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Chapter:

Constitutional development of Pakistan

Interim constitution
Under the article -8 act of independence 1947, India act 1935 was adopted as
the interim constitution of Pakistan. Important features of interim constitution that had
deep impacts on constitutional development were as follows:

1. Federal structure

Pakistan inherited a federal structure from its British political legacy in which
provinces were given autonomy. Three subject lists incorporated in the interim
constitution.

Provisional, central & concurrent

2. Power of Governor General

Under the 1935 act of India the office of Governor General was most powerful
as he had full control over the government institutions.

3. Power of prime minister & other ministers

Prime minister and all other ministers were appointed by Governor General.
According to the interim constitution ministers would remain in office as long as
they enjoyed the confidence of governor general.
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1st constitutional assembly

After the death of Quaid-e-Azam, Molvi-Tameez-ud-Din became the president of
assembly. The total strength of assembly was 69, later on rose to 79. Total members of
Muslim league numbered 59 while the opposition was very small. Under India act the
constitutional assembly had to perform two important functions:

1. Task of framing the new constitution

2. Enact laws as federal legislation

Constitutional development of Pakistan

Under the act of 1947, India and Pakistan were given the dominion status. This act
tenegated the supreme law making power to the respective legislature of each state in
addition to the task framing their constitutions. According to the provision of act of
independence, India act 1935 was to work as an interim constitution for both the
dominion till the time they frame their own constitutions.

Objective resolution
Liaquat Ali Khan

The first big step in the framing of a constitution for Pakistan was taken by the
Constituent Assembly on 12 March 1949, when it passed a resolution on the 'Aims and
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Objectives of the Constitution', popularly known as the Objectives Resolution. It laid the
foundation of the constitution and indicated the broad outline of its structure. The
resolution was moved by Liaquat Ali Khan, the first Prime Minister of Pakistan.

The resolution was debated for five days. The leading members of the government and
a large number of non-Muslim members, especially from East Bengal, took a prominent
part. Non-Muslim members expressed grave apprehensions about their position and role
in the new policy.

Hindu members of the Constitutional Assembly argued that the Objectives Resolution
differed with Muhammad Ali Jinnah's (Quaid-e-Azam) view in all the basic point

As the country came into existence in the name of Islam, there was no way out but
constitutional assembly except to make announcement in this regard.

Specifying the objectives and the important features of futures constitution of Pakistan.

Following fundamentals principals were laid down:

1. Sovereignty belongs to Allah Almighty.

2. The authority delegated to the state of Pakistan to its people within the limits
prescribed by Him

3. Principles of democracy, freedom, equity, tolerance, and social justice as

enunciated by Islam shall be fully observed.

4. People would be encouraged to order their lives with the teaching of Islam

5. Pakistan would be a federal state

6. Protection of fundamentals rights

7. Enforcement of justice and fair play

8. Protection of rights of religious minorities

9. Obligatory to secure the independence judiciary

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Formation of committees
After the approval of objective resolution, the constitutional assembly formed different
committees for making recommendations necessary to constitution making. The basic
principle committee was to prepare a draft of constitution in the light of objective
resolution. Total numbers of this committee was 24.

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First report of the basic principle was presented on 28 September 1950. Important
recommendations were as follows:

1. Central assembly will consist of two houses, (upper house& lower house) enjoying
the equal parts for five years team.

2. Parliamentary system of government.

3. Joint session of both houses to elect president

4. Provincial governors to be nominated by

5. Residuary powers resting with the provincial government

Reaction
The report was criticized by the various circles. The east Pakistani members of assembly
were most critical as the committee undermined the proper representation of East
Pakistan.

The population of East Pakistan was slightly larger but in the upper house the West
Pakistan was to get the great share.

The recommendation off Urdu as a national language was also condemned in east
Pakistani circles. Because of severe opposition of liaqat Ali khan invited proposal from
various segments of society. The second report was to be presentated by liaqat Ali
khan. And khawaja nazim ud din became the new prime minister. Khawaja Nazi mud Din
submitted the second report on 22 December 1952. Some important features were:
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1. The second chamber was to consist of 150 members while 66 were to be

reserved for the east wing and the rest for the whole west wing

2. The lower house would consist of 400 members on party basisi between two
wings. The lower chamber was to be more powerful as cabinet would be
accountable to it.

3. The both houses of parliament would elect the president

Reaction
West Pakistan circles criticize the report, as the formation of upper chamber was not
accountable to them. The formation the upper chamber was contrary to the principle of
federation; they demanded parity in the representation among federation units in the
upper chamber.

Constitution of Pakistan

The Constitution of Pakistan is the supreme law of Pakistan. There have been several
documents known as the Constitution of Pakistan. The Constitution of 1973 is the existing
constitution, which provides for a parliamentary system with a President as head of state
and popularly elected Prime Minister as head of government. Pakistan has a bicameral
legislature that consists of the Senate (upper house) and the National Assembly (lower
house). Together with the President, the Senate and National Assembly make up a body
called the Majlis-e-Shoora (Council of Advisors) or Parliament.

The Constitution of 1956

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The Pakistani Constitution of 1956 was the first Constitution of

an independent Pakistan, which achieved independence from the United Kingdom in
1947. It was enacted on March 23, 1956, and was superseded by the 1973 constitution.

After nine years of efforts, Pakistan was successful in framing a constitution in 1956.
The Constituent Assembly adopted it on 29 February 1956, and it was enforced on 23
March 1956, proclaiming Pakistan to be an Islamic republic.

 The Constitution was lengthy and detailed;

 It contained 234 articles divided into thirteen parts and six schedules.

 The Constitution of 1956 provided for federal system with the principle of
parity between East Pakistan and West Pakistan.

 The Federal Legislature was to perform like the British Parliament.

 The Centre was invested with such powers as to take unilateral action in
emergency and it could influence the provincial autonomy.

 The Constitution of 1956 provided for the parliamentary form of government,

where real executive authority was vested in a cabinet, collectively responsible
to the legislature.

 The cabinet was presided over by the Prime Minister.

 The Constitution declared that there would be only one house of parliament
known as the National Assembly and equality between the two Wings (i.e. East
Pakistan and West Pakistan) was maintained in it.

 The Governor General was replaced by a President, who was to be elected by

the Electoral College of Pakistan comprising of members of the National
Assembly and Provincial Assembly.

 Familiar democratic rights and freedoms such as freedom of speech and

expression, of assembly and association, of movement and of profession were
all provided in the Constitution, with the usual qualifications.

Islamic provisions in the Constitution of 1956

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 The text of Objectives Resolution was repeated in the preamble of the

Constitution of 1956 without any major change.
 The name Islamic Republic of Pakistan was selected for the state of Pakistan.
 All citizens of Pakistan were granted freedom to profess, practice and
propagate any religion and the right to establish, maintain and manage
religious institutions.
 According to the directive principles, steps were to be taken to enable the
Muslims of Pakistan individually and collectively to order their lives in
accordance with principles in the Qur'an and Sunnah.
 No law shall be enacted which is repugnant to the injunctions of Islam as laid
down in the Qur'an and Sunnah and that existing laws shall be brought into
conformity with such injunctions. Whether a law was repugnant to Islam or not,
would be decided by the National Assembly.
 Only a Muslim could be qualified for election as President.
 The President should set up an organization for Islamic research and instruction
in advanced studies to assist in the reconstruction of Muslims society on a truly
Islamic basis.
 Teaching of the Qur'an was to be made compulsory for Muslims.
 The purchase and sale of alcohol was banned and prostitution was prohibited.
 No person should be compelled to pay any special tax, the proceeds of which
were to be spent on the propagation of any religion other than his own.
 The state should Endeavour to strengthen the bonds of unity among Muslim
countries

The first martial law and the abrogation of the Constitution

On 7 October 1958, President Iskander Mirza staged a coup d'état. He abrogated the
1956 constitution, imposed martial law and appointed General Muhammad Ayub Khan as
the Chief Martial Law Administrator and Aziz Ahmad as Secretary General and Deputy
Chief Martial Law Administrator. However, only three weeks later General Ayub—who was
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openly questioning the authority of the government prior to the imposition of martial
law—deposed Iskandar Mirza on 27 October 1958 and assumed the presidency that
practically formalized the militarization of the political system in Pakistan

Constitution of 1962
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Muhammad Ayub Khan

The constitution of 1956 became a victim of palace intrigues. President Isikander Mirza
was not satisfied with his constitutional powers. He was also not sure of his re-election
as president in the next elections scheduled to be held in 1958.The ministers had lost
support of the masses and the political parties gaining popularity of the public, did not
enjoy cordial relations with Isiknder Mirza. On October 7, 1958, by colluding with
Commander-in-Chief General Muhammad Ayub Khan, he abrogated the constitution of
1956, democracy was done away with and martial law was clamped in the country.

Only twenty day had lapsed General Muhammad Ayub Khan overthrew
Isikander Mirza and he seized the reins of the government. President Ayub Khan made
propaganda of the failure of democracy; then he himself introduced a system of “basic
democracies” which meant that the elections would be indirect.

Presented the report:

A Constitutional Commission was set up which presented its report to
he President in May 1961. In the light of this report, Ayub Khan through a presidential
order promulgated the “presidential” constitution in 1962.

Clauses:
This constitution also contained some Islamic clauses, through the
attitude of avoiding practical steps was also apparent. Besides that the Islamic clauses
which had been willingly included in the Constitution of 1956 by chaudhri Muhammad Ali,
were included in the constitution of 1962 under public pressure and demand.
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Objectives Resolution-Preamble of the

constitution:
The Objectives Resolution was incorporated in the Constitution of 1962 as its Preamble.
It contained the concept of sovereignty of Allah and Quaid-i-Azams wish to establish an
Islamic Republic and a society based on Islamic concept of social justiced, democracy,
freedom equality and tolerance.

The original Resolution said that the authority, delegated by God to the people of
Pakistan would be exercised through the representatives of the people “Within the limits
prescribed by God”. In the Constitution of 1962, the underlined portion was omitted.

Islamic Principles as Principles of State Policy:

Like the constitution of 1956, Islamic principles were present in the constitution as
principles of state policy. “The Muslims of Pakistan would be enabled to lead their lives
according to the Quran and Sunnah”, the word Islam had been substituted for the Words
the Quran and Sunnah. In fact, the ruling class wanted to avoid the application of
Sunnah considering it something controversial.

Compulsory Education of Quran and Islamite:

The constitution also stated that the Government would arrange for the
compulsory education of Quran and Islamite.

National Unity and Practice of Islam:

The encouragement and promotion of the unity of the Muslims of Pakistan

and practice of Islam were also the principles of the state policy.
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Zakat, Mosque and Auqaf:

The revival of zakat system, establishment of mosques and organization of

auqaf were also included in the principles of state policy.

Cordial Relations with Islamic Countries:

The Government was advised to maintain friendly relations with all the
Islamic countries.

The Muslim Head of the State:

After much discussion and debate, it was finally decided that the president
must always be a Muslim.

Name of the country:

In the constitution of 1962, the country was officially called “Republic of

Pakistan”. Under public pressure the constitution was amended and Pakistan was again

given the name of “Islamic Republic of Pakistan”. Legislation o Islamic

Laws:

The constitution said that no law repugnant to the injunctions of Islam would be
made. The constitution of 1962 was silent on the issue of amending the existing laws
according to the Islamic teachings. But soon under the public pressure, the National
Assembly by an amendment changed the concerned clause: “No Laws will be repugnant
to the injunctions of Islam as laid down in the Quran and Sunnah”.

Islamic Advisory Council:

The constitution of 1962 also provided for the setting up of an

Islamic Advisory Council, consisting of five to twelve members, who were to have not
only comprehensive knowledge of Islam but were also to be conversant with the
economics, political judicial and administrative problems of Pakistan. The Council could
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suggest to the central and provincial Government the ways and means as to how the
lives of the Muslims of Pakistan could be mould according to the teachings of Islam. If
the president, provincial Governors, National Assembly or Provincial Assembly asked the
Council whether or not any proposed law was repugnant to Islamic principles.

Islamic Research Institute:

The framing and promulgation of Islamic laws, Islamic Research Institute

was set up. Its head office was in Islamabad while the regional offices were situated at
Lahore and Dacca.

Yahiya Khan Regime and L.F.O:

In the constitution of 1962, the President enjoyed so vast powers that
someone likened him to the clock tower of Lyallpur; The President was virtually a
dictator. In 1968, a country –wide movement was started against the despotic rule of
Field Marshall Ayub Khan. The agitation was started by the alliance of right wing parties,
Pakistan Democratic Movement. Later a larger front was made under the name of
Democratic Action Committee; the right wing parties demanded the abrogation of 1962
constitution and the restoration of 1956 constitution. But the leftists wanted the framing
of a new constitution. In March 1969, Ayub Khan resigned from president ship and
General Yahiya Khan, by abrogating the constitution of 1962, imposed another Martial
law. Yahiya Khan issued a Legal Framework Order (L.F.O) for the framing of a new
constitution. It determined the broad features of the proposed constitution; province-
wise seats of National Assembly were fixed, the rules of conduct of the elections were
laid down and guiding principles for the farming of the new constitution by the National
Assembly were settled. Important features of the L.F.O are as under:

 The Islamic Republic of Pakistan will be a federation and the unity and integrity
of the nation will be maintained at any cost.

 Islamic ideology as the basis of Pakistan will be protected under all

circumstances and the head of the state must essentially be a Muslim.

 The fundamental principles of democracy will be protected and legislative

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Assemblies, Central as well as provincial, will be elected by adult franchise.

 Fundamental rights will be protected constitutionally.

 Independence of judiciary will be guaranteed.

 In legislation and other matters, the provinces will be accorded maximum

autonomy but for the protection of the solidarity and independence if the
country, all necessary powers will be given to the centre.

Failure of constitution:

President ayub khan ruled the country for more than ten years. In his government a
number of reforms were introduced and country made a great progress in industry but
the attitude of president ayub khan was quite to dictator. The people started agitations
when the situation became out of control, he proclaimed Martial law once again
handed over the power of armi Chief General Agha Yehya Khan

Government of General Yehya Khan:

Army Chief General Yehya Khan took charge on 25th March 1969. New Army chief Martial
administrator and abrogated the constitution of 1962.
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1st General Elections:

Zulfikar Ali Bhutto

The period of General Yehya Khan was very short but important events took place in the
history. First General Elections were held in 1970 in which Sheikh Mujibour Rehman of
Awami League and Zulfiqar Ali Bhutto of Peoples Party got majorities in East and West
respectively. Sheikh Mujibour Rehman got majority in election but due to initial politics
of politician, General Yehya Khan intrigued to remain in power not allowing the majority
party to form its government. It created East to separate in December 1971 and a new
country Bangladesh emerged on the map on the world. In the meanwhile Yehya Khan
handed over power to the leader of Peoples Party, in this way Zulfiqar Ali Bhutto took
charge. To run the affairs of the country 25 members of legislature was constituted for
future constitution.

Approval of constitution of 1973:

Committee presented its recommendations in the form of a draft n 31 December 1972
in the National Assembly.

National Assembly discussed the constitution in detail and approved it with certain
amendments’ on 10 April 1973. The first constitutions of Pakistan having the approval of
all the political parties were enforced on 14th August 1973.
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Salient feature of the Constitution of 1973:

The salient features of the Constitution of 1973 are:

1. According to the constitution Federal parliamentary system was introduced in

the country

2. Judiciary was declared fully independent and free from all pressures.

3. Citizens were given fundamental rights.

4. Full protection of civil rights of citizen was granted.

5. Urdu was declared the national language of Pakistan.

Islamic Clauses of the constitution of 1973:

This constitution also include some Islamic clauses which are made the necessary part of
this they are as follow

1. Sovereignty of Allah:

Sovereignty all over the universe belongs to Allah and power is a trust to be exercised
by the elected representatives of the people.

2. Name of Country:

Pakistan was declared Islamic Republic; it signifies that Pakistan is an welfare state.

3. Definition of Muslim:
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Muslim is one who believes in

 The oneness of Allah.

 The finality of the prophet hood of Hazrat Muhammad (S.A.A.W).

 Divine books and the Day of Judgment.

4. President and Prime Minister to be Muslims:It was made

compulsory for the head of states, President and the head government, Prime
Minister to be Muslims.

5. Official Religion:

Islam was declared official religion of the states.

6. Enforcement of Islamic Principles:

Emphasis was laid on the development of legal system in the light of the basis Islamic
principles.

7. Religious Education:

The Govt. was made responsible to make special arrangement for religious education of
the Muslims.

8. Promotion of Islamic Values :

Promotion of Islamic values such as democracy, justice, tolerance, and freedom and
equity.

9. System of Zakat and Usher:

System of Zakat and Usher was introduced in the country.

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10. Relation with the Islamic countries:

Establishment of special brotherly relations with the Islamic countries.

11. Islamic Ideology Council:

Constitution of Islamic ideology council to develop an Islamic society and laws in the
light of the teachings of Islam.

12. Minorities Rights:

The minorities were ensured to have rights and security

13. Legislation in the light of Quran and Sunnah:

The constitution asserts that the existing laws will be brought in conformity with the
Quran and Sunnah with in a period. However, the personal law f the non Muslim minorities
has been recognized as a valid law and they have been given full right as citizen of
Pakistan.

14. Eradication of Usury:

In the constitution of 1973, it has been promised that the economy of the country will
be made free from evil of usury.

15. System of Auqaf:

During the period of Ayub Khan the constitution of 1973 gives it much more importance
and declares it to be the duty of the government to administrator Auqaf properly.
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16. Introduction of the system of Zakat:

The Government will arrange for the collection of Zakat and its proper distribution to
the deserving people.

17. Publication of the Holy Quran:

In the constitution of 1973 the Government of Pakistan has been held responsible for
the publication of the Holy Quran, free from all errors and omissions.

18. Education of the Arabic Language:

The constitution also gives an assurance that the Government of Pakistan would
maximum facilities for the education of Arabic language.

19. Qiadiani and Lahori Mirzai groups:

They tried to join the Muslims by distorting and misrepresenting the facts. But they
failed because in this constitution there is proper definition of Muslims

Comparison with previous constitutions

With regard to provincial rights the 1973 constitution was in fact the most centralised
of Pakistan's various constitutions. The Government of India Act of 1935, which Pakistan
adopted as its first working constitution, granted the federal government 96 items of
power. The 1956 constitution reduced that number to 49, and this was retained in the
1962 constitution. In 1973, however, it was then enlarged to 114.

Steps Taken By Bhutto Government:

Though the popular belief is that this Government was not serious in its promise of
enforcing Islam many important measures in this direction in this were taken during this
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period

1. The Islamic provisions of the Constitution of 1973 were far better than those of
the previous constitutions.

2. The historical decisions about Qadianis were another notable step.

3. Though, may be under the pressure of Nizam-i-Mustafa movement, the credit,

nevertheless, goes to Bhutto government.

Movement for Nizam-i-Mustafa:

Introduction:
As the general elections of 1977 were rigged on a large scale, the Pakistan National
Alliance (P.N.A) of opposition decided t start a protest movement, which came to be
called as movement for Nizam-i-Mustafa.

Mr. Bhutto had confessed in a public meeting that when he got tired, he drank a
little. This open admission played an important part in launching a movement against
him. To give an Islamic coloring to the government a few measures were taken such as
declaring Friday as holiday, putting ban on horse racing and legislation against drinking
and prostitution. However, the people declared these measures as ‘’political expediency”
and continued their movement for Nizam-i-Mustafa.

Arrival of Zia-ul-Haq:
From March to July 1977, this movement gained momentum and could not be suppressed
even by curfew Or Martial Law. During the movement, “the people’s government” took
extremely oppressive measures and inflicted untold misers on the people. But the young
men faced the bullets fearlessly the Ulema bravely encountered the suffering of
torture-cells; they arrest a large number of people. At last the army had to prevent a
civil war and on July 4, 1977 by a General Zia-ul-Haq seized the power. The new
government was alive to the Islamic fervor of the masses and the importance of Tehrik-
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i-Mustafa. General Zia-Ul-Haq won the heart of people by the lauding the movement in
his speech.

Zia’s Measure for the Enforcement f Islam:

When Zia-ul-Haq came to power, a popular conception was that every government paid
only services to Islam. General Zia-ul-Haq was aware of such feelings. So, he directed
his attention to the taking of practical measures. In this regard, following steps can be
enumerated:

1.Favorable Atmosphere Created:

The Zia government worked to create such an atmosphere where by acting upon
Islam was appreciated and opposing Islam was disapproved. In this regard his
personal example played an important part. He himself acted upon the Islamic
injunctions. He was free from all those vices which are rampant in the ruling class.

2.Reform in information media:

Media plays an important role in creating favorable public opinion for a particular
system. Therefore, Zia government introduced reforms in electronic media. Instead
of promoting music’s and dancing they promote the Islamic values

3.Ban on Obscene Ads:

An important aspect of reforms in the media was the banning of obscene
advertisement on television and newspapers.
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4.Contact with Ulema:

For the enforcement of Islam, the support of the Ulema was essential. President Zia-
ul-Haq convened conventions of Ulema to provide them an opportunity not only to
express their opinions freely but to criticize the measure of the government.

5.Eradication of Lawlessness:
Some concrete steps were taken for enforcing law and order and for eradicating
obscenity and vulgarity

6.Prayer in Congregation:
The instruction for making arrangements for Zhur prayer in government offices,
schools and colleges were a laudable act. This practice is still followed in some
offices and educational institutions. Nazimin-i-Salat was appointed in every locality.

7.Respect of Ramzan:
In June 1981, special ordinance for enforcing respect for the month of Ramzan was
issued, according to which anyone, not respecting the rites of Ramzan could be
imprisoned for three months and fined for RS500.

8.Better facilities for Hajj:

Zia government adopted a policy to provide opportunities for the maximum people
to perform Hajj. For the guidance of Hajjis, “Khaddam-ul-Hujjaj” was appointed.

9.Reorientation of Education Policy:

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Zia took the following step:

 All text books were reviewed from Islamic point of view.

 Islamiat and Pak Studies were including as compulsory subjects.

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 From 6 to 8 class, Arabic was introduced as compulsory subject.

10. Islamic University, Islamabad:

The Government of Pakistan had earlier set up an Islamic University at Bahawalpur.
During the Zia period start upon another University at Islamabad. The University
started its work in Faisal Mosque on January 2, 1981.

11. Setting up of Shariah Court:

Through the above mentioned Ordinance and for the enforcement of Islamic
Criminal law, a Shariah Court was set up which enjoyed the status of High Court.

12. Shariah Bench of the Supreme Court:

The highest court of appeal for the cases relating to Islamic Law is Shariah Bench
of the Supreme Court where the principles of Islamic Law can be discussed and
debated.

13. Plan of Qazi Courts:

It is a well known fact that the present complicated judicial system has failed to
provide justice to the aggrieved party. Therefore, a decision was taken to set up
simple and Qazi Courts.

14. Appointment of Federal Ombudsman:

In June 1981, the president put forward the proposal for the appointment of an
ombudsman. On January 1983 through a special ordinance, the post of Ombudsman
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was created.

15. National Language and National DRESS:

The Zia government took steps to break the psychological shackles of western
domination. All the high government officials were instructed to wear national dress.
To promote national language, important measure were taken, such as the Urdu
address of the President and Finance Minister, instructions to write the number
plates of vehicles in Urdu, promise to change the official correspondence in Urdu
in a few years.

16. Decision about Qadianis:

In 1984 the, Zia government decide to put to an end to their deception. The
President issued an ordinance according to which they were prohibited from using
the names of Islamic practice and rites. This Ordinance made quite clear that if
Qadianis wanted to live in Pakistan, they would have to accept their status of Non-
Muslims.
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