1. Constitutional
Development in Pakistan

2.  Constitution is a set of laws/principles may be
written or unwritten on which a country is
acknowledged to be governed.
 The system of fundamental laws and principles
that prescribes the nature, functions, and limits
of a government or another institution.
 Constitution is the fundamental law of the land
and it is from this source that all the laws spring.
 body of rules which regulates the system of
government within a state.

3.  In Muslim states, particularly Pakistan, laws
are not derived from the constitution but from
the Almighty Allah who has revealed them in
his book and which have been interpreted and
explained by Holy Prophet Mohammad (PBUH)
through his sayings. Conduct and actual
practice.
 For practical purpose we can assume that laws
which are not repugnant to the holy Quran and
Sunnah have to be framed under the authority
of the constitution and cannot be antagonistic
to its command and spirit.

4.  Codified / Written
 Codified / Partly written
 Non-Codified / Unwritten

5. Federal and unitary constitutions
 Under a federal constitution there is a scheme of
distribution of powers between the central and
local units which are to a certain extent
independent within their own territorial limits. The
central government has its own sphere of
operation of its laws, while the federating units are
governed by their own laws. No one is subordinate
nor are acts as an agent of the other, e.g. the
constitution of Switzerland, Australia and India.
 In the unitary constitution the legislature of the
whole country is the supreme law making body
which may permit other legislatures to exist
subordinates to it. Sweden, New Zealand, France,
have unitary constitutions.

6.  Constitutions are sometimes classified into
“republican” and |”monarchical”. There is
difference between popular or democratic
government as opposed to an autocracy or
dictatorship which established absolutism
of the executive. It is difficult to find today
even one solitary example of the latter
type of the constitution. A republican
constitution on the other hand illustrates
almost every system of government from
democracy to dictatorship.

7.  The English constitution is based largely
upon rules of practice, or convention.
Many of the rules of the English
constitutional government possess merely a
conventional character. This is shown by
the fact that no legal proceedings can be
taken for a breach of their established
terms, since they are merely matters of
practice. The conventions of the
constitution are in the last resort founded
upon the law of the land; and they have
their sanction in the force of law.

8.  The English constitution involves one central
government which pervades the whole
country.
 In flexible constitution every law of every
description can legally be changed with the
same ease and in the same manner by one and
the same body.
 A rigid constitution on the other hand is one
under which certain laws cannot be changed in
the same manner as ordinary laws. They can
be altered or amended by the special
machinery provided in the constitution itself.

9.  The constitution is fundamental or organic or
supreme law standing on a somewhat higher
position than the other laws of the country.
 The constitution is the source from which all
governmental power emanates and it defines its
scope and ambit so that each functionary should
act within his respective sphere.
 The courts are components of the constitution;
they derive their powers and jurisdictions from
the constitution and must confine themselves
within the limits set by the constitution.

10.  Under a constitution prescribing a system where
there is a tracheotomy of sovereign powers the
judicial power must from the very nature of things is
vested in a judiciary.
 Thus the judiciary does claim and has always claimed
that it has the right to interpret the constitution and
to say as to what a particular provision of the
constitution means or does not mean even if it is a
provision seeking to oust its own jurisdiction.
 In the latter case an ouster of jurisdiction is not to be
readily inferred, because, the consistent rule is that
provisions seeking to oust the jurisdiction of superior
courts, even by a constitutional provision, are to be
construed strictly with a pronounced learning against
ouster.

11.  It is not, however, the function of the judiciary
to legislate or to question the wisdom of the law
giver if the law has been competently made
without transgressing the limitations of the
constitution. If a law has been competently
made the judiciary cannot refuse to enforce it
even if the result be to nullify its own decisions.
 The law-giver has also very right to change,
emend or clarify the law if the judiciary has
found that the language used conveyed by the
law-giver.
 The constitution has to be construed like other
document reading it as a whole and giving to
every part therefore a meaning consistent with
the other provisions of the constitution.

12.  The first Muslim constitution was promulgated by
the holy prophet of Islam Mohammad (pbuh)
when he migrated to madina and foundation was
laid for the government of a city state.
 This constitution was framed and put into effect
with the full consensus of not only the followers
of the prophet Mohammad (pbuh) but also had
the concurrence of the Jews and other non-
converts.
 The constitution thus framed gave the details of
the rights and duties of the ruler and the ruled.

13.  The characteristic of Muslim administration had
been that the people including the rulers were
subject to shariat and it was enforced with
greater force of equity, justice and good
conscience in the case of those who did not
embrace the faith of Islam.
 Such notions as “the king can do no wrong”, “the
king cannot be tried in his own court”, “act of
state” and “privilege” etc, are unknown to
Islamic jurisprudence.
 Even the first four rightly guided caliphs had
great respect for the law and would humbly
appear before the Qazi if ever such an occasion
arose.

14.  Muslim theologians and jurists believe in the
supremacy of the law as laid down in the
holy Quran and interpreted by Sunnah and
hold it to be eternal and immutable. This law
was therefore the actual sovereign in Muslim
lands. Sovereignty, says the Holy Quran,
belongs to almighty Allah alone and the
authority to be exercised by the state is
therefore a sacred trust on behalf of Allah
and must be exercised within the limits
prescribed by Him.

15. Minto-Marley Reforms 1909:
 The Act of 1909 enlarged the size of Legislative Council.
 It was provided that the imperial Legislative Council
shall consist of 37 official and 32 non- 0fficial members.
 It was decided that there would be no official majority
in the provincial Legislative Councils but such majority
was considered essential in the Central Legislature.
 The principle of territorial representation was not
accepted. “Representation by classes and benefit was
considered to be the only practical method of
embodying the elective principle in the constitution of
the Indian Legislative Council.” The Act provided for
separate or extraordinary electorates for the due
representation of the different communities, classes
and benefit.

16.  The functions of the Legislative Councils were
increased
 The members were given the right of asking
question and supplementary questions for the
purpose of further elucidating any point.
 The members were given the power to move
resolutions in the Councils.
 In the provinces, Landlords, district Boards and
Municipalities and Chambers of Commerce
were to select members.
 Muslims were given separate representation.
Muslim members of the legislation were
elected by the Muslims themselves.

17.  The Act provided that the Secretary of State
for India was to be paid out of British
revenues. The Secretary of State continued to
possess and perform the duty of
superintendence, direction, and control upon
the affairs of India. The Governor-General of
India was obliged to carry out the orders of the
Secretary of State.
 The Act set up a bicameral legislature at the
centre in place of the imperial Council
consisting of one house. The two Houses were
called Central Legislative Assembly and the
Council of State.

18.  Direct elections were provided for both
houses of the Central Legislative though
the franchise was very restricted.
 The duration of the term for the Central
Legislative Assembly was three years, and
for the Council of State five years, which
could be extended by the Governor-
General.
 The Central Legislature had the power to
make laws for all of British India, for Indian
subjects wherever they might be, and for
all persons employed in the defense forces

19.  The Governor-General could issue an
Ordinance for a period of six months which
had the same force and effect as an Act of
the Central Legislature. He had the power
of veto over the Bills passed by the Central
Legislature.
 The Central Budget was presented before
the Central Legislature in the form of
demands for grants.

20.  The acceptance of an All India Federation.
 The introduction of partial responsibility in
the form of diarchy at the Centre.
 The grant of autonomy to the provinces.
 Safeguards, reservations, special
responsibilities, overriding Powers, etc.in
the hands of the Governors and the
governor-General.
 Creation of a Federal Court, Federal
Railway authority, the reserve Bank of
India, public service Commission for the
Federation and provinces.

21.  There were three basic purposes of the
Act:-
 Establishment of a Federation.
 Provincial autonomy with parliamentary
Government.
 The separation of Burma from India

22.  Provincial Autonomy
 All India Federation
 Diarchy at the Centre:
 Safeguards:
 Rigid Constitution

23.  Pakistan was to be federal republic based on
Islamic Ideology.
 A detailed and comprehensive list of fundamental
rights with an Independent Judiciary was provided
in the constitution.
 The system of the parliamentary form of
government was adopted both at the Centre and in
the provinces.
 There was distribution of powers between the
Centre and the provinces.
 The constitution provided for Pakistan, wherein
equality between East and West wings had been
maintained.
 For the distribution of subjects between the centre
and the provinces, three lists of subject had been
drawn up.

24.  There was a special procedure to be adopted
for the amendment of the constitution, yet it
was the least rigid constitution. It was
reasonably flexible.
 It had provided for two National languages
Urdu for the West Pakistan and Bengali for the
East Pakistan.
 Instead of double citizenship, one citizenship
system was provided for the Federation of
Pakistan.
 The constitution was silent as to be method of
conducting elections both for the Central and
the Provincial legislatures.
 And finally, there were the Islamic characters
of the constitution.

25.  The name of the country will be Islamic
republic of Pakistan.
 The preamble of the constitution embodied
the sovereignty of God Almighty.
 The Head of the State shall be a Muslim.
 Islamic Advisory Council shall be set up.
 No Law detrimental to Islam shall be
enacted

26.  Title of the State will be Islamic Republic of Pakistan.
 A Powerful President who was responsible for
administration and affairs of the state. He should be a
Muslim, no less than 40 years of age, should be capable
to be a member of NA. He would be elected through not
direct elections for a time of five years. If he has held
office for more than 8 years, he could look for
reelection with the support of the NA and the PAs.
National Assembly was given the power to charge the
president, however it was difficult to achieve. President
could dissolve the NA but in that case he must seek re-
election.
 President was the central point of all the Executive,
Legislative and Judicial powers. Cabinet was responsible
to him. All key appointments were to be made by
President. He could issue Ordinances. He could also
announce State of Emergency in the country.

27.  NA was consisted of one house on the basis of
principle of parity between two wings of the
country. There were 150 seats plus 6 seats were
reserved for women. All were elected indirectly.
For the membership minimum age limit was 25
years.
 NA had all the powers of law making but law was to
be finally ratified by the president. President could
sign, reject or return the bill.
 Financial Powers of NA were limited. Only new
expenses could be voted. NA could not reject join
Fund List and Recurring Expenditure.
 There were two provinces of the federation: East
Pakistan and West Pakistan. Only one list of
subjects, i.e. the Central list was given in the
constitution.

28.  Governors were head of the provinces and govern
the province with his cabinet. Provincial
governments were directly under the control of
President. There was a strong center with a
Powerful President. He had enough powers to
manage provincial affairs. In case of emergency
powers Central government could take direct
control of the province.
 Principles of Policy
 • National solidarity would be observed.
 • Interests of backward people would be looked
after.
 • Opportunities for participation in national life.
 • Education and well being of people.
 • Islam would be implemented in day to day life.

29.  Parliamentary System
 President:
 Parliament with two houses
 Federal System
 Provincial Structure:
 Principles of Policy:
 Fundamental Rights:
 Islamic Provisions:
 National Language:
 Judiciary:
 Rigid

30.  A bill to amendment the constitution shall create in the
national Assembly and when the Bill has been passed by
the votes of not less than two-thirds of the total
membership of Assembly it shall be transferred to the
senate.
 If a Bill is passed by the senate with amendments it shall
be reconsidered by the National Assembly; and if the
Bill as amended by the Senate is passed by the Assembly
by the votes of not less than two-thirds of the total
membership of the Assembly, it shall be presented to
the President for the assent.
 If the Bill is passed by the Senate by a majority of the
total membership of the Senate it shall be presented to
the President for assent.
 If the Bill is not passed by the Senate within ninety days
from the day of its receipt the Bill shall be deemed to
have been rejected by the senate.

31.  The President shall assent to the Bill within seven
days of the presentation of the Bill to him, and if
he fails to do so he shall be deemed to have
assented thereto at the expiration of that period.
 When the President has assented to or is deemed
to have assented to the Bill, the Bill shall become
Act of Parliament and the Constitution shall stand
amended in accordance with the terms thereof.
 A bill to amend the Constitution which would have
the effect of altering the limits of a Province shall
not be passed by the National Assembly of that
Province passed by the votes of not less than two-
thirds of the total membership of that Assembly.

32.  The constitutional history of Pakistan is a
reflection of all the peculiarities and contradictions
of its social, economic and political development
since independence for more than a quarter of the
century. The struggle over particular formulations
in various drafts of the Constitution which went on
in the legislative bodies was often an expression of
the clash between the vital interests of the main
social groups in Pakistan.
 It is not surprising therefore that the struggle over
many constitutional issues (the state language,
from of elections, division of powers between the
Federation and the Provinces, etc.) went on for
years, leading to bloody clashes in which thousands
of people were victims and often precipitating
acute political crises.

33.  The constitution of 1973 was an expression
of the balance of class forces established
after the political crises of 1971 and the
collapse of the military dictatorship.
 The present Constitution of Pakistan is
characterized by such fundamental
principles as a parliamentary republican
system, federal state structure, and
proclamation of democracy, freedom,
equality, tolerance and other bourgeois-
democratic freedoms, and the attainment
of social justice as the supreme aim of the
state.