Constitutional Developments in Pakistan: 1947 to 1973 and Subsequent Amendments

Foundations and Fundamental Dilemmas of Constitution-Making

• Constitutional Instability in Pakistan:

  • Framing and preserving a constitutional order in Pakistan has presented persistent historical difficulties, evidenced by the enactment of three separate constitutions in 1956, 1962, and 1973.
  • Pakistan's constitutional evolution encompasses preparatory governing instruments prior to 1956 and an extensive sequence of constitutional amendments enacted after 1973.
  • The necessity of adopting multiple constitutions and numerous amendments reflects chronic structural and political instability.

• Core Definitions of a Constitution:

  • In the historical context of British India, a constitution is defined as the set of rules according to which a people agree to live with each other.
  • The Oxford English Dictionary defines a constitution as embodying "the fundamental principles by which a state is governed."
  • A constitution operates as the foundational supreme law from which all secondary statutes and administrative regulations derive.

• The Two Contentious Impasses:

  • Consensus in Pakistan's constitution-making remained elusive primarily due to persistent polarization surrounding two distinct questions:
  • The precise role and jurisdiction of religion within the structures of the state.
  • The quantum of autonomy, legislative power, and administrative independence to be devolved to the provinces.

Early Constitutional Governance and the Interim Arrangement (1947–1948)

• Dominion Framework:

  • Pakistan gained independence on 14 August 1947 as a Dominion within the British Commonwealth of Nations.
  • Initial governance was established through two foundational statutes:
  • The Indian Independence Act 1947.
  • The Government of India Act 1935 (GOI Act 1935), which functioned as the country's interim constitution.

• The Office of Governor General:

  • Quaid-i-Azam Mohammad Ali Jinnah departed from standard Westminster parliamentary conventions by assuming the office of Governor General rather than that of Prime Minister, who serves as the chief executive in a parliamentary system.
  • Jinnah assumed the office to pre-empt the appointment of Lord Louis Mountbatten, who sought to serve as joint Governor General of both India and Pakistan with the intention of undoing the Partition.

• Legal Authorities and the Interim Constitution:

  • The original GOI Act 1935 granted wide discretionary powers to the Viceroy/Governor General; however, the British Parliament rescinded these discretionary provisions prior to the transfer of power.
  • Under Section 8(2), Provision C of the Indian Independence Act 1947, the Governor General was explicitly precluded from exercising personal discretion or individual judgment, making it mandatory to act solely upon the advice of the Prime Minister.
  • In parallel, the Dominion was administered under the Provisional Constitution Order 1947.
  • Under Section 9(1) of the Indian Independence Act 1947, plenary power to amend the interim constitution was vested personally in the Governor General until 1949, after which the Constituent Assembly was to inherit that power.

• Modification of the Oath of Office:

  • Operating prior to 1949, Jinnah exercised his statutory power under Section 9(1) to alter the interim constitution.
  • His primary legal enactment amended the prescribed oath of office for the Governor General: the text originally required the officeholder to swear "true faith and allegiance to His Majesty (the King of England)," which Jinnah replaced with an oath to "bear true allegiance to the Constitution."

• Executive Power Dynamics at the Centre:

  • Following his modified oath, Jinnah operated as the effective Chief Executive of Pakistan.
  • On 30 December 1947, the Federal Cabinet formalized this structure by resolving that no matter of state policy or principle could be determined unless the Cabinet meeting was presided over by the Governor General.
  • This concentration of authority was personal to Jinnah's historical stature and pre-independence relationship with Prime Minister Liaquat Ali Khan.
  • Following Jinnah's death in September 1948, Liaquat Ali Khan assumed effective chief executive powers as Prime Minister, surpassing the new Governor General, Khwaja Nazimuddin, in political authority due to his prominence in the Pakistan Movement.
  • This early structural shifting of executive authority between the Governor General and Prime Minister established a precedent that weakened subsequent parliamentary conventions.

The Role of Religion and Jinnah's Ideological Declarations

• The Religious–Secular Ideological Divide:

  • The debate over whether Pakistan should exist as a secular democracy or an Islamic state has led advocates of both perspectives to cite specific declarations made by Quaid-i-Azam Mohammad Ali Jinnah.

• Key Verbatim Declarations by Jinnah:

  • Sibi Durbar Speech (14 February 1947/1948): "Let us lay down the foundations of our democracy on the study of truly Islamic ideals and principles."
  • Presidential Address to the Constituent Assembly of Pakistan (11 August 1947): "You are free to go to your temples, you are free to go to your mosques or to any other place of worship in this State of Pakistan. You may belong to any religion, caste or creed that has nothing to do with the business of the State… we are starting with this fundamental principle that we are all citizens and equal citizens of one State."
  • Radio Broadcast to the United States of America (February 1948): "The constitution of Pakistan has yet to be framed by the Pakistan Constituent Assembly. I do not know what the ultimate shape of this constitution is going to be but I am sure that it will be a democratic type, embodying the essential principles of Islam… In any case, Pakistan is not going to be a theocratic state—to be ruled by priests with a divine mission. We have many non-Muslims—they will enjoy the same rights and privileges as any other citizens."

• Reconciliation of Principles:

  • Advocates of an Islamic state typically cite the Sibi Durbar declaration, while secularists focus on the 11 August 1947 address.
  • The February 1948 broadcast reconciles these perspectives by rejecting theocracy while affirming Islamic democratic ethics:
  • Liberty, equality, and fraternity were viewed by Jinnah as authentic Islamic values, rendering true Islam and democracy conceptually identical.
  • Theocracy, defined strictly as rule by an ordained clergy claiming divine authority, is fundamentally incompatible with democracy and alien to Islam, which contains no formal priesthood.
  • The resulting constitutional balance sought a secular state apparatus informed by ethical Islamic norms representing the Muslim majority, while preserving civic rights.
  • Jinnah emphasized that the final constitution had to be determined by the collective will of the Constituent Assembly, rather than imposed by any single individual.

The Status and Contributions of Minorities

• Protection Against Internal Disintegration:

  • Historical analysis demonstrated that sectarian conflict and communal discrimination against minorities had caused India's earlier subjugation and internal disintegration.
  • Maintaining national unity required strict protections for minorities and the suppression of caste and sectarian discord among both Muslims and Hindus.

• Pivotal Contributions of Non-Muslim Leaders:

  • Jogendra Nath Mandal: A prominent scheduled-caste Hindu leader who was selected to preside over the inaugural session of the Pakistan Constituent Assembly.
  • S.P. Singha: The Christian Speaker of the Punjab Legislative Assembly whose decisive casting vote ensured the province of Punjab's accession to Pakistan.
  • Kiran Shankar Roy: Co-author alongside H.S. Suhrawardy of the united, independent Bengal scheme. Roy took up permanent residence in Pakistan and delivered major speeches championing the state in the Constituent Assembly (whereas Suhrawardy was initially denied his Assembly seat for failing to establish immediate permanent residence).
  • The Parsi Community: Played an extensive role in the commercial, civic, philanthropic, and educational development of Pakistan.

The Religious Movement and the Objectives Resolution of 1949

• The Campaign by Jama'at-i-Islami:

  • Maulana Abul Ala Maududi (1902–1979), founder of the Jama'at-i-Islami (who had initially opposed the creation of Pakistan), launched a nationwide public campaign demanding that Pakistan be formally constituted as an Islamic state.
  • Maududi articulated four core constitutional principles:
  1. Sovereignty over Pakistan belongs solely to Allah, and the Government of Pakistan has no legal authority other than to enforce the divine will of Allah.
  2. The basic and supreme law of Pakistan must be the Islamic Shariah.
  3. All existing statutes repugnant to the Shariah must be immediately revoked, and no un-Islamic laws may be enacted in the future.
  4. The State of Pakistan must exercise its executive, legislative, and judicial powers strictly within the limits prescribed by the Shariah.

• Jurisprudential Challenges of Implementing Shariah:

  • Practical application of the Shariah faced structural complexities due to the coexistence of four distinct sunni schools of jurisprudence (fiqh): Hanafi, Maliki, Shafi'i, and Hanbali.
  • A statutory rule prescribed by one school could be proscribed by another. For example, Hanafi jurisprudence does not make the consent of a male guardian (wali) mandatory for an adult bride, whereas other schools mandate it.
  • Certain customary practices, such as honor killings, operate outside and contrary to the limits of the Shariah.

• Adoption of the Objectives Resolution:

  • To reconcile conservative demands with democratic constitutionalism, Prime Minister Liaquat Ali Khan tabled the Objectives Resolution before the Constituent Assembly.
  • Adopted on 12 March 1949, the Objectives Resolution became the preamble to the Constitutions of 1956, 1962, and 1973, establishing itself as the most resilient document in Pakistan's constitutional history.

• Verbatim Provisions of the Objectives Resolution:

  1. Whereas sovereignty over the entire Universe belongs to Allah Almighty alone, and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust;
  2. This Constituent Assembly representing the people of Pakistan resolves to frame a constitution of the sovereign independent state of Pakistan; wherein the state shall exercise its power and authority through the chosen representatives of the people;
  3. Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
  4. Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teaching and requirements of Islam as set out in the Holy Quran and the Sunnah;
  5. Wherein adequate provisions shall be made for the minorities to freely profess and practice their religions and develop their cultures;
  6. Whereby the territories now included in or accession with Pakistan and such 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 limitation on their powers and authority as may be prescribed;
  7. Wherein shall be guaranteed fundamental rights including equality of status, of opportunity before law, social economic and political justice and freedom of thought, expression, belief, faith, worship and association subject to law and public morality;
  8. Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
  9. Wherein the independence of judiciary shall be fully secured;
  10. 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;
  11. 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.

• Key Departures from the Jama'at-i-Islami Demands:

  • Point 1: Sovereignty was delegated by Allah to the people of Pakistan, establishing a democratic foundation rather than a clerical monopoly.
  • Point 3: Explicitly incorporated the principle of "tolerance" alongside democracy, freedom, equality, and social justice.
  • Point 4: Mandated that Muslims be "enabled" rather than compelled to conform to Islamic teachings, aligning with Surah Al-Baqarah, verse 256 of the Quran: "There is no compulsion in religion."
  • Points 5, 7, and 8: Explicitly guaranteed minority rights, fundamental human liberties, and safeguards for depressed classes, none of which featured in the original Jama'at-i-Islami petition.

• Political Repercussions and State Response:

  • The Jama'at-i-Islami rejected the Sibi Durbar declaration and the Objectives Resolution as insufficient, opposing equal civic rights for non-Muslims and advocating separate electorates.
  • On 4 October 1948, Maulana Maududi was arrested under the Safety Act.
  • Established ulema who had supported the Pakistan Movement, including Allama Shabbir Ahmad Usmani and Umar Hyat Khan, allied with conservative religious elements, exerting pressure on the state regarding the federal distribution of power.

The Basic Principles Committee and the Pre-1956 Deadlocks

• The Demographic and Provincial Dilemma:

  • East Pakistan possessed a population larger than all the provinces and princely states of West Pakistan combined.
  • Under pure democratic representation, East Bengal would secure a permanent legislative majority, an outcome politicians from West Pakistan actively resisted.
  • West Pakistani political figures argued that East Bengal's numerical majority was due to its large Hindu minority; reducing minority franchise was thus seen as a way to achieve electoral parity between the Muslim populations of both wings.

• Interim Report of the Basic Principles Committee (7 September 1950):

  • Formed by the Constituent Assembly, the Basic Principles Committee consisted of $25$ members and was chaired by Maulvi Tamizuddin Khan.
  • Key Provisions:
  • Head of state indirectly elected by the legislature, who could potentially be a non-Muslim.
  • sweeping emergency powers modeled on the GOI Act 1935, authorizing the head of state to suspend the constitution and take over provincial administrations.
  • Absolute legal indemnity: the Governor General, Prime Minister, and sitting legislators were exempted from appearing before courts of law.
  • Federal structure with a bicameral legislature: a directly elected lower house and an indirectly elected upper house granting equal representation to all provinces.
  • Designated Urdu as the sole national language.
  • Public and Political Backlash:
  • Ulema objected to legal indemnities, citing the precedent of the Pious Caliphs who personally appeared before judicial courts when summoned.
  • Religious groups opposed the eligibility of non-Muslims for the office of head of state.
  • East Bengal opposed the language provision and recognized that equal provincial representation in the upper house would neutralize its demographic majority in the lower house.

• Final Report of the Basic Principles Committee (July 1952):

  • Presented under Prime Minister Khwaja Nazimuddin, the report introduced parity of representation between the East and West wings in the federal legislature.
  • Dropped all references to Urdu as the sole national language, leaving the national language unstated.
  • Introduced a Board of Ulema at both federal and provincial tiers with the power to vet legislation to ensure conformity with Islamic law; however, conservative ulema rejected the measure because board members were to be appointed via government nomination.
  • Faced with mounting political discord, Khwaja Nazimuddin unilaterally withdrew the report on 21 January 1953 without informing the Assembly's President, Maulvi Tamizuddin Khan.
  • On 17 April 1953, Governor General Ghulam Mohammad dismissed Prime Minister Khwaja Nazimuddin, initiating a deeper constitutional crisis.

• The 1954 Draft Constitution and the Mohammad Ali Bogra Formula:

  • Mohammad Ali Bogra, an East Bengali diplomat appointed Prime Minister to replace Nazimuddin, introduced a compromise representation plan known as the Mohammad Ali Formula.
  • Legislative Structure under the Bogra Formula:
  • Bicameral federal legislature.
  • Upper House: $50$ total seats, distributed equally with $10$ seats for each of the five administrative units (East Bengal, Punjab, NWFP, Sindh, and Balochistan).
  • Lower House: $300$ total seats, with $165$ allocated to East Bengal and $135$ divided among the four western provinces.
  • Joint Sessions: In combined legislative votes, each wing held an equal balance of $175$ seats (East Bengal: $10 + 165 = 175$; West Pakistan units combined: $40 + 135 = 175$).
  • Developments and Language Settlement:
  • On 7 May 1954, Bogra successfully moved a resolution in the Constituent Assembly recognizing Bengali alongside Urdu as an official national language.
  • The Constituent Assembly recessed on 14 November 1953, during which the ruling Muslim League was heavily defeated in the East Bengal provincial elections by the United Front, raising questions about the Assembly's representative legitimacy.

• Dissolution of the First Constituent Assembly (24 October 1954):

  • Governor General Ghulam Mohammad opposed the Bogra Formula out of concern that smaller western provinces (NWFP or Balochistan) might form legislative coalitions with East Bengal at the expense of Punjab.
  • Ghulam Mohammad formulated the "One Unit" scheme to merge the four western provinces into a single political entity.
  • Sensing executive intervention, the Constituent Assembly moved to strip the Governor General of his powers:
  • 20 September 1954: Repealed the Public and Representative Offices (Disqualification) Act (PRODA), an instrument used by the Governor General to disqualify politicians.
  • 21 September 1954: Enacted legislation establishing that the Prime Minister served at the confidence of the Assembly rather than at the pleasure of the Governor General, barring the executive from dismissing ministries or dissolving assemblies.
  • In response, Governor General Ghulam Mohammad dissolved the Constituent Assembly on 24 October 1954 just as constitutional drafting reached completion.

The Constitution of 1956

• Establishment and Transition:

  • Major General Iskander Mirza assumed the office of Acting Governor General in August 1955 following Ghulam Mohammad's severe illness, with his appointment confirmed after Ghulam Mohammad resigned on 6 October 1955.
  • Mirza invited Chaudhry Muhammad Ali to establish a coalition government composed of the Muslim League and the East Pakistani United Front.
  • The second Constituent Assembly passed the West Pakistan Act on 30 September 1955, officially merging Punjab, Sindh, North-West Frontier Province (NWFP), and Balochistan into "One Unit."
  • The Assembly divided into six working committees, conducting deliberations across six months, and promulgated the Constitution of the Islamic Republic of Pakistan on 23 March 1956.

• Ten Salient Features of the 1956 Constitution:

  1. Islamic Provisions: Formally designated the state as the "Islamic Republic of Pakistan." Reserved the office of Head of State exclusively for a Muslim. Enacted a repugnancy clause stating that no law contrary to the Holy Quran and Sunnah could be passed, with existing statutes to be brought into conformity with Islamic injunctions.
  2. Federal Structure and Parity: Established a federal system based on parity between the two wings (East Pakistan and the integrated province of West Pakistan). The central legislature was modeled after the British Parliament, retaining unilateral central intervention in provincial emergencies.
  3. Provincial Autonomy Reallocations: Under the political leverage of the United Front, legislative subjects were heavily transferred to the provincial list at the expense of the federal and concurrent lists:
  • Federal List: Reduced from $59$ subjects pre-1956 to $30$ subjects post-1956.
  • Concurrent List: Reduced from $36$ subjects pre-1956 to $19$ subjects post-1956.
  • Provincial List: Expanded from $54$ subjects pre-1956 to $90$ subjects post-1956 (transferring mineral resources, public service recruitment, industrial planning, internal communications, and NWFP tribal administration).
  1. Unicameral Legislature: Abandoned bicameralism in favor of a single chamber of $300$ members divided evenly: $150$ seats for East Pakistan and $150$ seats for West Pakistan. This parity structure set aside the "one man, one vote" democratic principle, fostering inter-regional polarization.
  2. Electorates: Left the question of joint versus separate electorates open, delegating the decision to the respective provincial assemblies.
  3. The Presidency: The President had to be a Muslim male, at least $40$ years of age, and qualified for election to the National Assembly. Election was conducted indirectly via an electoral college consisting of the National Assembly and both Provincial Assemblies for a five-year term, with a limit of two consecutive terms.
  4. Executive Powers of the President: Retained authority to summon, prorogue, and dissolve the National Assembly on the advice of the Cabinet. Held veto authority over legislation (overrideable by a $\frac{2}{3}$ majority of the National Assembly). Retained power to issue ordinances during legislative recesses, require prior consent for money bills, and proclaim states of emergency suspending basic constitutional rights. Appointed the Chief Justice, superior court judges, Provincial Governors, the Advocate General, and principal armed forces commanders on Cabinet advice.
  5. Fundamental Rights: Guaranteed civil liberties, including freedom of speech, assembly, association, movement, trade, and property rights; however, these protections were qualified by the clause "subject to any reasonable restrictions imposed by law." An independent judiciary had jurisdiction to evaluate statutory compliance and invalidate conflicting legislation.
  6. Judicial Independence: Secured institutional independence for superior court judges to ensure impartial administration of justice.
  7. National Languages: Formally designated both Urdu and Bengali as official national languages.

• Critical Structural Drawbacks:

  • Parochialism via Parity: Institutional parity structured politics around two competing geographic blocs rather than nation-wide party affiliations.
  • Distorted Federalism: Radical reduction of the central list ran counter to standard federal conventions aimed at nation-building through a strong central authority.
  • Executive Dominance and Political Destabilization:
  • Major General Iskander Mirza transitioned from Governor General to become Pakistan's first President.
  • Mirza exploited inter-wing party divisions, encouraging the conversion of Muslim League legislators in West Pakistan into the newly created Republican Party under Dr. Khan Sahib.
  • This executive intervention forced Prime Minister Chaudhry Muhammad Ali's resignation on 12 September 1956 after losing his party base.
  • Rapid ministerial turnover followed: H.S. Suhrawardy held the prime ministership for only $13$ months before losing Republican support, followed in rapid succession by I.I. Chundrigar and Malik Feroz Khan Noon.

The Martial Law Regime of 1958 and the Constitution of 1962

• The Military Coup of October 1958:

  • At midnight between 7 and 8 October 1958, President Iskander Mirza proclaimed nationwide Martial Law, abrogated the 1956 Constitution, dismissed the central and provincial assemblies, and appointed Commander-in-Chief General Muhammad Ayub Khan as Chief Martial Law Administrator (CMLA).
  • When Mirza attempted to retain executive supremacy by ordering General Musa to arrest General Ayub Khan, senior military commanders intervened.
  • Nineteen days after the initial coup, on 27 October 1958, Mirza was forced to resign the presidency and sent into foreign exile, leaving General Ayub Khan as the sole head of government.
  • Ayub Khan banned all political parties, froze their bank accounts, and enacted the Press and Publications Ordinance 1960 to suppress public dissent.

• The Shahabuddin Constitution Commission (1960–1961):

  • On 17 February 1960, Ayub Khan appointed an eleven-member Constitution Commission headed by former Chief Justice Muhammad Shahabuddin ($5$ members from East Pakistan, $5$ from West Pakistan, including retired judges, lawyers, an industrialist, and a landed proprietor).
  • The Commission circulated questionnaires and interviewed citizens across public life.
  • Published in May 1961, the Commission's report recommended: a presidential system, universal direct adult franchise, the restoration of political parties, and a strong parliament, rejecting the Basic Democracies system as an electoral mechanism.
  • Ayub Khan set aside the Commission's core recommendations, retaining a strong presidency while rejecting a strong parliament, and promulgated his own constitutional design on 1 March 1962.

• Eleven Salient Features of the 1962 Constitution:

  1. Nomenclature and Islamic Provisions: The state was initially titled the "Republic of Pakistan," omitting the word "Islamic." The omission sparked public controversy, prompting the First Constitutional Amendment in December 1963 to reinstate the title "Islamic Republic of Pakistan." Head of state required to be a Muslim; sovereignty recognized as belonging to Allah as a sacred trust; no laws permitted contrary to the Quran and Sunnah.
  2. Presidential System: Abolished the office of Prime Minister, concentrating all executive and administrative authority in the President as both Head of State and Chief Executive. The minimum age for the presidency was lowered from $40$ to $35$ years.
  3. Basic Democracies Electoral College: Direct universal suffrage was eliminated for national and provincial elections. Elections were mediated by an electoral college of $80,000$ "Basic Democrats" ($40,000$ in East Pakistan and $40,000$ in West Pakistan), who were directly elected in four local government tiers.
  4. Screening of Presidential Candidates: If the number of presidential nominees exceeded three, the Speaker of the National Assembly convened a joint session of the National and Provincial Assemblies to select three candidates. If the sitting President sought re-election, he was automatically exempt from screening, bringing the candidate total to four.
  5. Powers of the President: Five-year term. Appointed and dismissed Cabinet Ministers, Provincial Governors, and superior judges without legislative confirmation. Held power to promulgate ordinances, issue emergency proclamations, and veto legislation (which required a $\frac{2}{3}$ majority of the National Assembly to override, subject to the President referring disputed bills to the Basic Democracies electoral college for final judgment). The President could not dissolve the Assembly without forfeiting his own office.
  6. Impeachment Procedures: A notice of impeachment required signatures from $\frac{1}{3}$ of the National Assembly membership; removal required a $\frac{3}{4}$ affirmative vote. If the impeachment resolution failed to secure the votes of at least $\frac{1}{2}$ of the total Assembly membership, the original signatories automatically lost their seats in the legislature.
  7. Restrictions on the President: Prohibited from holding any state office of profit, though permitted to manage private property.
  8. Office of the Speaker: Imposed no religious restrictions on the Speaker of the National Assembly. If the President resigned, was incapacitated, or was removed, the Speaker became Acting President, opening the legal possibility for a non-Muslim to act as head of state.
  9. Legislative Structure: Unicameral National Assembly and Provincial Assemblies elected for five-year terms by the Basic Democrats. The central legislature had authority over central subjects and could legislate on provincial matters, possessing exclusive power to impose taxes.
  10. Proclamation of Emergency: Authorized the executive to suspend fundamental rights and issue emergency ordinances when security or economic life was threatened by war, foreign aggression, or internal disturbances beyond provincial control.
  11. Languages and Courts: Retained Urdu and Bengali as joint national languages. Judicial authority was limited to interpreting statutes and executive orders in accordance with the written text.

• Opposition and Collapse of the 1962 Framework:

  • The personal nature of the constitution—which opened with the words "I, Field Marshal Muhammad Ayub Khan" rather than an invocation of the people's sovereignty—drew criticism, captured in the verses of poet Habib Jalib: "Such a constitution, / A dawn without grace, / I don't confess, / I don't conceive."
  • 1964–1965 Presidential Election: The Combined Opposition Parties (COP) nominated Fatima Jinnah on a platform demanding the restoration of direct adult franchise and parliamentary democracy; Ayub retained power following elections shaped by administrative patronage.
  • The Six-Point Movement (1966): Following the September 1965 War with India, East Pakistan experienced acute vulnerability. Sheikh Mujibur Rahman advanced the Awami League's Six Points, demanding a confederal restructuring:
  • Federal government restricted strictly to foreign affairs and defense.
  • Two separate, freely convertible currencies or separate fiscal policies.
  • Distinct foreign exchange accounts and independent foreign trade management for each wing.
  • Prohibition of central tax collection; the federal government was to receive revenue requisitions from the federating units.
  • Constitutional authority for provinces to maintain their own militia or paramilitary units.
  • Resignation of Ayub Khan: A popular mass movement led by the Pakistan Peoples Party (PPP) in West Pakistan and the Awami League in East Pakistan forced Ayub Khan's resignation on 25 March 1969. In violation of his own 1962 Constitution—which mandated transferring authority to the Speaker of the National Assembly—Ayub handed power to Army Commander-in-Chief General Agha Muhammad Yahya Khan.

General Yahya Khan, the Legal Framework Order, and the 1970 Elections

• Abrogation of the 1962 System:

  • General Yahya Khan assumed the offices of President and CMLA, abrogated the 1962 Constitution, and dissolved the central and provincial assemblies.
  • On 30 March 1970, Yahya issued the West Pakistan Province (Dissolution) Order 1970, abolishing One Unit and restoring the four historic provinces of Punjab, Sindh, NWFP, and Balochistan.

• The Legal Framework Order (LFO) of 30 March 1970:

  • The LFO established core parameters for the future constitution to be drafted by an elected assembly:
  1. A federal, parliamentary form of government.
  2. Preservation of the Islamic character and foundational ideology of the state.
  3. Periodic, direct general elections based on universal adult franchise and demographic population distribution.
  4. Enforceable fundamental human rights.
  5. An independent judiciary.

• The General Elections of December 1970:

  • Scheduled for October 1970, voting was delayed to 7 December 1970 due to catastrophic flooding in East Pakistan.
  • The elections were contested by $22$ political parties across both wings.
  • Complete Party Position in the National Assembly (300 General Seats):

• The Secession Crisis:
  • The election generated a structural deadlock between three actors: General Yahya Khan (insisting on the central principles of the LFO), Sheikh Mujibur Rahman (mandated on the Six Points), and Zulfikar Ali Bhutto (insisting on constitutional consensus among all federating units).
  • Political breakdown, military intervention, and the Indo-Pakistan War of December 1971 led to the secession of East Pakistan as Bangladesh.
  • On 20 December 1971, General Yahya Khan resigned and transferred the offices of President and Chief Martial Law Administrator to Zulfikar Ali Bhutto.

Theoretical Underpinnings: The Nature and Purpose of a Federation

• Constitutional Definition of Federalism:
  • Analysis of whether the Awami League's Six Points were truly federal or confederal turned on the origins of modern federalism.
  • Federalism originated with the thirteen American states uniting for collective security, balancing regional autonomy with central authority.
  • Alexander Hamilton, writing in The Federalist Papers No. 27 on 18 December 1787, articulated the foundational purposes of a federal union:
  • "The principal purposes to be answered by Union are these—the common defence of the members—the preservation of the public peace as well against internal convulsions as external attacks—the regulation of commerce with other nations and between the States—the superintendence of our intercourse, political and commercial, with foreign countries."
  • The Six Points deviated from these federal norms by denying central taxation, splitting trade management, and dividing currencies, creating a confederal arrangement that weakened central cohesion.

The Constitution of 1973

• Interim Phase and the Constitutional Accord:

  • An Interim Constitution was enacted on 17 April 1972, taking effect on 21 April 1972, which maintained a presidential structure.
  • Law Minister Mian Mahmud Ali Kasuri resigned due to internal disagreements over Bhutto's reported preference for a permanent presidential system.
  • The National Assembly functioned concurrently as the Constituent Assembly. On 17 April 1972, it appointed a $25$-member constitutional drafting committee.
  • On 20 October 1972, leaders across all parliamentary groups—including Khan Abdul Wali Khan of the National Awami Party (NAP)—signed the Constitutional Accord.
  • Despite subsequent political disputes (such as the dismissal of the NAP-JUI provincial ministry in Balochistan and the protest resignation of the NWFP cabinet), Bhutto retained multi-party support for the final draft.
  • Introduced on 2 February 1973, the Constitution Bill was passed unanimously by the National Assembly on 10 April 1973, received presidential endorsement on 12 April 1973, and was promulgated on Independence Day, 14 August 1973.
  • Zulfikar Ali Bhutto stepped down from the presidency to become Prime Minister, while National Assembly Speaker Chaudhry Fazal-e-Elahi assumed the presidency.

• Salient Features of the 1973 Constitution:

  • Islamic Provisions and State Religion: Named the country the "Islamic Republic of Pakistan." For the first time, Islam was declared the official State Religion. Both the President and the Prime Minister were required to be Muslims. Mandated that all existing laws conform to the Holy Quran and Sunnah.
  • Executive Structure: Established a parliamentary democracy with executive authority concentrated in the Prime Minister as Chief Executive. The Prime Minister is elected by an absolute majority of the National Assembly and holds office until a successor takes the oath.
  • Constructive Vote of No-Confidence: To prevent ministerial instability, any no-confidence resolution brought against a sitting Prime Minister was required to explicitly name a designated successor, ensuring government continuity.
  • The Presidency: The President had to be a Muslim, at least $45$ years of age, elected by members of Parliament (and later provincial assemblies) for a five-year term. The President was bound to act strictly on the advice of the Prime Minister, with presidential orders requiring the Prime Minister's countersignature for legal validity. The President retained pardon powers and could be impeached by a $\frac{2}{3}$ majority of Parliament.
  • Bicameral Legislature:
  • National Assembly (Lower House): Directly elected on universal adult franchise for a five-year term, initially comprising $200$ members.
  • Senate (Upper House): A permanent chamber not subject to dissolution, consisting initially of $63$ members indirectly elected for four-year terms (with half the membership retiring every two years). Composed of $14$ members elected by each of the four provincial assemblies, $5$ elected from the Federally Administered Tribal Areas (FATA), and $2$ from the Federal Capital Territory.
  • Provincial Administration: Provincial Governors were appointed by the federal government, while provincial executive authority was exercised by a Chief Minister elected by and responsible to the Provincial Assembly.
  • Inter-Provincial Bodies:
  • Council of Common Interests (CCI): Composed of the four Provincial Chief Ministers and an equal number of federal ministers nominated by the Prime Minister. Exercised policymaking authority over Part II of the Federal Legislative List and resolved inter-provincial disputes over water sharing.
  • National Finance Commission (NFC): Comprising federal and provincial finance ministers and technical experts, tasked with periodically determining the distribution of tax revenues between the federation and the provinces.
  • Judicial Supremacy and Treason Safeguard: Confirmed fundamental rights and judicial independence. Subversion of the constitution was formally classified as an act of high treason to deter future unconstitutional interruptions.

Amendments to the 1973 Constitution

• Amendments Under Zulfikar Ali Bhutto (First Seven Amendments):

  • 1st Amendment (1974): Empowered the federal government to ban any political party determined to be operating in a manner prejudicial to the sovereignty or integrity of Pakistan, subject to confirmation by the Supreme Court (utilized by Bhutto to ban the National Awami Party).
  • 2nd Amendment (September 1974): Formally classified Ahmadis as non-Muslims under the law.
  • 3rd Amendment (1975): Weakened safeguards against preventive detention and extended emergency proclamation periods suspending fundamental rights.
  • 4th Amendment (November 1975): Curtailed High Court writ jurisdiction regarding preventive arrest, preventative detention, and the granting of bail.
  • 5th Amendment (1976): Restricted the jurisdiction of superior courts, established fixed tenures for Chief Justices, and permitted the non-consensual temporary transfer of High Court judges to another province for up to one year.
  • 6th Amendment (1976): Regulated the retirement age and tenure continuity of superior court Chief Justices.
  • 7th Amendment (1977): Provided a constitutional mechanism for the Prime Minister to call a national referendum, designed to resolve political unrest following allegations of vote-rigging in the March 1977 general elections (though Bhutto was unable to implement it before being ousted).

• Subsequent Amendments (Eighth through Sixteenth):

  • 8th Amendment (1985): Enacted by General Muhammad Ziaul Haq as a prerequisite for lifting Martial Law:
  • Altered the parliamentary character of the constitution by introducing Article $58(2)\text{B}$, authorizing the President to unilaterally dismiss the Prime Minister and dissolve the National Assembly.
  • Expanded the Senate from $63$ to $87$ seats, reserving five seats per province for ulema, technocrats, and professionals.
  • Increased reserved women's seats in the National Assembly from $10$ to $20$.
  • Established the Federal Shariat Court to examine whether any statute or executive policy contravened Islamic injunctions.
  • Article $58(2)\text{B}$ was invoked by Ziaul Haq once (dismissing Muhammad Khan Junejo in 1988), by Ghulam Ishaq Khan twice (dismissing Benazir Bhutto in 1990 and Nawaz Sharif in 1993), and by Farooq Leghari once (dismissing Benazir Bhutto in 1996).
  • 9th Amendment (1985–1986): Sought to establish the Quran and Sunnah as the supreme law of the land; passed the Senate but lapsed following the dismissal of Junejo's assembly in 1988.
  • 10th Amendment (1987): Mandated that the interval between consecutive sessions of the National Assembly or Senate must not exceed $130$ days.
  • 11th Amendment (1989): Proposed restructuring reserved seats for women in the National Assembly; lapsed without formal legislative passage.
  • 12th Amendment (1991): Authorized the establishment of Special Speedy Trial Courts for heinous crimes.
  • 13th Amendment (1997): Enacted under Nawaz Sharif's PML (N) administration:
  • Repealed Article $58(2)\text{B}$, ending presidential powers to dismiss prime ministers and dissolve the lower house.
  • Removed discretionary gubernatorial powers to dissolve provincial assemblies.
  • Made presidential appointments of service chiefs and superior court judges subject to the advice of the Prime Minister.
  • 14th Amendment (1997): Inserted anti-defection provisions into Article 63A to prevent parliamentary floor-crossing and "horse-trading."
  • 15th Amendment (1998): Known as the Shariah Bill, aimed at establishing Quran and Sunnah as supreme law; passed the National Assembly on 9 October 1999 but was abandoned in the Senate due to opposition from religious and regional parties.
  • 16th Amendment (1999): Amended Article 27 to extend the regional civil service quota system for an additional $40$ years starting from August 1993.

• The Seventeenth Amendment and the Musharraf Era:

  • Military Takeover and Judicial Validation:
  • General Pervez Musharraf overthrew the elected government on 12 October 1999, assuming the title of Chief Executive.
  • On 12 May 2000, in the Zafar Ali Shah case, the Supreme Court retrospectively validated the coup under the doctrine of state necessity, granting Musharraf a three-year period and executive authority to amend the constitution.
  • Musharraf assumed the office of President on 20 June 2001 and held a national referendum to validate his position.
  • The Legal Framework Order (LFO) of 21 August 2002:
  • Lowered the national voting age from $21$ to $18$ years.
  • Expanded the National Assembly from $217$ to $342$ seats and the Senate from $87$ to $100$ seats.
  • Increased reserved seats for women and introduced a mandatory graduation degree requirement for assembly candidates.
  • Abolished separate electorates, restoring joint electorates for religious minorities.
  • Reinstated Article $58(2)\text{B}$, shifting executive authority back toward a presidential orientation.
  • Enactment of the 17th Amendment (29 December 2003):
  • Passed following negotiations between the ruling coalition and the Muttahida Majlis-i-Amal (MMA), while the Alliance for the Restoration of Democracy (ARD) opposed it.
  • Validated the LFO and extended Musharraf's presidential term for five years.
  • The President retained authority to appoint service chiefs in consultation with the Prime Minister.
  • Invocations of Article $58(2)\text{B}$ were made subject to automatic reference and review by the Supreme Court.
  • Restored the pre-LFO judicial retirement age, leading to the immediate retirement of the sitting Chief Justice and several superior court judges.
  • Protected the Local Government System for six years (instituted under the Devolution of Power Plan on 23 March 2000 via the National Reconstruction Bureau, which had eliminated the administrative post of Divisional Commissioner and re-designated Deputy Commissioners as District Co-ordination Officers).
  • Allowed the President to simultaneously retain the office of Chief of Army Staff through the passage of the Dual Offices Act, overriding an earlier commitment to step down as military chief by 31 December 2004.