Prime Minister that only "Muslim" of not less than forty-five years of age[33] and is qualified for becoming the Prime Minister.[34] No law repugnant to Islam shall be enacted and the present laws shall also be Islamised.[35] The Constitution also introduced a new institution known as the "Council of Common Interests" consisting of Chief Minister of each four provinces and an equal number of Cabinet ministers of the Government nominated by the Prime Minister.[36] The Council could formulate and regulate the policy in the Part II of the Legislative List. In case of complaint of interference in water supply by any province the Council would look into the complaint.[citation needed]

Another major innovative introduction in the Constitution is the establishment of the National Finance Commission (NFC) consisting of the Provincial and Finance Ministers and other members to advice on distribution of revenues between the federation and the provinces.[37] The Constitution's first parts introduce the Islamic way of life, promotion of local government, full participation of women in national life, protection of minorities, promotion of social and economic well being of the people, and strengthening the bonds with the Muslim world and to work for international peace.[citation needed]

The Islamic laws and Sharia

Under the Constitution, the Fundamental Rights include security of person, safeguards as to arrest and detention, prohibition of slavery and forced labour, freedom of movement, freedom of association, freedom of speech, freedom to profess religion and safeguards to religious institutions, non-discrimination in respect of access to public places and in service, preservation of languages, script and culture. The judiciary enjoys full supremacy over the other organs of the state. About national languages, Urdu was declared as national languages, and English as official language; all other languages were preserved by the Constitution.[38]

Islamic introduction

Many key ideas on regarding the role of Islam in the State that were mentioned in 1956 Articles were made part of the Constitution:

  • The official name "Islamic Republic of Pakistan" as selected for the state of Pakistan.
  • Islam is declared as the state religion of Pakistan.
  • Enabling of living life, culture, and customs of Muslims, individually or collectively, in accordance with the fundamental principles and basic concepts of Islam.
  • Teachings on Arabic, Quran, and Islamiyat to be compulsory in country's institutions and to secure correct and exact printing and publishing of the Quran.
  • Proper organisations of Zakat, Waqf, and mosques is ensured.
  • Prevent prostitution, gambling and consumption of alcohol, printing, publication, circulation, pornography, and display of obscene literature and advertisements.
  • Required to be a Muslim to run for bid of becoming the President (male or female) and/or Prime Minister (male or female). No restriction as to religion or gender on any other post, up to and including provincial governor and Chief Minister.
  • All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Quran and Sunnah and no law shall be enacted which is repugnant to such injunctions.[39]
  • A Council of Islamic Ideology shall be constituted referred to as the Islamic advisory council.[40]
  • The Constitution of Pakistan defined a Muslim as a person who believes in the unity and oneness of Allah, in the absolute and unqualified finality of the Prophethood of the Islamic prophet, Muhammad, and does not believe in, or recognise as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad.
  • In keeping with this definition, the Second Amendment to the Constitution (1974) declared for the first time the Ahmadiyya Community and/or the Lahori Group as non-Muslims, since their leader, Mirza Ghulam Ahmad, claimed to be prophet of God.
  • However, the Fourth Amendment (1975) set aside six seats in the National Assembly for non-Muslim representatives to protect minority rights.
  • The state shall endeavour to strengthen the bonds of unity among Muslim countries.
  • Islamic revisions were introduced into the Pakistan Penal Code.

Parts

The individual Articles of the Constitution are grouped together into the following Parts:

  • Preamble
  • Part I[41] – Introductory [Articles 1–6]
  • Part II[42] – Fundamental Rights and Principles of Policy [Articles 7–40]
  • Part III[43] – The Federation of Pakistan [Articles 41–100]
  • Part IV[44] – Provinces [Articles 101-140A]
  • Part V[45] – Relations between Federation and Provinces [Articles 141–159]
  • Part VI[46] – Finance, Property, Contracts and Suits [Articles 160–174]
  • Part VII[47] – The Judicature [Articles 175–212]
  • Part VIII[48] – Elections [Articles 213–226]
  • Part IX[49] – Islamic Provisions [Articles 227–231]
  • Part X[50] – Emergency Provisions [Articles 232–237]
  • Part XI[51] – Amendment of Constitution [Articles 238–239]
  • Part XII[52] – Miscellaneous [Articles 240–280]

Annex