Brief study notes on Constitutional History of Pakistan LLB Notes

 

Brief study notes on  Constitutional History of Pakistan

What is Constitution?

• 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.

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.

Background;-

•  Creation of Pakistan in 1947 was in many ways a unique event which at the same time was bound to have many difficulties primarily due to a consistently hostile attitude adopted by Indian leadership. The Indian leaders continued to create difficulties for Pakistan in the hope that Pakistan  would not survive for long. 
•  One of the most uphill task for the newly created Pakistan was the framing of its comprehensive  Constitution. Both India and Pakistan at their birth adopted Government of India Act of 1935 with  essential amendments as the interim constitution i.e. Parliamentary and Federal in nature. 
•  Quaid-e-Azam with his vast and strong background of handling legal matters took up this problem  with urgency however gravity of other issues compelled him to pay his attention to other matters  which delayed this important process of constitution making.

Forms of Constitution;-

A. Written

B. Unwritten

C. Partly written

Kinds of constitution;-

1)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.

2)Republican and monarchical (Autocratic) constitutions;-

•  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.

3)Conventional;-

•  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.

4) Unitary, Flexible & Rigid;-

•  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.

Rules to interpret a Constitution:-

•  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.
•  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.
•  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.
• he 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. 

Islamic point of view about constitution ;-

• The first Muslim constitution was promulgated by the holy prophet of Islam Mohammad (pbuh)  when he migrated to medina 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.
• The characteristic of Muslim administration had been that the people including the rulers were  subject to sharia 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.
•  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.

Constitutional History of Pakistan;-

 Minto-Marley Reforms 1909:-

•  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.

Act of 1919;-

•  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.
•  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
• 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. 

The Government of India Act 1935:-

•  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.

Basic purposes of the Act

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

Provisions;-

• Provincial Autonomy
• All India Federation
• Diarchy at the Centre:
• Safeguards:
• Rigid Constitution

Constitution 0f 1956;-

•  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.
• 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 

 And finally, there were the Islamic characters of the constitution.

Islamic provisions of the 1956 constitution;-

• 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

Constitution of 1962;-

•  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.
• 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.
• 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.

Constitution of 1973;-

1) Parliamentary System

2) President:

3) Parliament with two houses

4) Federal System

5) Provincial Structure:

6) Principles of Policy:

7) Fundamental Rights:

8) Islamic Provisions:

9) National Language:

10) Judiciary:

11) Rigid

Amendment of constitution;-

I. 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.

II. 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.

III. 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.

IV. 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.

V. 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.

VI. 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.

VII. 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.

Conclusion;-

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.

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.