Masood & Masood (Pakistan Based Law firm)Lawyers / Consultants providing expert legal advice in Pakistan Law from Company registration to Trademark Protection, Banking Law to Family Disputes. Civil Disputes to Criminal cases
In October 1958, President Iskander Mirza staged a coup d’état and abrogated the constitution. Shortly afterwards General Ayub Khan deposed Iskandar and declared himself president. In 1960 Ayub Khan appointed a commission to draft a new constitution. The new Constitution of 1962 was decreed by President Ayub in March of that year. On 25 March 1969 the Second Martial Law was imposed; President Ayub Khan abrogated the 1962 constitution and handed over power to the Army Commander-in-Chief, General Agha Mohammad Yahya Khan.
On assuming the presidency, General Yahya Khan acceded to popular demands by abolishing the one-unit system in West Pakistan and ordered general elections on the principle of one man one vote.
General Yahya’s regime made no attempt to frame a constitution. The expectations were that a new constituent assembly would be set up by holding a free and fair election. In order to hold the proposed elections, President Yahya Khan promulgated a Legal Framework Order on 30 March 1970 that also spelled out the fundamental principles of the proposed constitution and the structure and composition of the national and provincial assemblies.
In December, 1970 elections were held simultaneously for both the national and five provincial assemblies. By any criteria, elections were free and fair. There was no interference from the government; it maintained strict neutrality showing no favor or discrimination for or against any political parties. The members of the ruling council of ministers were debarred from participation in the elections. There were no allegations of rigging of the elections as is often alleged in elections held in the countries of the Third World.
But the results of the first and the last general elections in united Pakistan were simply disastrous from the standpoint of national unity and demonstrated the failure of national integration. There was not a single national party in the country which enjoyed the confidence of the people of Pakistan, both East and West Pakistan. Two regional parties — the Awami League (AL) under the leadership of Sheikh Mujibur Rahman in East Pakistan — won 160 out of 162 seats allotted for East Pakistan. But in West Pakistan it could not secure a single seat and the percentage of votes secured by the Awami League in the four provinces of West Pakistan were: 0.07 (Punjab), 0.07 (Sindh) 0.2 (North-West Frontier Province (NWFP)) and 1.0 (Baluchistan).
The Pakistan Peoples Party (PPP) under the leadership of Zulfikar Ali Bhutto won 88 out of 144 seats for West Pakistan. But the PPP did not even dare to set up a candidate in East Pakistan. The remaining 57 seats of West Pakistan were shared by seven parties and there were fifteen independent candidates. The PPP emerged as the single largest party in West Pakistan with majorities in Sindh and the Punjab; and the National Awami Party (NAP) together with their political ally, Jamiat-ul Ulema-i-Islam (of Maulana Mufti Mahmood) JUI, got clear majorities in Baluchistan and the NWFP. None of the West Pakistani political parties, like the PPP, could win a single seat in East Pakistan. The religious question played little or no part in the elections. There can be no doubt that in East Pakistan the principles which won the consensus of opinion was the single basic notion of autonomy.
The Awami League had fought the elections on the basis of their six points formula, which committed them to restructure the existing federal system in order to ensure maximum political autonomy for East Pakistan. Under this formula, only two portfolios — Ministry of Foreign Affairs and Defence — would be retained by the central government. The PPP, on the other hand, was not willing to dilute the authority of the central government in-spite of assuring full provincial autonomy for all the provinces of Pakistan. The NAP and JUI coalition sided with the AL so that they might obtain maximum autonomy for their own provinces, i.e., Baluchistan and the NWFP.
The election results truly reflected the ugly political reality: the division of the Pakistani electorate along regional lines and political polarization of the country between the two wings, East and West Pakistan. In political terms, therefore, Pakistan as a nation stood divided as a result of the very first general elections in twenty-three years of its existence
Thus the general elections of 1970 produced a new political configuration with three distinct centres of power:(i) the AL in East Pakistan: (ii) the PPP in Sindh and the Punjab; and (iii) the NAP-JUI in Baluchistan and the NWFP. At the top of all this was the fourth centre of power, the armed forces with their spokesman, Yahya Khan
There were two major claimants of power: Sheikh Mujibur Rahman and Zulfikar Ali Bhutto. According to G. W. Chowdhury in his book ‘The Last Days of United Pakistan’, “both (the leaders) flourished on negative appeals to the illiterate voters of Pakistan, one by whipping up regional feeling against Punjabi domination and the other by whipping up militant national feelings against India. Neither had any constructive or positive approach.” Mujib was apparently more interested in creating a separate state for Bengalis, Bangladesh since he had no trust in the ruling elite of West Pakistan.
On the other hand, Bhutto was more interested in getting power, no matter whether in a united or divided Pakistan. In fact he realized that in a united Pakistan, he had little chance of becoming either prime minister or president. According to G. W. Choudhury, “he realized from his discussions with Bhutto before and after the 1970 elections that if he had to make a choice between the two ‘Ps (power or Pakistan), he would choose the former. He was more interested in getting a 21-gun salute as the head of the state than in the maintenance of the unity of Pakistan.”
Negotiations were held between January and March 1971 between the two major regional leaders – Mujib and Bhutto – and the ruling military government under President Yahya Khan. But the tripartite negotiations for an agreed federal or even a confederal constitution was a dismal and total failure. Under the Legal Framework Order, the President was to decide when the Assembly was to meet. Once assembled it was to frame a new constitution within 120 days or stand dissolved. On 13 February 1971, the President announced that the National Assembly was to meet at Dhaka on 3 March. By this time the differences between the main parties to the conflict had already crystallized.
On 22 December 1970 the Secretary of the Awami League, Tajuddin Ahmad, claimed that his party having won an absolute majority had a clear mandate and was quiet competent to frame a constitution and to form a central government on its own. Sheikh Mujibur Rehman declared on 3 January 1971 that his party would not frame a constitution on its own, even though it had a majority. He refused, however, to negotiate on the Six Points, saying that they were now public property and no longer negotiable.
The crux of the conflict was that the majority party in the west, led by Bhutto, was convinced that a federation based on the Six Points would lead to a feeble confederation in name only. At best it would lead to a feeble confederation and at worst it would result in the division of the country into two states. These fears were evidently shared by the military leaders in the west, including President Yahya Khan who had publicly described Sheikh Mujibur Rehman as the ‘future Prime Minister of Pakistan’ on 14 January 1971.
Bhutto announced on 15 February that his party would not attend the National Assembly unless there was ‘some amount of reciprocity’ from the Awami League. Sheikh Mujib replied at a press conference on February 21, asserting that ‘Our stand is absolutely clear. The constitution will be framed on the basis of the Six Points’. He also denied that the Six Points would leave the central government at the mercy of the provinces and contended that they were designed only to safeguard provincial autonomy.
On 28 February 28, Bhutto demanded that either the 120-day limit for the national Assembly be removed or the opening session be postponed, declaring that if it was held on 3 March as planned, there would be a general strike throughout West Pakistan. President Yahya Khan responded next day by postponing the Assembly meeting to 25 March. The postponement of the National Assembly came as a shattering disillusionment to the Awami League and their supporters throughout East Pakistan. It was seen as a betrayal and as proof of the authorities of the West Pakistan to deny them the fruits of their electoral victory. This resulted in the outbreak of violence in East Pakistan. The Awami League launched a non-cooperation movement and virtually they controlled the entire province.
The National Assembly, however, could not even meet on 26 March due to widespread disturbances in East Pakistan where the army moved in on 26 March to control the situation. The civil disobedience movement later developed into a war of national liberation fully backed by the Indian Army. As a result, Pakistani forces had to surrender to the Indian Army, and almost over 93,000 military personnel were taken as prisoners of war on 16 December 1971. Thus ended an important era of the largest Muslim state, Pakistan. A new and smaller Pakistan emerged on 16 December 1971.
Demoralized and finding himself unable to control the situation, General Yahya Khan surrendered power to Bhutto who was sworn-in on 20 December 1971 as President and as the (first civilian) Chief Martial Law Administrator.
 Drafting and enactment
After gaining power, Zulfiqar Ali Bhutto invited the leaders of the parliamentary parties to meet him on 17 October 1972, which resulted in an agreement known as the ‘Constitutional Accord’, after an intensive discussion. As per consultations floated by PPP, the National Assembly of Pakistan appointed a committee, of 25 members, on 17 April 1972, to prepare a draft of the permanent Constitution of Pakistan. Mohammad Ali Kasuri was the elected chairman of the Committee. On 20 October 1972, the draft bill for the Constitution of Pakistan was signed by leaders of all parliamentary groups in the National Assembly. A bill to provide a constitution for the Islamic Republic of Pakistan was introduced in the Assembly on 2 February 1973. The Assembly passed the bill unanimously on 19 April 1973 and endorsed by the acting President Zulfikar Ali Bhutto on 12 April 1973. The Constitution came into effect from 14 August 1973. On the same day, Bhutto took over as the Prime Minister and Choudhary Fazal-e-Elahi as the President of Pakistan.
This constitution represented a compromise consensus on three issues: the role of Islam; the sharing of power between the federal government and the provinces; and the division of responsibilities between the President and the Prime Minister, with a greatly strengthened position for the latter.
The Constitution provided for federal system. The Federal Legislature is to function like the British Parliament. In order to allay fears of the provinces concerning domination of the Centre, the constitution established a bicameral legislature with a Senate (the upper house), providing equal provincial representation, and a National Assembly (the lower house), allocating seats according to population.
Islam has been declared as the state religion. The Constitution named Pakistan as the Islamic Republic of Pakistan. Only a Muslim could become the President or the Prime Minister of Pakistan. No law repugnant to Islam shall be enacted and the present laws shall also be Islamised.
The President must be a Muslim not less than 45 years of age, elected by members of Parliament. He is to hold office for a term of five years. The President could be removed by the resolution of parliament of not less than two-thirds of the total membership. The President could issue ordinances when the Parliament is not in session. The President has the power of granting pardon and the right to be kept informed by the Prime Minister on all matters of internal and foreign policies.
The Constitution sets-forth the parliamentary system of Government. The head of the Government, according to the Constitution, will be the Prime Minister. The Prime Minister and his Cabinet is accountable to the National Assembly for his actions. The Prime Minister would be elected by the majority of the National Assembly.
The Constitution of 1973 introduced a new institution known as the ‘Council of Common Interests’ consisting of Chief Ministers of the provinces and an equal number of Ministers of the Federal Government nominated by the Prime Minister. The Council could formulate and regulate the policy in the Part II of the Legislative List. In case of complaint of interference in water supply by any province the Council would look into the complaint.
Another major innovation in the Constitution of 1973 is the establishment of a National Finance Commission (NFC) consisting of the Federal and Provincial Finance Ministers and other members to advice on distribution of revenues between the federation and the provinces.
The Principals of Policy includes Islamic way of life, promotion of Local Government institutions, full participation of women in national life, protection of minorities, promotion of social and economic well being of the people, and strengthening the bonds with the Muslim world and to work for international peace.
· The name ‘Islamic Republic of Pakistan’ is selected for the state of Pakistan.
· Islam is declared as the state religion of Pakistan.
· Steps shall be taken to enable the Muslims of Pakistan, individually or collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam.
· Steps shall be taken to make the teaching of the Qur’an and Islamiyat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Qur’an.
· Proper organisation of Zakat, waqf and mosques is ensured.
· Only a Muslim could be qualified for election as President (male or female) and Prime Minister (male or female). No restriction as to religion or gender on any other post, up to and including provincial governor and Chief Minister.
· All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Qur’an and Sunnah and no law shall be enacted which is repugnant to such injunctions.
· A Council of Islamic Ideology shall be constituted referred to as the Islamic Council. The functions of the Islamic Council shall be to make recommendations to Parliament and the Provincial Assemblies about the ways and means of enabling and encouraging the Muslims of the Pakistan to order their lives in accordance with the principles of Islam.
· The President or the Governor of a province may, or if two-fifths of its total membership so requires, a House or a Provincial Assembly shall, refer to the Islamic Council for advice on any question as to whether a proposed law is or is not repugnant to the injunctions of Islam.
· For the first time, the Constitution of Pakistan gave definition of a Muslim which states: ‘Muslim’ means a person who believes in the unity and oneness of Allah, in the absolute and unqualified finality of the Prophethood of the Islamic prophet, Muhammad, and does not believe in, or recognise as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad.
· The state shall endeavor to strengthen the bonds of unity among Muslim countries.
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.
 18th Amendment to the Constitution of Pakistan approved as on April 16, 2010
18th Amendment itself includes 105 amendments to the 1973 Constitution. These 105 amendments will effect 70 Articles of the existing Constitutions. There are three “schedules” and one “Annexure” in the draft package.
In particular, the 18th Amendment will undo the impacts of the 8th Amendment (enacted by Gen. Zia ul Haq) which had altered over 90 Articles of the Constitution, and the 17th Amendment (enacted by Gen. Pervez Musharraf) which had altered 26 Articles of the Constitution.
The famed article 58 (2) (b), which had first been inserted into the Constitution by Gen. Zia ul Haq and allows the President to dissolve Parliament, and which was re-enacted by Gen. Pervez Musharraf, has been removed from the Constitution in the draft.
The new name of the NWFP is to be Khyber-Pakhtunkwa. The PML-N which had long held out on this issue has reportedly agreed to this name change, although PML-Q has maintained some reservations to it as has PPP-Sherpao.
On the other controversial issue of the composition of the Judicial Commission, the PML-N proposal of adding a seventh member who is a retired Supreme Court Judge has been accepted.
The draft proposes removal of many past amendments added by military rulers, including the 17th Amendment.
The draft abolishes the “concurrent list” and gives much more provincial autonomy than is now available to the provinces. The Council of Common Interest has been given additional powers and the provinces have been given more say on national matters by enhancing their representation in the council.
Reportedly the draft “purges” the name of gen. Zia-ul-Haq as President from the Constitution (it is not yet clear what this means in practice).
The next step in the process is for the draft to be now presented to the National Assembly after which the Government is expected to move the 18th Amendment for Parliamentary approval. It is expected that the draft will be tabled in Parliament within the next couple of days.
The committee which worked on this draft for nine months includes representatives from all the political groups having representation in the two houses of parliament. It included: Raja Pervaiz Ashraf, Maulana Fazlur Rahman, Ghulam Murtaza Jatoi, Syed Naveed Qamar, Babar Awan, Haji Lashkari Raisani, Ishaq Dar, Sardar Mehtab Ahmed Khan Abbasi, Wasim Sajjad, S M Zafar, Humayun Saifullah, Farooq Sattar, Haider Abbass Rizvi, Ahsan Iqbal, Afrasyab Khattak, Haji Muhammad Adeel, RehmatUallah Kakar, Abdul Razaq Taheem, Mir Israr Ullah Zehri, Professor Khursheed Ahmed, Hasil Bizenjo, Aftab Ahmed Khan Sherpao, Abdul Rahim Mandokhel, Shahid Bugti, Munir Khan Orakzai, and Mian Raza Rabbani.
The original Constitution was passed in the first PPP government, which has also been the architect of the first amendments to it.
Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
And whereas it is the will of the people of Pakistan to establish an order :-
Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;
Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
Therein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;
Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
Wherein the independence of the judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity :
Now, therefore, we, the people of Pakistan,
Cognisant of our responsibility before Almighty Allah and men;
Cognisant of the sacrifices made by the people in the cause of Pakistan;
Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah], that Pakistan would be a democratic State based on Islamic principles of social justice;
Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;
Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;
Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.
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