This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of the Constitution of Pakistan. 

This article has been published by Shoronya Banerjee.

Introduction 

On April 10, 1973, the National Assembly overwhelmingly enacted Pakistan’s third Constitution, which is the present Constitution of Pakistan. The fact that all of the main political parties agreed on the text and signed it before it was presented to the National Assembly made it exceptional. Pakistan’s Constitution guarantees the country’s parliamentary democracy. Fundamental rights, provincial autonomy, and local governance are all guaranteed along with it. It also promotes a sense of equality among the federating units by providing all provinces equal representation in the upper chamber.  The official name of the nation, according to the Constitution, is the “Islamic Republic of Pakistan.” The Preamble of the Constitution expresses unequivocally that Almighty Allah alone has dominion over the whole universe, and that the authority to be exercised by the people of Pakistan within the limitations established by Him is a sacred trust. The people of Pakistan have expressed their desire to construct an order in which the state exercises its powers and authority through people-selected representatives. The present article discusses the Constitution of Pakistan in detail. 

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History behind the Constitution of Pakistan

The British imperial authority granted independence to its Indian colony at the conclusion of World War II, and the British Parliament adopted the Indian Independence Act, of 1947 to that aim. On 14 August 1947, the British Crown ceded its sovereign rights over India via the Act, and those powers were passed to the newly constituted dominions of India and Pakistan. The Government of India Act, 1935, which had previously served as British India’s Constitution, was revised to align it with the goals and objectives of independence set forth in the 1947 Act. Until the newly constituted dominions’ constituent legislatures produced their own Constitutions, the combination of these two constitutional documents operated as an interim constitutional order for both countries. 

The first Constitution of Pakistan was drafted in 1956 after three Governor Generals, four Prime Ministers, two constituent legislatures (1947-1954 & 1955-1956), and nine years of lengthy Constitution-making. All Hindu minority parties and the major Muslim political party (the Awami League) from East Pakistan, the country’s most populous region, voted against it on the last day of its adoption (February 29, 1956). The 1956 Constitution failed to prevent the political instability that swept the whole country after its promulgation, eventually resulting in its abrogation and the imposition of the country’s first martial law on October 7, 1958, due to a lack of consensus among ethno-national factions.

The current Constitution, enacted by the third constituent assembly in 1973, was suspended twice by military coups led by General Zia-ul-Haq (1977-1985) and General Musharraf (1999-2002), and when it was restored’ in 1985 and 2002, the military regimes changed it fundamentally, changing its Islamic and federal character. The giving of power to the President to dissolve the lower chamber of the federal legislature was one such modification on both occasions. The Islamic character of the State and federalism were the two vexing questions that prevented ethno-national groups from reaching consensus on the constitutional design of the instruments that have governed the polity in the three constituent assemblies of Pakistan (1947-1954, 1955-1956, 1972-1973), producing the 1956 and 1973 Constitutions (current).

Shaping of Pakistan’s Constitution

Two opposing views of identity, expressed by two contending forces, have shaped and continue to shape Pakistani federal discourse. Despite the multiethnic and severely divided nature of the society, the centripetal forces, representing the state elites, have sought to create a homogenous society and a monolithic national identity by deploying Islam as a uniting factor in the service of constructing a centralized Muslim Nation-State. On the other hand, centrifugal forces representing various ethnic, linguistic, cultural, and regional groups have been pushing back against the officially sponsored nation and state-building project, making counter-demands for constitutional recognition of the polity’s multiethnic nature and accommodation in a multinational framework within a decentralized federal order. Divergent perspectives have impacted not just the federal debate, but also the creation of all constitutional instruments.

Members of the Constituent Assembly, which produced the present Constitution from 1972 to 1973, were elected in 1970 while the country was still unified. The independence of East Pakistan (now Bangladesh) in 1971 drastically changed the country’s political landscape. Despite this, no new elections were held, and the Constituent Assembly for Pakistan was established by MPs elected from West Pakistan in the 1970 elections. 

North-West Frontier Province (NWFP), now Khyber Pakhtunkhwa and Balochistan, two of Pakistan’s four provinces at the time, did not endorse the 1973 Constitution. The secession of East Pakistan altered the demographic makeup of the country, as Punjab became the biggest province, with Punjabis accounting for more than 60% of the population, outnumbering all other significant ethno-national groups from the remaining three provinces combined. The Pakistan People’s Party (PPP) won a majority of seats in the assembly from the two largest provinces of Punjab and Sindh, resulting in the formation of a federal government and provincial administrations in both. The National Awami Party (NAP) secured a majority of seats in the Constituent Parliament and formed the opposition in the NWFP and Balochistan provinces. Only one of the opposition’s 400 amendments was adopted during their time in the legislature. In the absence of opposition members, the remaining two-thirds of the draft Constitution was accepted, resulting in the lapse of sixteen hundred changes proposed by opposition members in those areas of the draft Constitution. On the penultimate day of the Constitution’s ratification, the opposition appeared in the Assembly, and the majority of its members signed the draft Constitution under threat of treason charges. The 1973 Constitution contains 280 Articles and 7 Schedules and establishes a centralized federal system.

The centralised federal system laid down by the Constitution

The centralised federal system as laid down by the Constitution of Pakistan includes the federal executive, federal legislature, and federal judiciary. 

Federal executive 

The president is the head of state and represents the republic’s unity. He or she is chosen by a simple majority of members of the federal legislature’s two chambers and the four provincial legislatures. The president can be impeached in a joint sitting of the federal houses if he or she is found unfit to hold office due to physical incapacity, or removed by votes of not less than two-thirds of the total membership. After each general election, members of the lower house of the federal legislature elect the prime minister, and the president appoints additional cabinet ministers on the prime minister’s suggestion.

The prime minister, or through him, the federal ministers, exercise the executive authority of the federal government in the name of the president. The president’s functions are aided and advised by the federal cabinet, which is led by the prime minister. Except in circumstances where the Constitution has entrusted the president with discretionary powers, the president must act on and in accordance with the recommendation of the cabinet or the prime minister in the discharge of her or his responsibilities. The prime minister is responsible for keeping the president up to date on all topics of domestic and international policy, as well as any legislative proposals that the federal cabinet intends to present to Parliament. 

The prime minister may not be removed unless the president is persuaded that he or she has lost the confidence of the lower house majority. The president must call a meeting of the lower house and demand that the prime minister receive a vote of confidence. When the lower house votes a vote of no-confidence against her or him, the prime minister may be dismissed on the lower chamber’s initiative. The federal cabinet is accountable to both chambers of Parliament as a whole. The president has the authority to call, prorogue, address, and transmit communications to either chamber of Congress, individually or collectively.

The president also has the power to dissolve the lower house of the federal legislature, either on the prime minister’s advice or on her or his own initiative, if the house passes a vote of no confidence against the prime minister and no other member commands the support of a majority of the house members. Within ten days, the president signs laws enacted by the federal legislature. He or she may send a bill back to the legislature with a request that it be reconsidered in its entirety or in part, as well as any amendments proposed by her or him, in which case the bill will be reconsidered by the joint sitting of the legislature, and if passed by a majority of votes, it will be sent to the president for assent. The president must next provide his or her consent to the bill within 10 days, otherwise, it will become law automatically.

Federal legislature 

Composition

The president, the lower house (National Assembly), and the upper house (Senate) make up the Parliament, the federal bicameral legislature. The National Assembly seats are divided based on population, with 342 seats distributed among the four provinces, FATA (Federally Administered Tribunal Areas), and the Federal Capital. Unless the president dissolves it sooner, the Assembly is elected for five years. The Senate has 104 seats, with 14 general seats, four women seats, four technocrat seats, and one non-Muslim minority seat in each province, giving each province equal representation. It has eight seats for the FATA, and four seats for the Federal Capital, including two general seats, one woman seat, and one technocrat seat. 

Election

Elections to fill Senate seats allotted to each province are held using the proportional representation system, with the provincial legislative assembly voting with a single transferable vote. The Senate is not subject to dissolution and has a six-year term. 

Functioning

With the exception of money bills, both chambers of the federal legislature have equal authority over all legislative matters under federal jurisdiction. A non-money bill can originate in either of the two chambers, and if there is a dispute between them, it must be considered in a joint sitting, and if passed by a majority of the members present and voting, it is forwarded to the president for assent. 

The National Assembly is the only place where a money bill may originate and be adopted. A money bill can be recommended by the Senate, which the National Assembly may or may not accept. As a result, approving a money bill is solely the responsibility of the National Assembly. The president’s consent is required for any bill to become law. When a bill is delivered, the president must either sign it or, if it is not a money bill, return it to a joint session of Parliament with a message to rethink the measure or any portion of it, within 10 days. Whether or not the president signs the bill, it becomes law if a simple majority of the joint session of Parliament accepts it after such review.

The federal legislative list, which includes 71 subjects, is established by the Constitution, while provincial legislatures have exclusive legislative rights over subjects not included in the federal legislative list. A provincial legislature may freely transfer the power to create laws to the federal legislature on issues over which it has jurisdiction. The federal and provincial governments’ executive powers extend to subjects over which the federal and provincial legislatures, respectively, have legislative responsibility.

Federal judiciary

The 1973 Constitution establishes a judicial hierarchy, with the Supreme Court of Pakistan at the top and five high courts below it, each functioning in one of Pakistan’s four provinces and the federal capital. The administrative control of lower courts in each province is exercised by their respective high courts. The Supreme Court and the high courts have original constitutional jurisdiction in some matters, in addition to being appellate courts in civil and criminal cases. The Supreme Court has original and exclusive authority to resolve any dispute between and among the federal and provincial governments since it is a federal court. However, the Supreme Court’s jurisdiction to resolve such issues is restricted to delivering “declaratory rulings exclusively.” The Constitution also establishes a Federal Shariat Court, which has universal authority to study and rule whether any legislation or provision of law is incompatible with Islamic injunctions.

12 Parts and 5 Schedules of the Constitution of Pakistan 

The Constitution of Pakistan has 12 Parts which have been discussed hereunder. 

Part I : Introductory (Articles 1-6)

Articles 1 to 6 of the Constitution of Pakistan provide an introduction to the Constitution as a whole. While Article 1 lays down the territorial extent of Pakistan as a nation, Article 2 specifies Islam as the religion of the State. Article 3 ensures elimination of exploitation and Article 4 lays down the enjoyment of protection of the law and to be treated in accordance with the law, as the inalienable right of every citizen of the State. Article 5 establishes loyalty as the basic duty of every citizen towards the State and Article 6 presents high treason as the offence that every citizen should be aware of. 

Part II : Fundamental Rights and Principles of Policy (Articles 7-40)

Part II of the Constitution of Pakistan is divided into two chapters, Fundamental Rights (Chapter 1) and Principles of Policy (Chapter 2). The list of Fundamental Rights that have been listed under Articles 8 to 28 of the Constitution of Pakistan has been provided hereunder: 

  1. Laws inconsistent with or in derogation of fundamental rights to be void (Article 8): 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 and the State shall not make such laws. 
  2. Security of person (Article 9): No person shall be deprived of life or liberty save in accordance with law.
  3. Safeguards as to arrest and detention (Article 10): 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.
  4. Right to a fair trial (Article 10 A): Every arrested individual has a right to fair trial.
  5. Slavery, forced labour, etc. prohibited (Article 11): Slavery is non-existent and forbidden and no law shall permit or facilitate its introduction into Pakistan in any form. 
  6. Protection against retrospective punishment (Article 12): Proportionality and retrospectivity needs to be taken care of while punishing an individual. 
  7. Protection against double punishment and self-incrimination (Article 13): Double punishment and self-incrimination must be mandatorily avoided. 
  8. Inviolability of dignity of man, etc (Article 14): The dignity of man and, subject to law, the privacy of home, shall be inviolable.
  9. Freedom of movement, etc (Article 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, reside and settle in any part throughout Pakistan. 
  10. Freedom of assembly (Article 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.
  11. Freedom of association (Article 17): Every person has the right to organise groups or unions, subject to any reasonable legal limits imposed in the interests of Pakistan’s sovereignty, integrity, public order, or morality.
  12. Freedom of trade, business or profession (Article 18): Every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.
  13. Freedom of speech, etc (Article 19): Every citizen has the right to freedom of expression and the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam, the integrity, security, or defence of Pakistan or any part of it, friendly relations with foreign states, public order, decency, or morality, or in relation to contempt of court, commission of, or incitement to an offence.
  14. Right to information (Article 19 A): Right to information is a fundamental right in the land of Pakistan which is subjected to reasonable restrictions as well. 
  15. Freedom to profess religion and to manage religious institutions (Article 20), Safeguard against taxation for purposes of any particular religion (Article 21) and Safeguards as to educational institutions in respect of religion, etc (Article 22): Every citizen has the right to profess, practice, and spread his religion, and every religious group and sect has the right to create, operate, and govern their own religious institutions.
  16. Provision as to property (Article 23): Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan subject to reasonable restrictions in the interest of the public. 
  17. Protection of property rights (Article 24): No person shall be compulsorily deprived of his property save in accordance with law.
  18. Equality of citizens (Article 25): All citizens are equal in the eyes of the law and have the right to equal protection under the law. There will be no discrimination based only on gender. Nothing in this Article prevents the state from adopting particular provisions for women’s and children’s protection.
  19. Right to education (Article 25 A): The State shall provide free and compulsory education to all children aged five to sixteen years in accordance with applicable laws.
  20. Non-discrimination in respect of access to public places (Article 26): There shall be no discrimination against any person on the basis of race, religion, caste, sex, domicile, or place of birth when it comes to access to places of public enjoyment or resort that are not solely for religious reasons.
  21. Safeguard against discrimination in services (Article 27): On the basis of race, religion, caste, sex, domicile, or place of birth, no citizen otherwise competent for employment in the Pakistani service will be discriminated against in any such appointment.
  22. Preservation of language, script, and culture (Article 28): Subject to Article 251, any group of citizens with a distinct language, script, or culture has the right to conserve and develop it, and to form organisations for that purpose, according to the law. 

Articles 29-40 of the Constitution deals with the Principles of Policy. It is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority. The Principles aim towards bringing social welfare in the State thereby promoting the socio-economic well-being of the people. 

Part III : Federation of Pakistan (Articles 41-100)

The Federation in Pakistan can be categorized into three parts, namely,

  1. Chapter 1: The President  [Articles 41-49] 

Article 41 guarantees that there shall be a President of Pakistan who shall be the Head of State and shall represent the unity of the Republic. Article 48 clarifies that the President shall be acting on the advice of the Cabinet or the Prime Minister. 

  1. Chapter 2: Majlis-e-Shoora (Parliament) [Articles 50-89]

The Majlis-e-Shoora is the Parliament of the State of Pakistan. Article 51 provides that there shall be three hundred and thirty-six seats for members in the National Assembly, including seats reserved for women and non-Muslims. Article 52 specifies that the term of a National Assembly should be five years. 

  1. Chapter 3: The Federal Government  [Articles 90-100]

The Federal Government of Pakistan comprises the Cabinet under Article 91, Federal Ministers and Ministers of State under Article 92, the Prime Minister and the Attorney-General for Pakistan under Article 100. 

Part IV : Provinces (Articles 101-140A)

Provinces under Pakistan’s Constitution comprises of the following:

  1. Chapter 1: The Governors  [Articles 101-105]

Article 101 (1) provides for the appointment of a Governor for each Province, who shall be appointed by the President on the advice of the Prime Minister. Article 105 lays down the function of a Governor thereby stating that subject to the Constitution, in the performance of his functions, the Governor shall act on and in accordance with the advice of the Cabinet, or the Chief Minister.

  1. Chapter 2: Provincial Assemblies  [Articles 106-128]

Articles 106-128 of the Constitution of Pakistan provide every detail associated with provincial assemblies. Article 106(2) lays down that a person is eligible to vote if:

  1. he is a Pakistani citizen,
  2. he is at least eighteen years old,
  3. his name appears on the electoral roll; and
  4. he has not been declared insane by a competent court.
  5. Chapter 3: The Provincial Governments [Articles 129-140A]

Article 129 provides that provincial governments would consist of a Governor, the Chief Minister, and Provincial Ministers, which shall act through the Chief Minister. 

Part V : Relation between Federation and Province (Articles 141-159)

The relation between the federation and the provinces can be understood in three parts, namely, 

  1. Chapter 1: Distribution of Legislative Powers [Articles 141-144]
  2. Chapter 2: Administrative Relations between the Federation and Provinces [Articles 145-152]
  3. Chapter 3: Special Provisions  [Articles 153-159]

Part VI : Finance, Property, Contracts and Suits (Articles 160-174)

Article 160 lays down the provision for constitution of the National Finance Commission by the President, consisting of the Minister of Finance of the Federal Government, the Ministers of Finance of the Provincial Governments, and such other persons as may be appointed by the President after consultation with the Governors of the Provinces. Distribution of net proceeds of taxes between Federation and Provinces, making of grants-in-aid by the Federal Government to the Provincial Governments, the exercise of borrowing powers, are some of the notable functions of the finance commission. 

Articles 166 to 171 deal with borrowing and audit. The appointment of an auditor-general will be carried out by the President as per Article 168. Functions and powers of the auditor-general have been provided under Articles 169 and 170 respectively. 

The power to acquire property and make contacts have been discussed under Article 173 of the Constitution. Article 172 provides that any property which does not have a rightful owner will belong to the government of the province if located in a province or in all other cases to the federal government. 

Part VII : The Judicature (Articles 175-212)

The distribution of courts in Pakistan can be understood by the following:

  1. Chapter 1: The Courts  [Articles 175-175A]
  2. Chapter 2: The Supreme Court of Pakistan [Articles 176-191]
  3. Chapter 3: The High Courts  [Articles 192-203]
  4. Chapter 3A: Federal Shariat Court  [Articles 203A-203J]
  5. Chapter 4: General Provisions Relating to the Judicature  [Articles 204-212]

Part VIII : Elections (Articles 213-226)

Articles 213-221 deal with Chief Election Commissioner and Elections Commission. While Article 213 (1) provides that it is the President who appoints a Chief Election Commissioner, Article 213 (2) specifies that no person shall be appointed 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. Article 218 provides for the formation of an Election Commission to conduct elections to both Houses of Majlis-e-Shoora (Parliament). Electoral laws and conduct of elections have been discussed under Articles 222-226. 

Part IX : Islamic Provisions (Articles 227-231)

As per Article 227 of the Constitution of Pakistan, all laws must be brought into compliance with the Islamic Injunctions as written forth in the Holy Quran and Sunnah, referred to as the Injunctions of Islam in this section, and no legislation shall be made that is in violation of such Injunctions. An Islamic Council formation for allowing and supporting Pakistani Muslims to conduct their lives in line with the values and teachings of Islam on an individual and community level, decide on repugnancy of laws, provide proposals for efforts to bring current legislation into compliance with Islamic injunctions, has been provided under Article 228.

Part X : Emergency Provisions (Articles 232-237)

Article 232 provides that emergency can be proclaimed to the President’s satisfaction if he believes that the security of Pakistan, or any portion of it, is threatened by war or foreign attack, or by internal disturbances beyond the control of a Provincial Government. Article 233 lays down that fundamental rights will be suspended during the emergency period.  Article 235 lays down the provision for proclamation in case of a financial emergency. 

Part XI : Amendment of Constitution (Articles 238-239)

While Article 238 provides that the Constitution may be amended by the Act of Majlis-e-Shoora (Parliament), Article 239 talks about the Constitution Amendment Bill, that is, the steps involved in amending a part of the Constitution. 

Part XII : Miscellaneous (Articles 240-280)

Part XII of the Constitution of Pakistan can be understood in seven chapters, namely,

  1. Chapter 1: Services  [Articles 240-242]
  2. Chapter 2: Armed Forces  [Articles 243-245]
  3. Chapter 3: Tribal Areas  [Articles 246-247]
  4. Chapter 4: General  [Articles 248-259]
  5. Chapter 5: Interpretation  [Articles 260-264]
  6. Chapter 6: Title, Commencement and Repeal [Articles 265-266]
  7. Chapter 7: Transitional  [Articles 267-280].

Schedules of the Constitution 

The Constitution of Pakistan has five schedules, namely,

  1. First Schedule: Laws exempted from the operation of Article 8(1) and (2).
  2. Second Schedule: Election of President.
  3. Third Schedule: Oaths of Office.
  4. Fourth Schedule: Legislative Lists.
  5. Fifth Schedule: Remuneration and Terms and Conditions of Service of Judges.

Important amendments to the Constitution 

The Constitution of Pakistan has undergone 25 amendments as of 2022. The 25th Amendment Act (to mainstream the Federally Administered Tribal Areas), received the assent of the President on May 31, 2018. Some of the significant constitutional amendments have been highlighted hereunder. 

Constitution (Seventeenth Amendment) Act, 2003

The Constitution (Seventeenth Amendment) Act, 2003 was a parliamentary validation of amendments made by Gen. Pervez Musharraf’s Legal Framework Order with certain changes. It was passed by the National Assembly on December 29, 2003, and by the Senate on December 30, 2003. It received the President’s assent on December 31, 2003.

Constitution (Eighteenth Amendment) Act, 2010

Pakistan approved significant revisions in April 2010 with the passage of the 18th  Amendment, which reinstated many of the 1973 Constitution’s provisions. It curtailed the President’s powers and returned authority to the provinces. It restored the previous military head and President Pervez Musharraf’s constitutional reforms by restoring presidential powers to Parliament and the Prime Minister, including the ability to dissolve an elected Parliament and designate military chiefs. Despite the fact that commentators praised the amendment’s promise of devolution of powers from the federal government to the provinces, most anticipated that the allocation of natural-resource earnings between the federal government and the provinces would be difficult to accomplish.

Constitution (Twenty-First Amendment) Act, 2015

The Twenty-First Amendment (2015) permits military tribunals to circumvent the judiciary and hold trials for terrorism-related offences. The same remained in force until January 7, 2017. The Statement of Objects and Reasons provided that there was a unique scenario and set of circumstances that necessitate specific measures for the quick prosecution of terrorism, war, or insurgency against Pakistan, and the prevention of activities endangering Pakistan’s security. Miscreants, terrorists, and foreign-funded groups pose a major and unprecedented danger to Pakistan’s territorial integrity. Because of the unique scenario described above, it is necessary to make an appropriate constitutional change, and therefore, the Amendment Act was brought about.

Conclusion 

A pattern of military coups interspersed with short-lived civilian government has weakened Pakistan’s Constitution. A democratically elected legislature did not write a Constitution until 1973. Even after then, coups and the demands of influential members of Pakistan’s political class have repeatedly changed the document. It has alternated between parliamentary democracy and one in which the president wields executive power. It also gave provinces more power and expanded fundamental rights to include access to education and information. The people and lawmakers in Pakistan sought the revisions as a reversal of actions made by previous military ruler and President Pervez Musharraf. Nevertheless, it is correct to state that Pakistan’s Constitution establishes overall guiding principles for the country’s administration.

References

  1. https://www.cfr.org/backgrounder/pakistans-constitution.
  2. http://www.commonlii.org/pk/legis/const/1973/13.html.
  3. https://www.jstor.org/stable/2753474.
  4. https://www.bloomsbury.com/uk/constitution-of-pakistan-9781509919130/.

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