Constitutional History of Pakistan
Constitutional History of Pakistan
Constitutional History of Pakistan
The Islamic Republic of Pakistan covers nearly 804,000 square kilometres of the former Indus Valley.
Today, it shares borders with Iran and Afghanistan on the west, China on the north, the Arabian Sea on the
south, and India on the east. While Pakistan is ethnically diverse, it is overwhelmingly Muslim, which has
led to tensions with India over the former British-Indian states of Jammu and Kashmir on the northeast
boarder. Additionally, hyper urbanization has led to class tension. Out of 187 million citizens, 36 percent
live in cities, with approximately 830,000 people in the capital city of Islamabad. The largest city, Karachi,
contains 13 million people.
Constitutional history
Prior to its independence from Britain in 1947, Pakistan was originally governed under the Government of
India Act of 1935. This act, drafted by the colonial master Britain, functioned as Pakistan’s constitution at
the time and provided for a strong central government, a governor-general with unreviewable powers, and
very limited representation which continued feudal-like politics. Following independence, a constituent
assembly was elected and tasked with drafting a new Constitution. On 23 March 1956, after a difficult
drafting process that included a replacement of the assembly by the governor-general, a new constitution
was adopted. It abolished the office of the governor-general and replaced it with a president and prime
minister who would share the executive functions. In addition, it created a unicameral legislature with
equal seats for the East and West Pakistan, but it maintained the central power of the government by
ensuring that the President remained powerful and the provinces never had more power than the national
government.
Before the country’s first parliamentary elections were to be held, President Iskandar Mirza abrogated the
constitution and established martial law. The President feared that the influence of East Pakistan would
undermine his hold on power. He appointed army chief Ayub Khan as the martial administrator, which
gave the military a strong hold on power, with Khan at its head. Khan was later elected president as the
result of 1958 coup, and on 1 March 1962, he promulgated a new constitution. This document established
a legislature whose sole purpose was to approve and legitimize government decisions. It abolished the
office of the prime minister, giving sole executive authority to the President, who, it mandated, had to
have held a rank higher than lieutenant-general in the military for at least 20 years. While Khan was re-
elected in 1965, he was forced to resign in 1969. General Yahya Khan replaced him, martial law was
declared, and the Constitution was suspended. After East Pakistan declared its independence in 1971,
becoming the new state Bangladesh, Ali Bhutto took over the presidency and established a new
constitution on 14 August 1973, current to date.
1973 Constitution
The current Constitution of Pakistan contains more than 250 articles, and several important amendments.
Imbedded in the document are certain key components of Islam, including the subservient status of
women. The Constitution also establishes a federal state, dividing power between the local and national
governments. The national power is divided between the President, the Prime Minister, the Legislature,
and the Courts.
Executive branch
The President of Pakistan is the Head of State. He is elected by an electoral college made up of
representatives from both houses of the legislature and the provinces. The Presidential mandate is limited
to two 5 year terms, but he may resign or be impeached by a two-thirds vote of Parliament. The President
may grant pardons and appoint ministers, the provincial governors, and the chiefs of the armed forces.
The President also may veto legislature, though this can be overridden by a majority vote in both houses
of the Parliament. He may also suspend certain individual rights in cases of emergency. In 1985, the
President was given the power to dissolve the National Assembly by amendment, but this power, along
with the ability to appoint military chiefs, was removed by a 2010 amendment.
The Prime Minister is the Head of Government, and is appointed by the President from the lower house of
Parliament. The Prime Minister in turn shares the power to appoint Cabinet members with the President.
The Cabinet acts as an advisory body. In cases where the President must seek the advice of the Prime
Minister and Cabinet, he may ask them to reconsider only once, and if the advice does not change, the
recommendation must be followed. As the Head of Government, it is also the Prime Minister’s role to
oversee the execution of laws and the smooth functioning of government.
Legislative branch
The Constitution creates a bicameral Parliament, consisting of an upper and lower house. The upper house
is the Senate, which has 100 members. The Constitution provides that Senators are to be elected by the
provincial assemblies, the tribes, and the capital. It also mandates that at least four women are to be
elected from each province. The Chair and the Deputy Chair of the Senate are elected to three year terms.
While the Senate may introduce and pass most legislation, it cannot pass finance bills or approve the
federal budget. That is left to the lower house, or the National Assembly. The 272 members of the
Assembly are elected for a maximum of 5 years by a direct vote. 60 seats are reserved for women, and 10
are reserved for non-Muslim minorities such as the Christians, Hindus, and Sikhs. The lower house may
pass any kind of legislation, including financial legislation.
Judicial branch
Pakistan’s Judiciary is comprised of a Supreme Court, a High Court for each province, and any other lower
courts Parliament creates. The Supreme Court is the highest judicial body, with original and appellate
jurisdiction over civil, criminal, and constitutional cases. It is the final arbiter in all constitutional disputes
cases. It may also advise the other branches in the formation and passing of laws. The Supreme Court may
also exercise judicial review that is binding on all courts. The Chief Justice is appointed by the President,
and the other Justices are appointed by the President with the advice of the Chief Justice. These judges
may remain in office until the age of 65. The Chief Justice also advises the President, the provincial
governors, and the chief justices of the high courts, on appointment of judges to the provincial high courts.
In addition to these constitutionally mandated courts, there is also the Federal Sharia Court of eight Muslim
judges and a chief justice selected by the President. This court has jurisdiction over deciding whether laws
are repugnant to Islam, and if a law is found to violate principles of Islamic law, the President or provincial
governor must attempt to bring the law into conformity. It also has appellate jurisdiction over decisions
from the criminal courts involving such offenses as intoxication, intercourse, or theft.
In addition to these three branches, the Constitution also provides for an Ombudsman, or the Mohtasib.
The President appoints the Mohtasib to one four year term. The holder of this office is tasked with
enforcing administrative accountability and investigating wrongs committed against citizens by members
of the government. In rectifying injustices committed through maladministration. The Mohtasib may award
compensatory damages in an effort to bridge the gap between citizens and their government, curb
government abuses and misuse of powers, and to improve government administrative processes.
However, the Mohtasib does not have jurisdiction over any cases involving personal grievances of
government officials, foreign affairs, national defence, or the armed services.
Provincial governments
Because the Constitution establishes a federal system of government, it also created four provincial
governments with considerable autonomy. Each of the provinces has a governor, a Council of Ministers
appointed by the governor, and a provincial assembly. The assemblies are elected by a direct vote, with
reserved seats for minorities.
Constitutional Challenges
Since the implementation of the 1973 Constitution, Pakistan has continued to be plagued with political
challenges. The Constitution provided for provincial autonomy in reaction to the loss of Bangladesh in
1971, which seceded because the Bengali minority felt marginalised. Despite these lessons and the
inclusion of provincial autonomy in the Constitution, the national government has continued to maintain
authority.
In addition to the federalism questions, questions remain about the role of the military in politics. The
Constitution contained provisions declaring it treason not only to abrogate but to attempt, conspire, or
plan to subvert the Constitution in an effort to prevent future military takeovers. However, in 1977, army
chief Zia ul-Haq staged a coup, proclaimed martial law, suspended the Constitution, and established a
Provisional Constitutional Order. The PCO gave the military not only the power to rule, but to amend the
Constitution to remain in power. Although the 1973 Constitution was revived in 1985, it was amended to
shift powers from the Prime Minister to the President and to give the President the power to dissolve the
National Assembly. This amendment further weakened provincial autonomy, the legislature, and the
judiciary. This amendment was also used by the President to dismiss the elected governments of Prime
Minister Benazir Bhutto and Nawaz Sharif in the early 1990s in the wake of corruption charges. Sharif
returned to power in 1997, but he was deposed by a coup led by army chief General Pervez Musharraf two
years later.
These coups highlighted yet another problem under the 1973 Constitution: the weakness of the judiciary.
Even though the Courts are meant to act as protectors of the Constitution and the separation of powers,
they have often given way to Pakistani leaders on matters of constitutional law, either in the name of
necessity or survival. When Musharraf took over the government in 1999, the Supreme Court validated his
declaration of emergency and creation of another PCO as a state necessity. The PCO subsequently
deprived them all of their authority to act as a check on the government by barring them from making
decisions against the President or questioning the state of emergency. In fact, the Supreme Court
expanded Musharraff’s authority by giving him the power to amend the Constitution. However, in 2007,
Musharraf was elected in a second election. He again suspended the Constitution, declared a state of
emergency, and established a PCO. The PCO passed a series of laws curbing the freedom of the press and
establishing military courts with the power to try government critics. When the Supreme Court refused to
sign off on this decision by the President and the PCO, Musharraf attempted to impeach the Chief Justice
on corruption charges. This action led to a boycott of the judicial system led by the nation’s lawyers, who
viewed the move as politically charged. By May 2007, the movement led to mass protests, and after
Benazir Bhutto was assassinated upon return from exile later that year, Musharraf’s popular support was
diminished. He was forced to resign amid impeachment proceedings begun by a new coalition government
in 2008.
The 2010 constitutional amendments were meant to prevent another military coup by limiting the powers
of the President and restoring powers to the provinces. The 18th Amendment also removed from the
President the power to dissolve the National Assembly and the power to appoint military chiefs. However,
many remain concerned about the execution of these provisions, especially in regards to federalism and
revenues. There also remains concern that, while the military still retains political power, military coups
will continue to happen. Some see a strengthened judiciary that refuses to validate such coups as the
solution, forcing leaders to stay within the guidelines of the rule of law and the military to remain out of
the political sphere.
Timeline
British create independent Muslim nation of East and West Pakistan
1947 from Indian colony, Muhammad Ali Jinnah becomes first Governor
General
1948 Jinnah dies, war with India over Kashmir erupts
1951 Governor General Liaquat Ali Khan assassinated
1956 New Constitution proclaims Pakistan an Islamic republic
1958 General Ayyub Khan takes power and declares martial law
1960 General Ayyub Khan becomes President
1969 General Yahya Khan takes over as President
Civil War between East and West Pakistan begins over eastern attempts
1971
to secede, East Pakistan becomes Bangladesh with support of India
1973 Zulfiqar Ali Bhutto takes control of the country
Amid riots protesting allegations of vote-rigging by Bhutto’s party,
1977
General Zia ul-Haq stages military coup