constitution of pakistan and peoples rights

CONSTITUTION OF PAKISTANAND PEOPLES’ RIGHTS

THE NETWORK PUBLICATIONS

Title: Constitution of Pakistan and Peoples' Rights

Author: Nazeer Ahmad

All rights reserved. Any part of this publication may be reproduced or translatedwith prior permission of The Network for Consumer Protection.

First published April 2004Second Edition September 2004

ISBN 969-8807-00-4

This publication was made possible with support provided by The Asia Foundation and the U.S. Agency for International Development. Theopinions expressed here are those of the author(s) and do not necessarilyreflect the views of The Asia Foundation or the U.S. Agency forInternational Development.

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Executive Summary 2

Constitution and Rights: An Introductory Framework 5What is Constitution?Why Constitutions?Conceptual Basis of ConstitutionConstitution and RightsTypology of RightsRights, Democracy and DevelopmentConstitutional Design and Rights

Constitutional Milestones 8Representative Institutions in British IndiaGovernment of India Act of 1935Independence Act of 1947Interim Constitution of 1947Objectives Resolution Constitution of 1956Constitution of 1962: Presidential SystemConstitution of 1973Legal Framework Order Seventeenth Constitutional Amendment

Rights in the Constitution 13What is a Right?What are Fundamental Rights?Enforcement of Fundamental RightsFundamental Rights and Constitution MakingConstitution of 1973General Provisions on RightsFundamental RightsPrinciples of Policy

Executive-Legislature Relations 22What is Parliamentary System?History of Executive-Legislature Relations

Contents

Preface

Constitution of 1973: Era of Parliamentary SovereigntyEighth Amendment: Erosion of Parliamentary SovereigntyThirteenth Amendment: Restoration of Parliamentary SovereigntyLegal Framework Order: Revival of Eighth AmendmentSeventeenth Constitutional Amendment

Relations between Federation and Provinces 30FederalismFundamental Principles of FederalismConstitutional BackgroundConstitution of 1973Amendments in Constitution of 1973

Judiciary and Rights 34Fundamental RightsRights of ProvincesAppointment and Accountability of Judiciary

Conclusions: Denial of Rights and the Constitution 35Pakistan's Constitutional MayhemSuspension of Fundamental RightsRights of MinoritiesExecutive-Dominated Parliamentary System: Denial of Political RightsFederalism and Rights of ProvincesIndependence and Predictability of Judiciary

Chronology of Political and Constitutional 40Developments in Pakistan

Notes and References 43

Suggested Readings 47

Appendix A: Amendments in the Constitution of 1973 49

Appendix B: Pakistan's Ranking in Political and Civil Rights 50

Appendix C: International Human Rights Instruments: 53Comparative Profile

Appendix D: Judicial Response: Military Coups 54and Dissolution of Parliaments

Constitution of Pakistan and Peoples’ Rights

Fifty-seven years ago, when the people of Pakistan won independence from the British, theyawaited a great metamorphosis. From being the subjects of a powerful and brutal empire,they were to become citizens of a free country, a homeland that was to be shaped by theirdreams and aspirations. Independence, however, soon turned into a "false dawn" and peoplerealized that it meant little more than a change of masters. The promise of equitable devel-opment and democratic rule in the country has eluded the people ever since, with the rulingelite faithfully sticking to its colonial mindset and methods of subjugation.

As the world discovers the importance of good governance in solving some of the most press-ing problems confronting the developing world, the civil society in Pakistan is also increas-ing its engagement with key public issues. It is cognizant of the fact that meaningful devel-opment effort must pay attention to issues of public policy, governance and citizens' rights.Moreover, “good politics” must precede and reinforce good governance.

This paper is the first in a series of publications intended to contribute to the larger civil soci-ety struggle for realizing the cherished dream of development and democracy. These publi-cations are aimed at raising people's awareness on vital political, social and economic issues.They seek to break the silence, ignite public debate and open a serious dialogue, therebystrengthening the demand for democracy and good governance.

The paper is an attempt to demystify the constitution and to understand the nature and scopeof constitutional rights of the people. Generally, people in Pakistan know constitution only asa controversy! Few would know their rights and entitlements provided comprehensively inthe same document but which have never been a subject of public debate.The paper providesa comprehensive framework for understanding linkages between the constitution and rights,highlighting the importance of constitutional design and also constitutionally defined exec-utive-legislature and centre-provinces relationship for securing rights.

The research for this issue paper was undertaken by Mr. Nazeer Ahmad, an established polit-ical researcher with wide experience. We appreciate his untiring work that made this publi-cation possible. The paper was reviewed by no less authority than Mr. Hamid Khan, one ofPakistan's foremost constitutional lawyers and former President of the Supreme Court BarAssociation. Syed Fakhar Imam, former Speaker of the National Assembly and a veteranpolitician, also read the draft and obliged us with his valuable comments.

I appreciate the partnership and support of The Asia Foundation for this project, and hope thatit will mark the beginning of a long association. The project team led by Zaigham Khan hasdone a commendable job and I congratulate him and his project colleagues, Raja Ehsan Aziz,Mohammad Najeeb, Haniya Aslam and M.Y. Khan. We are also thankful to all SDDP (Sup-porting Democratic Development in Pakistan) project partners who contributed in the initialdiscussions that brought clarity to our efforts.

The publications will be accompanied by countrywide public dialogues, round tables andother activities by The Network and other civil society partners to increase awareness onthese issues. I look forward to this paper triggering a vigorous debate among citizens and con-tributing towards the larger goal of democratic development in the country.

Dr. Zafar MirzaExecutive CoordinatorThe Network for Consumer Protection

Preface

A constitution is a fundamental lawof a state that provides a basicframework for governance, law-making and policy formulation.The most important aspect of a con-stitution is the provision and protec-tion of rights. There is increasingemphasis, in recent years, on inclu-sion of human rights in nationalconstitutions and legal regimes.

Rights may be broadly classifiedinto two types: civil and politicalrights, and economic, social andcultural rights. Both categories areincluded in the international legalregime of rights. There exist keylinkages between the two types andalso between rights on the one handand democracy and developmenton the other.

Fundamental rights constitute acomprehensive concept of rights,and include a wide range of politi-cal and civil rights. An essentialcharacteristic of fundamental rightsis that they impose limitations onpublic authorities - legislature,executive and judiciary, prohibitinginterference in exercising of theserights.

A country's constitutional designsignificantly affects state of rights.The main principles of a constitu-tional design which can ensurerights are: (1) avoidance of major

and frequent changes in the consti-tution; (2) checks and balancesbased on separation of powers andindependence of judiciary and leg-islature; (3) effective civilian con-trol over the military; (4) competi-tive political system; (5) function-ing government; (6) rights ofminorities; and (7) devolution ofpower.

The British introduced modern con-stitutional concepts, institutions andprocedures in the subcontinent. TheIndian Councils Act of 1861 pro-vided for a rudimentary frameworkfor legislation and administration inBritish India. The Government ofIndia Acts of 1909 and 1919strengthened the principle of repre-sentation and expanded the votingrights. The Government of IndiaAct of 1935 made the provincesseparate legal entities.

After independence, the ObjectivesResolution of March 1949 laid thefoundations for the future constitu-tion of Pakistan. The first ever Con-stitution was passed by the secondConstituent Assembly in 1956,declaring Pakistan an IslamicRepublic with a federal-parliamen-tary system. General Ayub Khanpromulgated the second Constitu-tion in 1962, introducing a presi-dential form of government. Thethird Constitution was adopted in


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Executive Summary

1973, establishing a federal-parlia-mentary system. This historic docu-ment has survived for 31 years,though with various amendments.

A total of fourteen amendments,out of the seventeen moved in thelegislature, have so far been insti-tuted in the Constitution. Theamendments reverse some of thebasic features of the original Con-stitution of 1973 and restrict funda-mental rights and rights of theprovinces.

The first ever Constitutional Com-mittee, set up in the inaugural ses-sion of the Constituent Assembly ofPakistan on August 12, 1947 wason "Fundamental Rights of the Cit-izens of Pakistan" and "Mattersrelating to Minorities". It under-lines the importance accorded bythe founders of Pakistan to funda-mental rights and particularly therights of minorities in the constitu-tion of the new state. Pursuant tothe report of the Committee,detailed provisions on rights of cit-izens were included in the Constitu-tions of 1956, 1962 and 1973.

Even though several provisions ofthe Constitution prohibit discrimi-nation against minorities, Pakistan'srecord on preserving minorityrights remains questionable.

Pakistan lags behind other states inSouth Asia in comparative standingon rights. Its record on civil andpolitical rights and in respect ofsigning and ratification of interna-tional conventions on human rightsis equally deficient.

Pakistan's turbulent constitutionalhistory is replete with problems

impinging on the state of rights, beit absence of constitutional gover-nance, an executive-dominated sys-tem or a strong central government.The abrogation or suspension ofConstitutions has led to the denialof fundamental rights and civil lib-erties. Constitutional engineeringaimed at diluting democratic orderin the country has resulted in ero-sion of people's civil and politicalrights.

Notwithstanding constitutional pro-visions on fundamental rights andtheir enforceability through thesuperior courts, a prolonged state ofemergency in the country hasundermined implementation ofthese rights. Thus fundamentalrights have not been justiciable for36 out of Pakistan's 57 years ofexistence. These 36 years include asubstantial period in which therewere functioning parliaments.

An executive-dominated system inthe country has generally resultedin denial of rights. In fact, Pakistanhas been oscillating between execu-tive-controlled civilian govern-ments and military rule with theexception of only two short-livedperiods of parliamentary sover-eignty, from 1973 to 1977 and 1997to 1999.

A parliamentary form of govern-ment should have parliamentarysovereignty to function effectively.But the 1956 Constitution, 1973Constitution after the EighthAmendment, LFO (2002) and Sev-enteenth Amendment (2003), lackparliamentary character in a stricttechnical sense. The executive'sdomination of the system under-mines independence and sover-


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eignty of the legislature. It denieslegislature the exclusive power toelect and supervise a functioninggovernment as typically required ina parliamentary system. It alsonegates a competitive and fairprocess of coming into power.

The problems relating to federalstructure in Pakistan are rathercomplex and thorny. Here, twoissues are particularly noteworthy.First, provincial governments andlegislatures have been formed andcontrolled by the centre; and sec-ond, distribution of legislative,financial and administrative powersbetween the centre (federal) and theprovinces (federating units) haveclearly been tilted in the favour ofthe centre.

The independence and predictabil-ity of the judiciary is imperative foreffective implementation of legalregime of rights. Besides, the sys-tem of appointment and accounta-bility of judges is crucial in ensur-ing judicial independence. How-ever, judicial outcome of severalsignificant petitions in Pakistan aresuggestive of the unpredictability ofthe judiciary.

In four military takeovers over thepast 57 years, the judiciary justified1958, 1977 and 1999 coups andheld the 1969 takeover as unlawfuland usurpatory. Of the country'stwelve legislative assemblies, ninehave so far been dissolved. Whileall nine dissolution orders werechallenged before the superior judi-ciary, it justified the dissolution ofsix and declared three other ordersas being unconstitutional.


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“ The executive's domination of the system undermines independenceand sovereignty of the legislature. Itdenies legislature the exclusive power toelect and supervise a functioning gov-ernment as typically required in a par-liamentary system.”

What is Constitution?In the broadest sense a constitutionis a body of rules governing theaffairs of an organized group.1 Aconstitution is a fundamental lawof a state, which provides a basicframework for legislation and pol-icy formulation. It reflects the cul-tural values, aspirations, traditionsand historical outlook of the peo-ple that it represents.

Why Constitutions?Every state has a constitution, at leastin the sense that it operates its impor-tant institutions according to somefundamental body of rules. In thissense the only conceivable alterna-tive to a constitution is the conditionof anarchy. Constitutions may bewritten or unwritten, complex orsimple, and may provide for vastlydifferent patterns of governance, butthere is no concept of a state withouta constitution.

Conceptual Basis of ConstitutionBasic concepts of a modern constitu-tion were laid down in the classicalworks on social contract, especiallythose of English philosophersThomas Hobbes and John Locke inthe 17th century and French philoso-pher Jean-Jacques Rousseau in the18th century. The theorists of socialcontract pleaded that the peoplethrough their representatives are sup-posed to choose their governmentand mode of governance by means

of a social contract or constitution.2

The influence of the theories ofsocial contract, especially as theyrelate to the issues of natural rightsand the proper functions of govern-ment, pervades constitution mak-ing in the United States, France,and continental Europe.3

Constitution and RightsThe most important aspect of anyconstitution is the provision andprotection of rights. Precisely forthis reason the Bill of Rights in theBritish and American constitutionsis considered a significant develop-ment in constitutional history. TheEnglish Bill of Rights, declaringrights and liberties of the subjectand ensuring supremacy of Parlia-ment over the monarchy, waspassed in 1689. The American Billof Rights of 1791, consisting of thefirst ten amendments to the U.S.Constitution, confirms fundamen-tal rights of the citizens.

Presently, there is increasingemphasis on the integration ofhuman rights into national constitu-tions and legal regimes. Incorpora-tion of international human rightsnorms into national laws and con-stitutions is a key element in theprotection of rights. It makes themenforceable in the courts and givespeople the legal communicationneeded to take action when theirrights are violated.4

“ The mostimportant aspect ofany constitution isthe provision andprotection of rights.Precisely for this reason the Bill ofRights in the Britishand American constitutions are considered a signifi-cant development inconstitutional history.”

Constitution and Rights An Introductory Framework


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Typology of RightsRights are broadly classified intotwo types: civil and political rights;and economic, social and culturalrights. Both categories are reflectedin the international legal instru-ments on rights, i.e. InternationalCovenant on Civil and PoliticalRights and International Covenanton Economic, Social and CulturalRights.

Civil and political rights include:

Freedom of press, speech, andassembly; Right to vote and to petition tothe government; Entitlement to due process oflaw and other legal protec-tions.

Economic, social and culturalrights include:

Basic necessities for an ade-quate standard of living,including employment, nutri-tion, shelter, health care, andeducation.5

One can find key linkages betweenthe two types. Access to basic edu-cation, health care, shelter andemployment is as critical to humanfreedom as political and civilrights. On the other hand, only withpolitical freedoms can people gen-uinely take advantage of economicfreedoms.6

Rights, Democracy and DevelopmentThere are considerable linkagesbetween rights on the one handand democracy and developmenton the other. Democratic gover-nance is an irreducible condition

for attainment of rights. Like-wise, authoritarianism is a nega-tion and denial of rights. Democ-racy is the only form of politicalregime compatible with all fivecategories of rights - political,civil, economic, social and cul-tural.7

The Nobel Laureate Amartya Senhas emphasized the significance ofsecuring rights for development bysaying that development requiresthe removal of major sources of"unfreedom". These are poverty aswell as tyranny; poor economicopportunities as well as systematicsocial deprivation and neglect ofpublic facilities as well as intoler-ance or over-activity of repressivestates.8

Discussing key linkages betweendifferent types of rights, Senobserves that sometimes lack ofsubstantive freedoms relatesdirectly to economic poverty. Itrobs people of the freedom to sat-isfy hunger, or to achieve suffi-cient nutrition, or to obtain reme-dies for treatable illnesses, or theopportunity to be adequatelyclothed or sheltered. In other cases,unfreedom links closely to the lackof public facilities or social care. Instill other cases, the violation offreedom results directly from adenial of political and civil liber-ties by authoritarian regimes andfrom imposed restrictions on thefreedom to participate in thesocial, political and economic lifeof the community.9

Constitutional Design and RightsConstitutional design can greatlyinfluence the state of rights in a


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“ Access to basic education,health care, shelterand employment isas critical to humanfreedom as politicaland civilrights.”

country. It can either facilitate orimpede implementation of rights.There are guarantees in constitu-tions with respect to protection ofrights. The nature of executive-leg-islature relations, centre-provincerelations and role of the judiciary,as provided in a constitution, sig-nificantly affect the state of rightsin a country.

An understanding of the constitu-tional design in relation to protectionof rights makes certain aspects verysignificant. These aspects could be:

1.Constitution must not besubjected to frequent andmajor changes.10 It leads topolitical instability with con-sequent implications forimplementation of rights.

2.System of checks and bal-ances based on the separationof powers, with independentjudicial and legislativebranches.11 In many democra-cies there is domination by theexecutive branch resulting indenial of political rights.

3.Effective civilian controlover the military and othersecurity forces.12 Heavy mil-itary involvement in politics isconsidered an important causeof undermining civil andpolitical rights.13

4.Competitive political sys-tem. The system should beopen to the rise and fall ofcompetitive parties and group-ings. There should also be arealistic possibility for theopposition to increase its sup-port or gain power throughelections.14

5.Functioning government.Freely elected representativesshould determine the policiesof government.15

6.Rights of minorities. Inrespect of ethnic and culturalminorities, a reasonable self-government, autonomy or par-ticipation of these groups hasto be ensured. 16

7.Devolution of Power. Elec-tions and other formal checksenable citizens only to end thetenure of politicians whoabuse their mandates. Onesolution to such problems isto decentralize power to lowerlevels of government - bring-ing it closer to the people.17


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“ In respect of ethnic and cultural minorities, a reasonable self-

government, autonomy or participation ofthese groups has to be ensured.”


8

The British introduced modernconstitutional concepts, institu-tions and procedures in the sub-continent. Initially, it was the EastIndia Company that establishedcolonial rule from 1600 to 1858.Following the war of independ-ence in 1857, power was trans-ferred from the Company to theCrown. The British Governmentformally assumed control over theadministration of India after aproclamation issued by QueenVictoria on November 1, 1858.

Representative Institutions in BritishIndiaThe Indian Councils Act of 1861provided for a rudimentary frame-work for legislation and adminis-tration in India. It was passed tomake better provisions for theconstituting of the Council of theGovernor General and for theLocal Government of the Presi-dencies and Provinces of India.The Indian Councils Act of 1892was enacted in order to amend theIndian Councils Act of 1861. TheGovernor General's Council wasexpanded. The Government ofIndia Acts of 1909 and 1919 fur-ther strengthened the principle ofrepresentation and expanded vot-ing rights.

Government of India Act of 1935Most importantly, the Governmentof India Act of 1935 made the

provinces separate legal entities.Hence the federal basis of BritishIndia was accepted for the firsttime. The executive power andauthority of the federation wasvested in the Governor General.However, the jurisdiction of the

federal government was subject tothe limitation that the federal exec-utive authority did not extend toany province in matters exceptthose expressly provided in theAct.18

A federal court was establishedunder the Act. It was to be a tribu-nal for determination of disputesbetween the units of the federa-tion.19

Constitutional Milestones

Franchise: From Restricted to Universal In 1884, the first restricted franchise elections were held for localgovernment institutions. They were in fact the first ever elections inthe subcontinent. The restricted franchise, as opposed to univer-sal adult franchise, limits voting rights to only those who had therequired property, income or education. The Government of IndiaActs of 1909, 1919 and 1935 expanded franchise by easingproperty, income and literacy requirements. The first ever provin-cial elections in Pakistan on the basis of universal adult franchisewere those of the Punjab Assembly in 1951 and the first everNational Assembly elections on the same basis were held inDecember 1970.

For further information, See Andrew R. Wilder, The Pakistani Voter: Electoral Poli-tics and Voting Behaviour in the Punjab, Oxford University Press, 1999. pp. 15-21.


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Independence Act of1947 The Independence Act of 1947 wasenacted to give effect to theMountbatten Plan of June 3, 1947.The Act provided for the partitionof British India and establishmentof two independent countries to beknown as India and Pakistan. Thelegislatures of the two dominionswere made fully sovereign andgiven the powers to make laws.The Constituent Assemblies ofboth the states were given the pow-ers to frame their respective consti-tutions.

Interim Constitution of1947The Interim Constitution of 1947was framed with adaptations fromthe Government of India Act,1935. The Pakistan (ProvisionalConstitutional) Order, 1947 estab-lished the federation of Pakistancomprising: (1) the four Provincesof East Bengal, West Punjab,Sindh, and North West FrontierProvince, (2) Balochistan, (3) anyother areas that might with theconsent of the Federation beincluded therein; (4) the capital ofthe federation, Karachi; and (5)such Indian (princely) states thatmight accede to the federation.20

Objectives ResolutionThe first significant developmentin constitution making in Pakistanwas the passage of "Aims andObjective of the Constitution",popularly known as ObjectivesResolution. The Objectives Reso-lution laid the foundations of theconstitution and provided thebroad outlines of its structure. Thepassage of the Objectives Resolu-tion on March 12, 1949 has been

termed as the most important occa-sion in the life of Pakistan, next inimportance only to the achieve-ment of independence.21

Liaqat Ali Khan, the first PrimeMinister of Pakistan, moved theObjectives Resolution in the Con-stituent Assembly on March 7,1949. It was passed by majorityvote on March 12, 1949, althoughall the minority members opposedthis Resolution.22

Constitution of 1956The first ever constitution for thecountry was passed by the secondConstituent Assembly in 1956.Pakistan was declared an IslamicRepublic wherein the principles offreedom, equality, tolerance andsocial justice as enunciated byIslam were to be fully observed.The head of state, the President,was to be a Muslim. Another basicfeature therein was the federalform of constitution. The type ofgovernment was decided to be par-liamentary. The parliament wasunicameral consisting of the Presi-dent and a single chamber, theNational Assembly. The Constitu-tion of 1956 was abrogated twoyears later with the imposition ofthe first martial law in 1958.

Constitution of 1962: Presidential SystemGeneral Ayub Khan promulgatedthe second Constitution in 1962,introducing a presidential form ofgovernment. Although the systemunder the British was by no meansan unqualified parliamentary gov-ernment, some form of parliamen-tary institutions had been workingin the subcontinent since 1919. Butthe 1962 Constitution detracted

“ Democraticgovernance is an irreducible conditionfor attainment ofrights. Likewise,authoritarianism is a negation and denial ofrights. ”

from that tradition. General YahyaKhan abrogated the second Consti-tution with the imposition of sec-ond martial law in 1969.

Constitution of 1973The third Constitution was passedby the legislature in 1973. It is animportant document of Pakistan's

history, which has survived 31years and two military interven-tions. The Constitution providesfor parliamentary sovereignty anda federal form of government. Forthe first time in constitutional his-tory it provides in Article 6 thatany person who abrogates or sub-verts the Constitution by use of

Whereas sovereignty over the entire universe belongsto God Almighty alone and the authority which He hasdelegated to the State of Pakistan through its people forbeing exercised within the limits prescribed by Him isa sacred trust;

This Constituent Assembly representing the people ofPakistan resolves to frame a constitution for the sover-eign independent state of Pakistan;

Wherein the State shall exercise its powers and author-ity through the chosen representatives of the people;

Wherein the principles of democracy, freedom, equal-ity, tolerance and social justice as enunciated by Islamshall be fully observed;

Wherein the Muslims shall be enabled to order theirlives in the individual and collective spheres in accordwith the teachings and requirements of Islam as set outin the Holy Quran and the Sunnah;

Wherein adequate provisions shall be made for theminorities freely to profess and practice their religionsand develop their cultures;

Whereby the territories now included in or in associa-tion with Pakistan and such other territories as may

thereafter be included in or accede to Pakistan shallform a Federation wherein the units will beautonomous with such boundaries and limitations ontheir powers and authority as may be prescribed;

Wherein people shall be guaranteed fundamentalrights including equality of status, of opportunitybefore law, social, economic and political justice, andfreedom of thought, expression, belief, faith, worshipand association, subject to law and public morality;

Wherein adequate provision shall be made to safe-guard the legitimate interests of minorities and back-ward and depressed classes;

Wherein the independence of the judiciary shall befully secured;

Wherein the integrity of the territories of the Federa-tion, its independence and all its rights including itssovereign rights on land, sea and air shall be safe-guarded;

So that the people of Pakistan may prosper and attaintheir rightful and honoured place amongst the nationsof the World and make their full contribution towardsinternational peace and progress and happiness ofhumanity.

Objectives ResolutionThe text of the Objectives Resolution as passed by the first Constituent Assembly of Pakistan on March 12, 1949:

In the name of Allah, the Beneficent, the Merciful:


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force, or show of force, or by otherunconstitutional means, shall beguilty of high treason.23

A total of fourteen amendments,out of the seventeen moved in thelegislature, have been instituted inthe Constitution, over the last 31years. The amendments reversesome of the main features of theoriginal Constitution. Moreover,these amendments restrict funda-mental rights and rights of theprovinces.

The First Constitutional Amend-ment was meant to curtail politicalrights by amending Article 17 ofthe Constitution. The Third, Fourthand Fifth Amendments restrictfundamental rights and powers ofthe judiciary. The Revival of Con-stitutional Order (RCO) of 1985and the Eighth Amendment tippedthe balance of power from PrimeMinister to President and dilutedthe Constitution's parliamentaryform. The Thirteenth Amendmentrestored the position of Prime


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Article 2 A was inserted, making the Objec-tives Resolution a substantive part of the Consti-tution. The Resolution, with some modifications,had already been adopted as a preamble to theConstitutions of 1956, 1962 and 1973. Now theresolution was reproduced as an Annex and madean operative part of the Constitution.

The Electoral College for election to the officeof the President was modified so as to compriseboth Houses of Parliament and all four ProvincialAssemblies. (With equal weightage given interms of votes to each Provincial Assembly).

The President was empowered to dissolve theNational Assembly at his discretion where, in hisopinion, an appeal to the electorate was necessary.

A separate electorate for minorities was givenconstitutional recognition for the first time in Pak-istan. General Zia had earlier introduced separateelectorate for minorities in 1979 by amending theRepresentation of the People Act, 1976. However,previously, under the Fourth Amendment, elec-tions for the minority seats were held in theNational Assembly itself, based on proportionalrepresentation with a single transferable vote.

The number of general constituencies (forMuslims) of the National Assembly was raisedfrom 200 to 207. Besides, ten seats were reservedfor minorities. The minority seats in ProvincialAssemblies were increased.

The seats reserved for women in the NationalAssembly were increased from ten to twenty.

The number of seats in the Senate was raisedfrom 63 to 87, with five seats from each provincereserved for technocrats, ulema, or professionals.

One of the striking changes brought about bythe RCO was a large number of additions to thequalifications and disqualifications for member-ship to the Parliament.

The time-period for the President to giveassent to the Bills passed by the Parliament wasincreased from seven to forty-five days. The Pres-ident could return a Bill (other than a Money Bill)within forty-five days for reconsideration. Thisgave the President the power to veto a Bill, butthis could be overridden by passing the same Billagain by a majority of the members, present andvoting, of both Houses of Parliament in a JointSitting.

Revival of Constitutional Order (RCO), 1985(The Constitution of Pakistan was comprehensively amended through a President's Order, known as the Revival of Constitutional Order (RCO), on March 2, 1985.)

Minister provided in the originalConstitution.

Legal Framework OrderThe President issued the LegalFramework Order (LFO) onAugust 21, 2002, which broughtabout sweeping changes in theConstitution of 1973. The LFO isagain a return to the position of theEighth Amendment. It stronglyimpinges on the parliamentary sov-ereignty and the federal structure ofPakistan.

Seventeenth Constitu-tional AmendmentThe Seventeenth Amendment wasapproved by the parliament andbecame a part of the Constitution onDecember 31, 2003. The Amend-ment does not bring provisions ofLFO before the parliament for vali-dation. Instead, it validates all Ordersand Ordinances including the LFOthrough the insertion of Article270AA in the Constitution.

A constitutionalamendment Billbecomes an Act ofParliament and instituted in the consti-tution when passed byboth houses of theParliament with twothird majority of totalmembership andassented to by thePresident.

(See Appendix A)


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What is the Eighth AmendmentThe President was required to act on the advice of Prime Ministeror Cabinet. The President could, however, require the Prime Minis-ter or Cabinet to reconsider such advice.

The President was given the power to dissolve the National Assem-bly at his/her discretion provided that, in his/her opinion, the gov-ernment could not be carried on in accordance with the provisions ofthe Constitution and an appeal to the electorate became necessary.

The Governor could also dissolve the Provincial Assembly athis/her discretion, subject to the prior approval of the President.

The President was given the powers to appoint, at his/her discretion,Chiefs of Armed Forces and the Chief Election Commissioner. ThePresident was also empowered to appoint Governors of theprovinces, however, in consultation with the Prime Minister.

The power of the President to appoint the Prime Minister was lim-ited to a period of five years, until March 20, 1990. After this datethe President was required to invite that member of the NationalAssembly who commanded the confidence of the majority of mem-bers.

The period of giving assent by the President to Bills passed by Par-liament was reduced from forty-five to thirty days.

Article 270 A provided indemnity to all laws, acts, and orders ofmartial law regime including Revival of Constitutional Order, 1985.


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What is a Right?In its legal sense a right is an interest,which is created and enforced eitherby the constitution or by ordinarylaw. In the former sense, it is a con-stitutional right, which can only betaken away by an amendment of theconstitution; in the latter, it is anordinary right, which may beenlarged, abridged or destroyed byordinary law.24

What are FundamentalRights?Fundamental rights are a compre-hensive concept of rights, whichinclude a wide range of political andcivil rights. The essential character-istic of fundamental rights is thatthey impose limitations, expressedor implied, on public authorities -legislature, executive and judiciary,prohibiting them from interferencein the exercising of these rights.25

Enforcement of Fundamental RightsFundamental rights are meant to beenforced by a court of law, and arestated in the Constitution not merelyas an expression of recognition ofrights. It has been observed in a casebrought before the Supreme Courtthat for a right to be fundamental itmust be enforceable by judicial orsome other process.26 Any actiontaken by the legislature or the execu-tive in violation of a fundamentalright is void in law and the courts arebound to make a declaration accord-ingly and to give suitable relief to the

aggrieved party. This obligation isthe very essence of what is called thejudicial review of legislation.27

According to Article 184 (3) of theConstitution, the Supreme Court hasjurisdiction to take notice with refer-ence to enforcement of any of thefundamental rights. Likewise, Arti-cle 199 empowers the High Courtsto order any person or authority,including the Government, for theenforcement of fundamental rights.

Fundamental Rights andConstitution Making The English notion of natural rightswas taken by the settlers to theAmerican continent. It was given aprecise legal form in the Constitu-tion of the United States. WhenIndia, Pakistan and Burma becameindependent and framed theirown constitutions, these rightsreceived special attention in theirscope and formulation.28

The first ever Constitutional Com-mittee, set up in the inaugural ses-sion of the Constituent Assembly ofPakistan on August 12, 1947 was on"Fundamental Rights of the Citizensof Pakistan" and "Matters relating toMinorities". It is indicative of theimportance the founders of Pakistanattached to fundamental rights,including the rights of minorities, inthe Constitution. The interim reportof the Committee was adopted bythe Constituent Assembly in 1950

Rights in the Constitution

“ The firstever ConstitutionalCommittee, set up inthe inaugural sessionof the ConstituentAssembly ofPakistan on August12, 1947 was on"Fundamental Rightsof the Citizens ofPakistan" and"Matters relating toMinorities".”


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and the final report in 1954.29

On the basis of this report, a widevariety of rights of citizens wereincluded in the Constitution of 1956as fundamental rights. The Constitu-tion declared that all laws inconsis-tent with or in derogation of the fun-damental rights would be void.These rights were made enforceableby the Supreme Court. The HighCourts were also empowered to issuesuch writs for enforcement of funda-mental rights. 30

The Constitution of 1962 originallyomitted fundamental rights. It waslater amended to include a chapter onfundamental rights through the Con-stitutional First Amendment Act,1963. Fundamental rights included inthe 1962 Constitution were the sameand similarly worded as those in the1956 Constitution and made enforce-able by the High Courts. However,no writ jurisdiction was conferred onthe Supreme Court for enforcementof these rights.31

Constitution of 1973 Fundamental rights provided in theConstitution of 1973 were similarlyworded as those in the previous Con-stitutions.32 These were madeenforceable through the SupremeCourt and the High Courts. How-ever, amendments in the Constitu-tion of 1973 had implications forfundamental rights.

The First Amendment was meant tocurtail political rights by amendingArticle 17 of the Constitution. It pro-vided that a state employee couldneither form a political party norbecome its member. Further qualify-ing the restrictions, the words "sov-ereignty" and "integrity" wereadded. According to the Amend-

ment, if the Federal Governmentdeclared that any political party hadbeen formed or was operating in amanner prejudicial to the sover-eignty and integrity of Pakistan, itwould refer the matter within fifteendays of such declaration to theSupreme Court.

The Third, Fourth and Fifth Consti-tutional Amendments limit funda-mental rights and the powers of thejudiciary. The LFO 2002 furtheramends Article 17 on fundamentalrights, and lays down that no politi-cal party shall promote sectarian,ethnic, regional hatred or animosity,be titled or constituted as a militantgroup or section, and that everypolitical party shall hold intra-partyelections. Hence, Article 17, whichtheoretically guarantees politicalrights, is the most amended provi-sion on fundamental rights.

Part II of the Constitution has twochapters: Fundamental Rights andPrinciples of Policy. A close studyof the two reveals that the chapter onFundamental Rights contains, byand large, political and civil rights,and the chapter on Principles of Pol-icy provides for economic, socialand cultural rights. The difference issignificant. While fundamentalrights are enforceable by the supe-rior judiciary, the principles of policyneed to be strictly followed by eachorgan of the state, but are notenforceable by courts.

Thus constitutional provisions relat-ing to rights can be categorized intothree types, i.e. general provisionson rights, fundamental rights, whichare enforced by courts, and princi-ples of policy, which are imple-mentable but non-justiciable rights(not enforceable by courts).

SSttaattee EEmmppllooyyeeeessiinn PPoolliittiiccss

The constitutional ban on stateemployees to form a politicalparty or become its membersseems to be rather rare. The exist-ing constitutions of Australia,Bangladesh, Canada, China,France, Germany, Ireland, Italy,Japan, Nepal, Russian Federation,Singapore, South Africa, SriLanka, Swiss Federation and theUnited States of America have noprovision mentioning suchrestriction on state employees.Notably, the Constitutions of1956, 1962 and the original 1973Constitution of Pakistan do notmention such a ban.

There are, however, varied statu-tory and regulatory regimes indifferent countries prescribingdifferent kinds of limitations onstate employees regarding theirrole in politics. For instance, inthe United Kingdom, civil ser-vants are barred from standing forpolitical offices; neither can theytake an active part in party poli-tics. Conversely, in the UnitedStates it is somewhat flexible forpublic employees to take part inpolitics with various sets of provi-sions for federal, state and localgovernments.


15

General Provisions on Rights

Articles 4 and 8 of the Constitutionenvisage two general but veryimportant premises of the legalregime that governs fundamentalrights in Pakistan. Article 4 providesfor the inalienable right of every cit-izen to legal protection and legaltreatment. It reinforces the conceptof the sanctity of human life, liberty,reputation and property. Article 8provides for another basic premiseof the supremacy of fundamentalrights, stating that any law, which isrepugnant to fundamental rights,would be void.

Right of individuals to bedealt with in accordancewith law (Article: 4)

To enjoy the protection of law andto be treated in accordance with lawis the inalienable right (i.e. a rightthat can never be taken away) ofevery citizen, wherever he (or she)may be, and of every other person forthe time being within Pakistan.In particular:

No action detrimental to the life,liberty, body, reputation or propertyof any person shall be taken exceptin accordance with law;

No person shall be preventedfrom or be hindered in doing thatwhich is not prohibited by law; and

No person shall be compelled todo that which the law does notrequire him (or her) to do.Supremacy of fundamentalrights: laws inconsistent withor in derogation of funda-mental rights to be void (Article: 8)

Any law, or any custom or usagehaving the force of law, if it is incon-sistent with the rights conferred by

the chapter on fundamental rightswould be void.

The state shall not make any lawwhich takes away or abridges therights and any law made in contra-vention of this clause shall be void.

The rights conferred by the chap-ter on fundamental rights shall notbe suspended except as expresslyprovided by the Constitution.

Exceptions: The provisions of this Article

shall not apply to any law relatingto members of the armed forces,police or of such other forces as arecharged with the maintenance ofpublic order.

Fundamental Rights(Justiciable Political and

Civil Rights)

Chapter one of Part II of the Consti-tution provides for fundamentalrights, which are enforceable bycourt of law. These rights are mainlypolitical and civil rights.

1. Security of person (Article: 9)

No person shall be deprived oflife or liberty except in accordancewith law.

2. Safeguards againstarrest and detention(Article: 10)

No person who is arrested shallbe detained in custody without beinginformed of the grounds for sucharrest. He (or she) shall not bedenied the right to consult and bedefended by a legal practitioner ofhis/her choice.

Every person who is arrested and

“ The Constitution of1962 originallyomitted fundamentalrights. It was lateramended to include achapter on funda-mental rightsthrough the Consti-tutional FirstAmendment Act,1963.”


16

detained in custody shall be pro-duced before a magistrate within aperiod of twenty-four hours of sucharrest.

No such person shall be detainedin custody beyond the said periodwithout the authority of a magistrate.

3. Prohibition of slavery, forced labour and child labour (Article: 11)

Slavery is non-existent and for-bidden and no law shall permit orfacilitate its introduction into Pak-istan in any form.

All forms of forced labour andtraffic in human beings are prohib-ited.

No child below the age of four-teen years shall be engaged in anyfactory or mine or any other haz-ardous employment.Exceptions:

Compulsory service for prison-ers or any service for public pur-pose, but it should not be cruel orincompatible with human dignity.

4. Protection against retrospective punishment (Article: 12)

No law shall authorize the punish-ment of a person:

for an act that was not punishableby law at the time of its occurrence;or

for an offence by a penaltygreater than the penalty prescribedby law for that offence at the time ofits occurrence.

5. Protection against double punishment and self-incrimination (Article: 13)

No person shall be:prosecuted or punished for the

same offence more than once; or compelled to be a witness against

himself, when accused of an offence.

6. Dignity of man, privacyof home and prohibition oftorture for getting evidence(Article: 14)

The dignity of man and the pri-vacy of home shall not be violable.

No person shall be subjected totorture for the purpose of extractingevidence.

7. Freedom of movement (Article: 15)

Every citizen is free to move, liveand settle in any part of the country.Qualification:

Subject to any reasonablerestriction imposed by law in thepublic interest.

“ The dignityof man and theprivacy of homeshall not be violable.No person shall besubjected to torturefor the purpose ofextractingevidence.”

“ No personshall be deprived of life or liberty

except in accordancewith law.”

8. Freedom of assembly(Article: 16)

Every citizen shall have the rightto assemble peacefully withoutarms.

Qualifications:

Subject to any reasonablerestrictions imposed by law in theinterest of public order.

9. Freedom of association (Article: 17)

Every citizen shall have the rightto form associations or unions. Exceptions and Qualifications:

A state employee can neitherform a party nor become memberof any political party.

Reasonable restrictions imposedby law in the interest of sovereigntyor integrity of Pakistan, public orderor morality.

No political party shall promotesectarian, ethnic or regional hatred.

Every political party shallaccount for the source of its funds.

Every political party shall holdintra-party elections to elect its

office bearers.

10. Freedom of trade, business or profession (Article: 18)

Every citizen shall have the rightto enter upon any lawful professionor occupation, and to conduct anylawful trade or business.Qualifications:

Subject to such qualifications asmay be prescribed by law.

11. Freedom of speech(Article: 19)

Every citizen shall have the rightto freedom of speech and expres-sion, and there shall be freedomof the press.

Qualifications:

Subject to any reasonable restric-tions imposed by law in the interestof the glory of Islam or the integrity,security or defense of Pakistan,friendly relations with foreign states,public order, decency or morality, orin relation to contempt of court, orincitement to an offence.

12. Freedom to professreligion and to managereligious institutions (Article: 20)

Every citizen shall have the rightto profess, practice and propagate his(or her) religion and every religiousdenomination and every sect shallhave the right to establish, maintainand manage its religious institutions.Qualifications:

Subject to law, public order andmorality.


17

“ Every citizen shall have the right to profess, practice and propagate his

(or her) religion and every religious denomination and every sect shall have the right to establish, maintain and manage its

religious institutions.”

13. Safeguard against taxation for purposes of any particular religion (Article: 21)

No person shall be compelled topay any special tax to be spent on thepropagation or maintenance of anyreligion other than his own.

14. Safeguards as to educational institutions in respect of religion (Article: 22)

No person attending any educa-tional institution shall be required toreceive religious instruction, or takepart in any religious ceremony, orattend religious worship, if suchinstruction, ceremony or worshiprelates to a religion other than his (orher) own.

No discrimination against anycommunity in grant of tax exemp-tions or concessions for religiousinstitutions.

No religious community can beprevented from providing religiouseducation to pupils of its community.

No discrimination in admission toeducational institutions receivingpublic funds on grounds of race, reli-gion, caste or place of birth.

15. Property rights (Article: 23)

Every citizen shall have the rightto acquire, hold and dispose of prop-erty in any part of Pakistan.Qualifications:

Subject to the Constitution andany reasonable restrictions imposedby the law in public interest.

16. Protection of property rights (Article: 24)

No person shall be deprived of his(or her) property save in accordancewith law.

If a property is needed in publicinterest then the government has togive reasonable compensation to theowner.

17. Equality of citizensand prohibition of gender discrimination (Article: 25)

All citizens are equal before thelaw and are entitled to equal protec-tion of law.

There shall be no discriminationon the basis of sex alone.

18. Non-discrimination in respect of access to publicplaces (Article: 26)

In respect of access to places ofpublic entertainment, not intendedfor religious purposes, no discrimi-nation against any citizen on theground only of race, religion, caste,sex, residence or place of birth shallbe made.

19. Safeguard against discrimination in services(Article: 27)`

No citizen otherwise qualified forappointment in the service of Pak-istan shall be discriminated againstin respect of any such appointmenton the ground of race, religion, caste,sex, residence or place of birth.Exceptions:

Quota system on the basis ofprovince/region for forty years tosecure adequate representation ofbackward regions/groups in theservice of Pakistan.


18

“ No discrimination inadmission to educational institutions receiving publicfunds on grounds of race, religion,caste or place ofbirth. ”

Specific services can bereserved for members of either sexif such services require dutieswhich can not be adequately per-formed by the members of othersex.

20. Preservation of language, script and culture (Article: 28)

Any section of citizens having adistinct language, script or cultureshall have the right to preserve andpromote the same and establish insti-tutions for that purpose.

Principles of Policy(Non-Justiciable Economic, Social and Cultural Rights)

Chapter two of Part II of the Consti-tution provides for the Principles ofPolicy. These principles addressmainly economic, social and culturalrights. These rights cannot beenforced by any court of law, unlikefundamental rights. However, theConstitution provides that it is theresponsibility of each organ andauthority of the state, and of each per-son performing functions on behalfof an organ or an authority, to act inaccordance with those Principles ofPolicy in so far as they relate to thefunctions of the organ or authority.Hence, these rights are imple-mentable though not justiciable.

Article 29 (3) provides that thePresident and Governors of allprovinces shall annually prepareand lay before the National Assem-bly and Provincial Assemblies areport on the observance andimplementation of Principles ofPolicy. It further says that provi-sion shall also be made in the

Rules of Procedure of NationalAssembly and Provincial Assem-bly for discussion on such report.

In compliance with the Constitu-tion, provisions have been made inthe Rules of Procedure (ROP) ofthe National Assembly and fourProvincial Assemblies, providingfor the constitutional requirementof an annual report by the Presi-dent and Governors of theprovinces and discussion there-upon.

Rule 159 of the National Assemblyprovides that a minister shall laythe report on the observance andimplementation of the Principlesof Policy in relation to the affairsof the Federation. Rule 161 pro-vides that after a report is laid onthe table, the Speaker shall fix aday for its discussion. The rule fur-ther states that on the day fixed theminister concerned may move thatthe report be discussed by theAssembly and may make a briefstatement explaining the salientfeatures of the report. The Assem-bly may by resolution express itsopinion or makes any observationor recommendation on the report.Similarly, Rules of Procedures ofall provincial assemblies have pro-visions fulfilling this constitutionalrequirement.


19

“ Constitu-tion provides that itis the responsibilityof each organ andauthority of the

state, and of eachperson performingfunctions on behalfof an organ or anauthority, to act inaccordance with

those Principles ofPolicy in so far asthey relate to thefunctions of the

organ or authority.

” President and Governors ofall provinces shall annuallyprepare and lay before theNational Assembly andProvincial Assemblies areport on the observance andimplementation of Principlesof Policy

As regards practicing of these rules,the available data shows that only 9reports have so far been submitted tothe National Assembly on obser-vance and implementation of thePrinciples of Policy, even though theAssembly has remained functionalfor 22 years since the promulgationof the Constitution of 1973. Therehas been no discussion on thesereports as provided under the rules,and consequently the absence ofobservations or recommendationsthat would have otherwise been for-mulated.

The Principles of Policy as providedin the constitution are reproducedherein:

1. Islamic way of life (Article: 31)

Steps shall be taken to enable theMuslims, individually and collec-tively, to order their lives in accor-dance with the fundamental princi-ples and basic concepts of Islam andto provide facilities whereby theymay be enabled to understand themeaning of life according to theHoly Quran and Sunnah.

2 . Promotion of local government (Article: 32)

The State shall encourage localGovernment institutions composedof elected representatives of the areasconcerned and in such institutionsspecial representation will be givento peasants, workers and women.

3 . Parochialism to be discouraged (Article: 33)

The State shall discourageparochial, racial, tribal, sectarian andprovincial prejudices among the citi-zens.

4 . Participation of women (Article: 34)

Steps shall be taken to ensure fullparticipation of women in all spheresof national life.

5. Protection of family (Article: 35)

The State shall protect the marriage,the family, the mother and the child.

6 . Protection of minorities (Article: 36)

The State shall safeguard thelegitimate rights and interests ofminorities, including their due repre-sentation in the federal and provin-cial services.

7. Promotion of social justice and eradication ofsocial evils (Article: 37)

The State shall:Promote, with special care, the

educational and economic interestsof backward classes or areas.

Remove illiteracy and providefree and compulsory secondary edu-cation within minimum possibleperiod.

Make technical and professionaleducation generally available andhigher education equally accessibleto all on the basis of merit.

Ensure inexpensive and speedyjustice.

Make provision for securing justand humane conditions of work,ensuring that children and womenare not employed in vocationsunsuited to their age or sex, and formaternity benefits for women inemployment.

Enable the people of different


20

“ The Stateshall discourageparochial, racial,tribal, sectarian and provincial prejudices among the citizens.”

areas, through education, training,agricultural and industrial develop-ment and other methods, to partici-pate fully in all forms of nationalactivities, including employment in

the service of Pakistan.Prevent prostitution, gambling

and taking of injurious drugs, print-ing, publication, circulation and dis-play of obscene literature and adver-tisement.

Prevent the consumption of alco-holic liquor otherwise than formedicinal and, in the case of non-Muslims, religious purposes.

Decentralize Governmentadministration so as to facilitateexpeditious disposal of its businessto meet the convenience andrequirements of the public.

8 . Promotion of socialand economic well-being (Article: 38)The State shall:

Secure the well-being of the peo-ple, irrespective of sex, caste, creedor race, by raising their standard ofliving, by preventing the concentra-tion of wealth and means of produc-tion and distribution in the hands ofa few to the detriment of generalinterest and by ensuring equitableadjustment of rights betweenemployers and employees, and land-lords and tenants;

Provide for all citizens, within theavailable resources of the country,facilities for work and adequatelivelihood with reasonable rest andleisure;

Provide for all persons employedin the service of Pakistan or other-wise, social security by compulsorysocial insurance or other means;

Provide basic necessities of life,such as food, clothing, housing, edu-cation and medical relief, for allsuch citizens, irrespective of sex,caste, creed or race, as are perma-nently or temporarily unable to earntheir livelihood on account of infir-mity, sickness or unemployment;

Reduce disparity in the incomeand earnings of individuals, includ-ing persons in the various classes ofthe service of Pakistan; and

Eliminate riba (i.e. usury or inter-est) as early as possible.

9. Participation in armed forces (Article: 39)

The State shall enable peoplefrom all parts of Pakistan to partici-pate in the armed forces of Pakistan.


21

“ The State shall secure the well-being of the people, irrespective of sex,

caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of

production and distribution in the hands ofa few to the detriment of general interestand by ensuring equitable adjustment ofrights between employers and employees,

and landlords and tenants”


22

One of the functions of the consti-tution is to elaborately define therelationship between the threeorgans of the state, i.e. executive,legislature and judiciary. A demo-cratic constitution irrespective ofthe form of government envisagescomplete independence of the judi-ciary. However, the exact nature ofthe relationship between executiveand legislature varies in differentpolitical systems. The presidentialform of government provides forabsolute separation of the execu-tive and legislature, whereas therelationship between the two inparliamentary system has variedforms, not envisaging the samedegree of separation as in the pres-idential form. In Pakistan's consti-tutional experience the parliamen-tary system remained the normwith the exception of 1962-69when presidential form of govern-ment was in force.

What is ParliamentarySystem?Parliamentary systems are based onthe premise that the parliament issovereign. A parliamentary systemmakes a distinction between headof the state or president, who repre-sents the nation symbolically as afigurehead, and chief executive orprime minister, who actually gov-erns. The head of state is generallynot a popularly elected figure andhas no power to govern.33

In parliamentary systems primeminister can stay in office as alongas his or her party, or the coalitionsupporting the government, has amajority in the parliament.34 Thelegislators can dismiss a primeminister through a vote of no con-fidence. The only common denom-inator of all systems considered asbeing parliamentary is that thegovernment must be appointed,supported, and as the case may be,dismissed by a parliamentary vote.The government is only account-able to the legislature.

“ The presidential form ofgovernment providesfor absolute separa-tion of the executiveand legislature,whereas the relation-ship between the twoin parliamentarysystem has variedforms, not envisagingthe same degree ofseparation as in thepresidentialform.”

Executive-Legislature Relations


23

Parliamentary and Presidential Systems of Government

Parliamentarism and presidentialism are the two dominantforms of democratic systems of government.

In presidential system the head of government (called thepresident) and the legislature are elected for terms of officeprescribed by the constitution. Except under exceptional cir-cumstances the legislature cannot force the president toresign, although it can remove him or her by the highlyunusual process of impeachment.

In most presidential systems the president cannot dissolve thelegislature. In parliamentary systems, on the contrary, thehead of government (who may be called prime minister, pre-mier, chancellor, president of the government or - in Ireland---taoiseach) can be dismissed from office by a vote of no con-fidence in the legislature. Normally, the prime minister canalso dissolve the legislature and call for new elections.

Presidentialism is based on a stricter separation of powers,whereas parliamentarism, although distinguishing betweenthe powers of the executive and legislature, is based on coop-eration between the two branches of government.

A basic characteristic of presidentialism is that the presidentis popularly elected, either directly or through an electoralcollege, which is elected for that sole purpose. In parliamen-tary systems the people elect only their own representatives -the members of parliament - who in turn select the head of thegovernment.

In parliamentary systems there is a distinction between thehead of state, who represents the nation symbolically, and thechief executive, or prime minister, who governs. The head ofstate, who can be a monarch or a president of the republic, isgenerally not popularly elected and has no power to govern,although he or she exercises some influence, offers advice,and often acts as a moderator by working with political lead-ers to craft an agreement or, occasionally, trying to influencepublic opinion.

Japan, Spain, the United Kingdom, the countries of Scandi-navia, and the Benelux countries are parliamentary monar-chies. Among the parliamentary republics are Hungary, Italy,the Czech Republic and the Federal Republic of Germany.

“ Japan,Spain, the UnitedKingdom, the countries of Scandi-navia, and theBenelux countries are parlia-mentary monarchies.Among the parlia-mentary republicsare Hungary, Italy,the Czech Republicand the FederalRepublic of Ger-many.”

Terms of Office: Presidents and Prime Ministers

In many presidential systems, presidents cannot be re-electedat all, or they cannot be re-elected for more than a certainnumber of terms or without a period of time elapsing after theend of the first term. In parliamentary systems the prime min-ister can stay in office as long as his or her party, or the coali-tion supporting the government, has a majority in the parlia-ment.

In parliamentary systems the legislators can dismiss theprime minister through a vote of no confidence. The disad-vantage, however, is that the parliament can be too powerfuland replace prime ministers too often. In multiparty systemsor cases with little party discipline, coalitions of parties canrealign themselves continuously, causing many changes inleadership in a short time.

Some modern constitutions, like those of Germany andSpain, have introduced mechanisms to ensure governmentstability. In Germany, for example, electoral laws establish athreshold of representation to keep small, often extremist par-ties out of the parliament. Or the parliament may be allowedto vote no confidence only by electing a successor to the cur-rent prime minister.

The Executive Branch: Vice President and Cabinet

Many presidential systems have a vice president. Some-timesthe vice president and the president are elected separately. Ifthey are elected separately, they may be of different partiesand the vice president may try to undermine the president.Normally, however, they are elected on the same ticket, withthe president playing a large role in choosing a vice presi-dential running mate. This practice may result in a vice pres-ident who would not have been chosen on the basis of quali-fications.

The cabinet, which helps the president or prime minister gov-ern, is much more independent in a parliamentary system thanin a presidential system. In a parliamentary system the primeminister is merely one among equals. Many cabinet memberswill serve under more than one prime minister, since they are


24

“ The cabinet, which helpsthe president orprime minister govern, is muchmore independent ina parliamentary system than in apresidential system.In a parliamentarysystem the primeminister is merelyone amongequals.”

likely to be important leaders in their party and members ofparliament with experience in preparing legislation.

In a presidential system, on the other hand, the president usu-ally has considerable freedom to appoint members of the cab-inet. This means that few cabinet members will have servedanother president.

Choosing a President or Prime Minister

In presidential systems, many voters focus on the personali-ties of the presidential candidates more than on their partiesand programs. It is possible for someone who has never heldany elective office, or only a local office, to win a substantialnumber of votes for president (like Ross Perot in the UnitedStates in 1992 and Stanislaw Tyminski in Poland in 1990). Ifsuch a candidate is elected (as was Alberto Fujimori in Peruin 1990), he or she is likely to come into office without thesupport of any party in the legislature and may be unable togovern effectively.

In parliamentary systems, on the other hand, a politician whowants to become prime minister must build support within aparty or coalition of parties, which will share the responsibil-ity of governing.

Unsuccessful candidates for the presidency may leave poli-tics, and their parties may be left largely leaderless. In parlia-mentary systems, however, defeated candidates become theleaders of the opposition.

An elected prime minister knows he or she has the supportonly of those who voted for the governing party or coalitionof parties and of the members of parliament who supportedhis or her candidacy. An elected president, by contrast, repre-sents all the people, even if he or she may not have obtaineda majority of the votes cast. Bolivia is an exception here.When no presidential candidate receives an absolute majorityof the popular vote, the legislature decides between the twofront-runners.


25

“Unsuccessfulcandidates for thepresidency may leavepolitics, and theirparties may be leftlargely leaderless. In parliamentarysystems, however,defeated candidatesbecome the leaders of theopposition.”

Two Types of Democratic Governance

In a parliamentary system, only the parliament has demo-cratic legitimacy, and it supports the prime minister or with-draws that support by a vote of no confidence. In a presiden-tial system the president and the legislature both have demo-cratic legitimacy, and it is not possible to say which moreaccurately represents the will of the people. If they conflict,the only solution is to turn to the judicial power - the consti-tutional or supreme court.

In Latin America, where the judicial power does not alwaysenjoy high prestige, such conflicts have often been resolvedby the armed forces. The armed forces sometimes support thepresident and close the legislature, sometimes dismiss boththe president and the legislature and install an interim gov-ernment, or sometimes assume dictatorial power for a longperiod of time.

The separation of powers in the United States is designed toweaken the power of presidents. If a president has onlyminority support in legislature, his or her power to implementpolicies can be severely limited. This inability to implementpolicies can be an important source of frustration among vot-ers and a cause of political instability.

On the other hand, the greater independence of legislaturemeans that many special or regional interests are better rep-resented than in a parliamentary system, since members oflegislature can vote against their party and president to winfavor with constituents. In parliamentary systems, party dis-cipline is enforced to support governments, thus weakeningthe "representative" function and causing voters to feelignored. This problem may be magnified in cases where noparty has a majority and the government relies on a coalitionof parties.35


26

“ In parliamentary systems, party discipline is enforced to supportgovernments, thusweakening the "representative"function and causingvoters to feel ignored.This problem maybe magnified in caseswhere no party hasa majority and thegovernment relies on a coalition ofparties.”History of Executive-Leg-

islature RelationsIn the Government of India Act of1935, the executive power andauthority of the federation wasvested in the Governor General. TheGovernor General, under the Act,was given many discretionary pow-

ers and special responsibilities.These discretionary powers lapsedfrom August 15, 1947 as amendedin the Interim Constitution of 1947.The Governor General was pre-sumed to act on the advice of hisministers and all government activ-ity was brought under the control of

President. The President was giventhe power to appoint, at his/her dis-cretion, Chiefs of Armed Forces andChief Election Commissioner. ThePresident was also given the powerto appoint Governors of provincesin consultation with the Prime Min-ister. However, this consultationwas not binding on the President.

The President was also given powerto appoint the Prime Minister,although for a limited period of fiveyears, until March 20, 1990. There-after, the President was required toinvite a member of the NationalAssembly for this office who com-manded confidence of the majorityof its members, as ascertained in asession of the Assembly summonedfor that purpose. The same appliedto the power of Governors in theprocess of choosing a Chief Minis-ter of a province.40

Thirteenth Amendment:Restoration of Parlia-mentary SovereigntyThe Thirteenth ConstitutionalAmendment, passed in 1997,reversed the changes made in theoriginal Constitution of 1973 throughthe Eighth Amendment, thus restor-ing parliamentary sovereignty.

The most significant amendmentwas the deletion of Article 58(2) (B)which gave discretionary powers tothe President to dissolve theNational Assembly. The correspon-ding power of Governors to dissolvethe Provincial Assembly was alsowithdrawn.

The power of the President in mak-ing key appointments of the Chair-man Joint Chiefs of Staff Commit-

tee, three Services Chiefs and Gov-ernors was significantly curtailed.Previously, such appointments weremade by the President "after consul-tation with" the Prime Minister.After the amendment this powerwas exercisable "on advice of" thePrime Minister. The "advice" of thePrime Minister is binding on thePresident, whereas "consultation" isnot.

Legal Framework Order:Revival of Eighth Amend-mentThe main provisions of the LegalFramework Order (LFO) of August2002 impacting executive-legisla-ture relations are as follows:

Reviving Article 58(2) B, thePresident was once again vestedwith discretionary powers to dis-solve the National Assembly.Likewise the Governors weregiven the same discretion to dis-solve Provincial Assemblies withprior approval of the President.The National Security Councilwas created as a constitutionalbody to serve as a forum for con-sultation on strategic matters.

The President was given discre-tionary powers to appoint Chair-man Joint Chiefs of Staff Com-mittee, the three Service Chiefsand the provincial Governors.Previously, s/he was required toappoint them on the advice of thePrime Minister.

Article 260 of the Constitutiondefines "consultation" as discus-sion and deliberation which shallnot be binding on the President.


28


27

the Cabinet, which was responsibleto the Constituent Assembly.36

Despite this provision, the first Con-stituent Assembly was dissolved bythe Governor General in 1954.

The Constitution of 1956 envisageda parliamentary form of governmentwherein the executive authority wasvested in the President. The Consti-tution provided for a Cabinet ofMinisters with Prime Minister as itshead 'to aid and advise' the Presidentin the exercise of his functions. TheCabinet was collectively responsi-ble to the National Assembly. It wasalso provided that Prime Ministershall hold office during the pleasureof the President.37

The Constitution of 1962 was anexperiment in presidential systemwherein the President was to beelected independently of the legisla-ture. He/She had direct mandatefrom the electors to perform execu-tive functions of the government.Presidential elections were to beheld indirectly by an Electoral Col-lege of not less than 80,000 electors,equally distributed between Eastand West Pakistan provinces. Thelegislature functioned independ-ently of the executive. The Presidentwas also empowered to dissolve theNational Assembly. However, incase of dissolution the President toohad to quit.38

Constitution of 1973: Era of ParliamentarySovereigntyThe most significant feature of theConstitution of 1973 was an undi-luted form of parliamentary system.The President was required to act onand in accordance with the advice of

the Prime Minister, which was bind-ing on him/her. The President couldnot exercise the option to appoint amember of the National Assemblyas Prime Minister. The Prime Minis-ter became de facto Chief Executiveof the federation. However, execu-tive authority of the federation wasto be exercised in the name of thePresident by the federal governmentconsisting of the Prime Minister andFederal Ministers. The President didnot have the power to dissolve theNational Assembly, which couldonly be dissolved on the advice ofthe Prime Minister.

The President, subject to the adviceof the Prime Minister, was entrustedwith some key appointments such asthose of Chief Justices and Judgesof the Supreme Court and HighCourts, Governors of the provinces,Attorney-General and Chiefs of theArmed Forces.39

Eighth Amendment: Ero-sion of ParliamentarySovereigntyThe Eighth Constitutional Amend-ment, passed in 1985, significantlydiluted the parliamentary form ofgovernment by eroding parliamen-tary sovereignty. Earlier the Presi-dent was required to act on theadvice of the Prime Minister or Cab-inet, whereas now the Presidentcould ask the Prime Minister or theCabinet to reconsider such advice.

The President was empowered todissolve the National Assembly ather/his discretion. The Governorcould also dissolve ProvincialAssembly at his/her discretion, sub-ject to the prior approval of the

“ In the Con-stitution of 1973 thePresident, subject tothe advice of thePrime Minister, wasentrusted with somekey appointmentssuch as those ofChief Justices andJudges of theSupreme Court andHigh Courts, Gover-nors of the provinces,Attorney-Generaland Chiefs of theArmed Forces.”

FederalismFederalism is a form of politicalassociation and organization thatunites separate polities (centre andprovinces) within a more compre-hensive political system, allowingeach polity to maintain its ownfundamental political integrity.Federalism can be understood asconstitutional power sharingthrough systems that combine self-rule and shared rule. In federal sys-tems, basic policies are made andimplemented thorough negotiationso that all members share in mak-ing and executing decisions.43

Fundamental Principlesof FederalismFederal systems are based on sixfundamental principles: (1) non-centralization; (2) predispositiontowards democracy; (3) a systemof checks and balances; (4) aprocess of open bargaining; (5) awritten constitution; and (6) con-stitutionally fixed demarcations ofthe polities.44

Relations between Federation and Provinces

What is a Federation?A federation is a political system in which power is constitutionally dividedbetween the centre and the federating units or the constituent subdivisions.Federalism is a way of organizing a state so that there is a division of pow-ers between central and regional governments, each independent within apre-defined sphere. The territory of a federal state is divided into units - provinces, states, can-tons, regions, and even republics - that often coincide with distinctive geo-graphical, cultural or historic divisions of the country. Many of the institutions of government are duplicated at the national andlocal levels with both levels of government exercising effective control overthe same territory and population. Each of the two sets of governments exercises authority directly on the peo-ple; neither owes its powers to a grant of authority from the other, but to aconstitution that is superior to both. In a true federal state, both levels of government derive their powers directly


30

The LFO provided that in case ofdissolution of the Assemblies thePresident and the Governorswould appoint a caretaker govern-ment in the centre and theprovinces respectively.

The LFO also provided that 11Orders and Ordinances issued bythe incumbent military authoritieswould remain in the Sixth Sched-ule of the Constitution, and couldnot be amended without the per-mission of the President.

These included the Qualificationto Hold Public Offices Order,2002, which barred a person fromholding the office of prime minis-ter or chief minister more thantwice. It applied even in caseswhere a prime minister or chiefminister might not have com-pleted the full term of office.42

Seventeenth Constitu-tional AmendmentThe main provisions of the Seven-teenth Amendment of December 31,2003 impinging on executive-legis-lature relations are as follows:

Article 41 was amended to pro-vide for the vote of confidence forthe President (General PervezMusharraf) in place of electionsbetween the candidates, asrequired under the Constitution of1973.

The amended Article 58(2) B pro-vided that the President, in case ofdissolution of the NationalAssembly shall, within fifteen

days of the dissolution, refer thematter to the Supreme Court. TheCourt shall decide the referencewithin thirty days and that deci-sion shall be final.

Likewise a Governor, with previ-ous approval of the President,shall refer the case of dissolutionof Provincial Assembly to theSupreme Court within fifteendays of dissolution and the Courtshall decide the reference withinthirty days, and that decision shallbe final.

The discretionary powers of thePresident for the appointment ofServices Chiefs were nowwatered down by including "con-sultation" of President with PrimeMinister. Consultation with thePrime Minister, unlike advice, isnot binding on the Presidentunder Article 260 of the Constitu-tion.42

Provision of National SecurityCouncil as a constitutional bodywas omitted.


29

“ The LFOalso provided that 11 Orders and Ordi-nances issued by theincumbent militaryauthorities wouldremain in the SixthSchedule of the Con-stitution, and couldnot be amended with-out the permission ofthe President.”

Constitutional Back-groundSince 1935, the principle of feder-alism have found acceptance andinfluenced all constitutionalarrangements in the subcontinent.The Government of India Act,1935 made the provinces separatelegal entities and envisaged consti-tutional division of responsibilitiesbased on federal, provincial andconcurrent lists of subjects.

After the establishment of Pakistan,the Objectives Resolution also pro-vided for a federal form of govern-ment. In 1955 the four provinces ofWest Pakistan were merged intoOne Unit and Parity (50:50) wasdeclared between East and WestPakistan. The people of East Pak-istan and the smaller provinces ofWest Pakistan resented this iniqui-tous arrangement. Both One Unitand principle of Parity were abol-ished on July 1, 1970.

The federal form envisaged in theConstitution of 1956 was similar inmany respects to the Governmentof India Act, 1935. Three lists ofsubjects were drawn up, i.e. fed-eral, provincial and concurrent fordistribution of legislative powersbetween the centre and theprovinces. The Constitution madevery little change in distribution offinancial resources between thecentre and the provinces, whichweighed heavily in favour of thecentre. It provided for a NationalFinance Commission with the taskof making suitable recommenda-tions on distribution of the net pro-ceeds of some important taxes. Asregards administrative relationsbetween the centre and the

provinces, the federal systemshowed a marked tendency towardsunified control and authority.

The Constitution of 1962 containedthe word federation in the pream-ble, but nowhere else in the rest ofthe Constitution. It provided for amuch simpler method of distribu-tion of powers, with only one list ofsubjects of national importance; allother subjects were left to theprovinces. The President enjoyedoverriding control and supervisionover the provincial executives.Governors held actual executiveauthority in the province. TheProvincial Cabinets were responsi-ble to the Governor who, however,could appoint or remove provincialministers with the concurrence ofthe President.

Constitution of 1973The very first Article of the Consti-tution of 1973 declares Pakistan aFederal Republic. The most notabledevelopment in respect of federal-ism was the introduction of bicam-eralism46 for the first time in theconstitutional history of the coun-try, with a second chamber whereinall federating units were equallyrepresented.

Two lists of subjects were drawnup, federal and concurrent, for dis-tribution of legislative powersbetween the federation and the con-stituent units. The Constitution didnot provide for a separate provin-cial legislative list of subjects.However, Provincial Assemblieswere empowered to make laws onresiduary subjects, that is, mattersnot enumerated in either the federalor concurrent lists.


32

from the constitution and neither is able to eliminate the other's jurisdiction.In this way a federal state is distinguished from a unitary state with territo-rial sub-units (divisions, districts, etc.) that receive all of their powers by del-egation from a central government.At the other extreme, a federal system of government should be distin-guished from a confederation, or league of states, in which the central levelof government received all its powers from the member states and has noautonomous powers of its own.In case of a conflict between the centre and a provincial government, eachacting properly within its jurisdictional limits, the case is resolved in favourof the national government as the ultimate focus of sovereignty. To resolvethe dispute in favour of the constituent unit would be to convert the systeminto a confederation of sovereign states.Federalism is one of the most sophisticated systems of government everdevised because of the dual requirement of organizing national unity oncommon purposes while preserving local diversity in the same society. The success of federalism requires that the value of consensus that holdsthe federal system together must be stronger than the diversity of local val-ues that tend to pull it apart. Yet those who emphasize local values musthave demonstrated confidence that the centre will respect them. Thenecessity of balancing unity and diversity makes a federal system ratherdifficult to operate effectively.The United States of America was the first modern nation-state to adopt afederal constitution. In the nineteenth century some of the new states ofSouth and Central America (Venezuela, Colombia, Argentina, Brazil andMexico) were organized on federal lines. But federal constitutions have been of less enduring significance therethan in Switzerland (1848); Canada (1867) and Australia (1901) which,along with the United States, are the countries which have been practicingfederal constitutionalism without interruption for the longest time. In the twentieth century many of the constitutions established in theprocess of worldwide political reorganization following the two World Warshave incorporated the federal principle. Federalism has been a feature ofconstitutions adopted by many of Britain's former colonies, among them,India, Pakistan, Malaysia, and Nigeria. The balance of power and of citizen's allegiance between the two levels ofgovernment is a dynamic element in the politics of a federal state. In somefederations, the forces of centralization, especially when fostered by a sin-gle unified political party, may be so strong as to negate the autonomy ofthe local level of government. In others the forces of decentralization maybe such that they lead to the break-up of the federal state (as in the caseof British West Indian Federation). For a federal system to endure, theremust be significant independent political forces supporting each level ofgovernment.45


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“ A federalsystem of governmentshould be distin-guished from a confederation, orleague of states, inwhich the central levelof governmentreceived all its powersfrom the memberstates and has noautonomous powersof its own.”


34

Judiciary and Rights

The judiciary, as already mentioned,is one of the three principal organsof the state. It plays a pivotal role inthe enforcement of a legal regime ofrights in a country. The jurisdictionof the Supreme Court of Pakistan, asprovided in Article 184 of the Con-stitution, deals with the protection ofrights. It includes two main aspectsof rights, fundamental rights andrights of the provinces.

Fundamental RightsIf the Supreme Court considers that aquestion of public importance withreference to enforcement of any ofthe fundamental rights in chapter oneof Part II of the Constitution isinvolved, it has the power to make anorder in this regard even without fil-ing of petition by the aggrieved party.

Under Article 199, the High Courthas the power of making orders onthe application of any aggrievedperson, giving such instructions toany person or authority, includingany government (i.e. federal orprovincial), for the enforcement ofany of the fundamental rights inchapter one of Part II of the Consti-tution.

Rights of Provinces The Supreme Court has exclusivejurisdiction to adjudicate disputesbetween the federal government andthe provinces as well as amongst theprovinces themselves. This provi-sion is a constitutional mechanismfor the protection of the rights of theprovinces.

Appointment andAccountability of Judi-ciaryThe procedures relating to theappointment of judges and theiraccountability are very important inensuring an independent judiciary.The Chief Justice of the SupremeCourt of Pakistan is appointed bythe President, while other judges ofthe Supreme Court are appointed bythe President after consultation withthe Chief Justice. The Chief Justiceof the High Court is appointed bythe President in consultation withthe Chief Justice of Pakistan and theGovernor of the respectiveprovince. Other judges of the HighCourt are appointed by the Presidentin consultation with the Chief Jus-tice of Pakistan, the Governor of theprovince and the Chief Justice of theHigh Court.47

The Constitution of Pakistan pro-vides for the Supreme JudicialCouncil to look into the capacityand conduct of the judges. The Con-stitution of 1956 conferred thepower of impeachment of judges onthe Parliament. The 1962 and 1973Constitutions provide for theSupreme Judicial Council. TheCouncil consists of five judges, withthe Chief Justice of Pakistan as itsChairman, and two senior mostjudges of the Supreme Court andtwo senior most judges of the HighCourts as its members.48

Besides the National Finance Com-mission and National EconomicCouncil, the Constitution providedfor Council of Common Interestsfor the formulation and regulationof policies on matters relating toPart II of the Federal LegislativeList and Electricity on the Concur-rent List. The Council was to beappointed by the President and itsmembers comprised Chief Minis-

ters of the provinces, with an equalnumber of members from the Fed-eral Government; and the PrimeMinister as Chairman of the Coun-cil.

Amendments in Constitu-tion of 1973The manner in which the LegalFramework Order 2002 broughtabout changes in the Constitutionthrough an un-elected centralauthority militates against the fed-eral principle. The LFO and Seven-teenth Constitutional Amendmentmake local government a substan-tive part of the Constitution and alllocal government ordinances havebeen made part of the Sixth Sched-ule for six years, even though local

government has always been aprovincial subject. Likewise thePolice Order 2002 has become partof the Sixth Schedule for six years,despite the police essentially beinga provincial subject.

The Seventeenth Amendment alsoamends Article 41, providing for avote of confidence for the President(General Musharraf) by a simplemajority of the members presentand voting. In the previous votingprocedure for electing the Presidentall four provincial Assemblies weregiven equal weightage, i.e. NWFP,Sindh and Punjab Assemblies hadvotes equal to those of Balochis-tan. But the new one-time processmakes the Punjab Assemblynumerically superior to not onlythe other three provincial legisla-tures but also the National Assem-bly and the Senate. This provisionviolates the spirit of federalism andrights of the provinces.

The position of Governor in aprovince, as provided under theLFO and the Seventeenth Amend-ment, also goes against the federalprinciple. The President has theauthority to appoint provincialGovernors. The Governor has dis-cretionary power to dissolve theProvincial Assembly with theapproval of the President, althoughs/he must refer the dissolution tothe Supreme Court. S/He can alsoappoint a caretaker governmentwith the prior approval of the Pres-ident.

“ Federalism is a form ofpolitical association and organization

that unites separate polities (centre andprovinces) within a more comprehensive

political system”


33


35

Pakistan's constitutional history isreplete with innumerable problems.These problems depict a pathetic stateof rights in the country, be it theabsence of constitutional governance,an executive-dominated system oreven an overbearing central govern-ment, all of which have grave impli-cations for rights.

Pakistan's ConstitutionalMayhemThe constitution in Pakistan has eitherremained abrogated or suspended, andeven if restored, has undergone fre-quent and major changes impingingon fundamental premises on which itwas framed. Attempts to undo or dilutethe democratic order through constitu-tional engineering have underminedthe rights of the people.

The first Constituent Assemblyentrusted with framing the constitu-tion could not complete the task. Thesecond Constituent Assembly did passa constitution in 1956, but it lasted forjust two years, only to be abrogated bya military coup in 1958. The secondConstitution promulgated by AyubKhan in 1962 was abrogated in thesecond martial law by Yahya Khan in1969. The third Constitution passedby the National Assembly in 1973,and still in force, has been suspendedtwice over the past 31 years.49

There have been long spells of consti-tutional breakdowns caused by fre-quent military interventions. Thecountry witnessed four military coupsin its 57 years of existence resulting in

abrogation or suspension of the Con-stitution. Every military ruler has ulti-mately come up with either a newconstitution, as in case of GeneralAyub Khan, or has disfigured andreversed the constitutional profile ofthe country, as was done by GeneralYahya Khan and General Zia-ul-Haq,and now by General Pervez Mushar-raf.

A constitution is the basic law of acountry. Frequent amendments andtampering with its basic character cre-ate uncertainties regarding its fate andfuture course of the country. Suchuncertainties adversely affect thewhole domain of policy formulationand governance in the country, withequally negative fallout on political,social and economic development

Suspension of Fundamen-tal Rights Despite constitutional provisions onfundamental rights and their enforce-ability through the superior judiciary,a prolonged state of emergency in thecountry has resulted in the suspensionof fundamental rights and problems intheir implementation. The Constitu-tion of 1956 provided for suspensionof fundamental rights upon the procla-mation of emergency by the Presidenton account of war or internal distur-bance. The 1962 Constitution had thesame provision.

The Constitution of 1973 providesthat in case of proclamation of emer-gency the President has to specify asto which of the fundamental rights are

Conclusions: Denial ofRights and the Constitution

to be suspended when the state ofemergency is in force. The Constitu-tion also permits legislation repugnantto certain fundamental rights, such asfreedom of speech, movement,assembly, association, trade, business,or profession, and protection of prop-erty rights, during the period of emer-gency. Such laws, however, standrepealed on the revocation of theemergency.50

Some 36 years out of Pakistan's 57years of existence have passed with-out judicially enforceable fundamen-tal rights. It will be instructive to notethat these 36 years of emergency and

the absence of constitutional ruleinclude a substantial period when afunctioning Parliament existed in thecountry.

The following table provides a com-parison of the period when fundamen-tal rights have remained suspendedwith the one when rights were justi-ciable. The table covers the periodfrom August 14, 1947 to March 12,2003.

Rights of MinoritiesSeveral provisions of theConstitution, particularly itsPreamble and Articles 2A, 4, 25 and


36

Pakistan lags behind in RightsIn comparative standing on rights, Pakistan lags behind otherstates in South Asia. Pakistan's record on civil and political rightsremains questionable. Independent assessments of different SouthAsian countries over the past three decades show that Pakistanlags behind India, Sri Lanka, Bangladesh and Nepal in its state ofpolitical and civil rights. (See Appendix B)Pakistan's record in respect of signing and ratifying of interna-tional conventions on human rights is equally deficient. Accord-ing to the Human Development Report 2003, Pakistan has signedand ratified only three out of six main conventions on rights. Herealso, Pakistan is far behind Sri Lanka, Bangladesh, Nepal andIndia. (See Appendix C)

Fundamental Rights Years/Months/Days Fundamental Rights Years/Months/Dayswere enforceable were not enforceable

March 23, 1956 to 2 years, 6 months August 14, 1947 to 8 years, 7 months October 6, 1958 and 13 days March 22, 1956 and 8 daysJanuary 10, 1964 to 1 year, 7 months October 7, 1958 to 5 years, 3 months September 5, 1965 and 26 days January 9, 1964 and 2 daysAugust 14, 1974 to 2 years, 10 months September 6, 1965 to 8 years, 11 months July 4, 1977 and 20 days August 13, 1974 and 7 daysDecember 30, 1985 to 12 years, 4 months July 5, 1977 to 8 years, 5 months May 27, 1998 and 28 days December 30, 1985 and 25 days

May 28, 1998 to 4 years, 9 months March 12, 2003 and 12 days

Total Period 19 years, 5 months Total Period 36 years and and 27 days 24 days

Table: Comparative Chart on Enforceability of Fundamental Rights51


37

36 prohibit discrimination againstminorities. Yet Pakistan's record onpreservation of minority rights isopen to question. Be it the issue ofseparate electorate or blasphemylaw, minorities in Pakistan remainaggrieved on a number of issues.

A rather intriguing example is theintroduction of Article 2A throughRevival of Constitutional Order(RCO), which makes the ObjectivesResolution a substantive part of theConstitution and has been repro-duced in the Constitution's Annexwith one little change. The sixthparagraph of the original ObjectivesResolution, which is a preamble ofthe Constitution, reads:

"Wherein adequate provisionshall be made for the minoritiesfreely to profess and practicetheir religions and develop theircultures."

Surprisingly, the world "freely" isomitted in the Annex. Thus we havetwo versions of the Objectives Res-olutions in the Constitution, one as apreamble that includes the word"freely" and the subsequent one inthe Annex, which excludes it. Sinceit is the Annex that is enforceable,the minorities can understandablyfeel apprehensive on this obviousthough seemingly trivial omission.

The issue of electorate is probablythe most contentious in Pakistan'shistory. The Constitution of 1973not only provided for a joint elec-torate but also envisaged additionalseats reserved for minorities in theNational and Provincial Assemblies,to be elected by members of therespective legislatures. It was Zia-ul-Haq who introduced the systemof separate electorates for the LocalBodies elections through an amend-ment in 1979 in the Representation

of People Act, 1976. The RCO,however, gave constitutional recog-nition to the separate electorate forthe first time in Pakistan by chang-ing Articles 51 and 106, and all gen-eral elections till 1997 were held onthe basis of separate electorates.

In separate electorates, the candi-dacy and voting for non-Muslimswas separate and separate electorallists were prepared. The constituen-cies for minorities, however, werevery large and extended over theentire length of the country. Hence,it became very difficult for minoritycandidates to run an effective cam-paign. The minorities and others toohave agitated against the system ofseparate electorate, considering itdiscriminatory on the basis of reli-gion.

The system of separate electorateswas done away with on February27, 2002. The situation againchanged on June 17, 2002, with thepromulgation of the Conduct ofGeneral Elections (Second Amend-ment) Order. It inserted sections 7-Band 7-C into the original order. Sec-tion 7-B reads: "Status of Ahmadisetc. to remain unchanged."

Section 7-C states that if anybodycomplains to the Revising Authoritythat a person who "has got himselfenrolled as a voter" is not a Muslim,that person will be required to statehis (or her) "belief regarding thefinality of the Prophethood ofMuhammad (peace be upon him)."In case such a person refuses to signa declaration on this point or fails toappear before the Authority, "heshall be deemed to be a non-Muslimand his name shall be deleted fromthe joint electoral rolls and added toa supplementary list of voters in thesame electoral area as non-Muslim."The provision makes it clear that the

“ Surpri-singly, the world"freely" is omittedin the Annex.Thus we have twoversions of theObjectives Resolu-tions in the Con-stitution, one as apreamble thatincludes the word"freely" and thesubsequent one inthe Annex, whichexcludes it.”


Ahmedis are treated as they wererequired in separate electorate sys-tem.52 This Order has been includedin the Sixth Schedule of the Consti-tution through LFO 2002.

Executive-Dominated Sys-tem: Denial of PoliticalRightsSuccessive Governor Generals andPresidents have acted as de factorulers instead of playing the ceremo-nial role enjoined under parliamen-tary tradition. The vice-regal legacyof the colonial era, when non-elected Governor General wieldedall powers, has persisted after Inde-pendence. Pakistan has been oscil-lating between executive-controlledcivilian governments and militaryrule with the exception of only twoshort-lived spells of parliamentarysovereignty, during 1973-77 andthen in 1997-99.

A parliamentary form of govern-ment envisages parliamentary sov-ereignty and independence of legis-lature in which elected representa-tives determine policies of the gov-ernment. But the 1956 Constitution,the 1973 Constitution after theEighth Amendment, the LFO (2002)and the Seventeenth Amendment(2003), are devoid of parliamentarycharacter in a strict technical sense.In the 1956 Constitution, a strongPresident was operating from out-side the Parliament. The EighthAmendment, LFO and the Seven-teenth Amendment reversed theposition in favour of the President,empowering him at the cost of theelected Prime Minister and the Par-liament.

The country has been left with anexecutive-dominated political sys-tem that does not provide for theindependence and sovereignty ofthe legislature. It denies legislature

the exclusive power to elect andsupervise a functioning governmentas typically required in a parliamen-tary form of government. The sys-tem also negates a competitive andfair process of coming into power.

A number of Ordinances and Orderspromulgated in recent yearsimpinge on political rights, particu-larly the Qualification to Hold Pub-lic Offices Order, 2002. The Order,now part of the Sixth Schedule ofthe Constitution, bars a person fromholding the office of prime ministeror chief minister more than twice. Itapplies even to cases where a primeminister or chief minister might nothave completed the full term ofoffice. The number of times a per-son becomes a prime minister is,indeed, for the people of Pakistan todecide. Many prominent leadersaround the world have held theoffice of prime minister more thantwice. Both Jawaharlal Nehru andMargaret Thatcher won three con-secutive terms. Likewise, IndiraGandhi in India, Mahathir Moham-mad in Malaysia, SuleymanDemirel in Turkey and Lee KwanYew in Singapore have held multi-ple terms in office.

Federalism and Rights of ProvincesProblems relating to federalism inPakistan have remained fairly com-plex and thorny. The issue of rightsof the provinces has been on thepublic agenda since the inception ofthe country. But constitutionalschemes propounded by successiveregimes have not satisfied the peo-ple of the smaller provinces, whohave been demanding provincialautonomy and rights of federatingunits.

In this regard two points are particu-larly important. First, the provincial

“The country has beenleft with an execu-tive-dominatedpolitical systemthat does not provide for theindependence andsovereignty of the legislature.”

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governments and legislatures havebeen established and controlled bythe centre; and second, the distri-bution of legislative, financial andadministrative powers betweenthe federation and the units hasclearly been tilted in favour of thecentre.It is the centre that primarilydefines federalism in Pakistan,often at the cost of provincialautonomy. The federation itselfhas been controlled by the execu-tive, thus the centre and executiveare often structurally one and thesame. National and Provincial leg-islatures, whether under a parlia-mentary or a presidential system,derive their authority from theConstitution but their real power,in Pakistan's case, lie in the extra-parliamentary, and generally, un-elected executive. Thus problemsassociated with legislative auton-omy and provincial autonomy,despite being two completely dif-ferent concepts, have the samelocu.53

Aside from the constitutionaldesign, there is the problem ofimplementation of constitutionalprovisions. For example, the Con-stitution provides for the Councilof Common Interests, the NationalFinance Commission and theNational Economic Council, butthese statutory bodies have notbeen successful in terms of devis-ing policies and taking decisionsaimed at reducing tension betweenthe Federation and the units.Independence and Pre-dictability of Judiciary

The independence of the judiciaryis not only important for a stablepolitical system but also for theenforcement of rights in a country.

In this regard, Pakistan inherited ahealthy judicial system with a rep-utation for integrity and compe-tence. This is mainly attributableto a fair system of appointment ofjudges wherein appointmentswere generally made on merit.54

Unfortunately, after the establish-ment of Pakistan, state functionar-ies corrupted the system ofappointments during the succes-sive regimes.55 This degenerationhas had negative implications forthe independence of the judiciaryand rule of law in the country.The predictability of the judiciaryis also important for the rule oflaw.56 The record of Pakistan'ssuperior judiciary on this count,however, is unenviable. Of thefour military takeovers in the last57 years, the judiciary justified the1958, 1977 and 1999 coups onground of state necessity anddeclared the takeover of only 1969as unlawful and usurpatory. Ninelegislative assemblies out oftwelve have been dissolved so farand all dissolution orders werechallenged before the superiorjudiciary. It is pertinent to notethat six of these orders were justi-fied and only three were declaredunconstitutional. Within a span ofnine years from 1988 to 1997,four national assemblies were dis-solved. Their dissolution orderswere challenged before the judici-ary, which justified the 1990 and1996 dissolutions but did not jus-tify the 1988 and 1993 dissolu-tions. (Appendix D)This phenomenon points to theunpredictable nature of the judi-cial outcome of constitutionalpetitions of very significantnature, which impact upon thefuture course of the country.


39

“ The independence of thejudiciary is not onlyimportant for a stablepolitical system but also for theenforcement of rightsin a country.”

Partition Plan announced by British Government 3 June 1947 Independence Act passed by British Parliament 18 July 1947First Constituent Assembly came into being 26 July 1947Inaugural Session of First Constituent Assembly 10 August 1947Quaid-i-Azam elected President of Constituent Assembly 11 August 1947Appointment of Constitutional Committee on Fundamental 12 August 1947Rights of Citizens and Rights of MinoritiesTransfer of Power ceremony held in Karachi 14 August 1947Objective Resolution adopted by Constituent Assembly 12 March 1949Basic Principles Committee appointed by Constituent Assembly 12 March 1949Report of Basic Principles Committee presented 22 December 1952in Constituent Assembly Dissolution of First Constituent Assembly 24 October 1954Indirect Elections for Second Constituent Assembly 25 May 1955West Pakistan Act passed 30 September 1955Constitution of 1956 passed 29 February 1956Constitution of 1956 promulgated 23 March 1956First Martial Law imposed by General Ayub Khan; 7 October 1958Dissolution of Second Constituent Assembly; Abrogation of the Constitution of 1956Basic Democracies Order 27 October 1959First Basic Democracy Elections January 1960General Ayub elected President (indirectly) 14 February 1960Constitution of 1962 announced 1 March 1962Indirect Elections held for Third Legislative Assembly 28 April 1962First Session of Third Legislative Assembly 8 June 1962Presidential Elections (indirect) 2 January 1965Indirect Elections for Fourth Legislative Assembly 21 March 1965First Session of Fourth Legislative Assembly 12 June 1965Sheikh Mujeeb-ur-Rehman announced Six Points 5 February 1966Second Martial Law imposed by Yahya Khan; 25 March 1969Constitution of 1962 abrogated; Fourth Legislative Assembly dissolvedFirst General Elections on the basis of Adult Franchise 7 December 1970Military Action in East Pakistan 25 March 1971

Chronology of Constitutional and Political Development


40

Fall of Dacca 16 December 1971General Yahya Khan resigned; 20 December 1971Zulfiqar Ali. Bhutto took over as President and Chief Martial Law AdministratorFirst Session of Fifth National Assembly 14 April 1972Interim Constitution passed by National Assembly 17 April 1972Appointment of Constitutional Committee by National Assembly 17 April 1972Supreme Court declared Yahya Khan's 20 April 1972Martial Law IllegalMartial Law lifted; Interim Constitution of 1972 enforced 21 April 1972Draft Report of Constitution presented in National Assembly 31 December 1972Constitution of 1973 passed 10 April 1973Constitution of 1973 assented to by President 12 April 1973First ever Session of the Senate of Pakistan 6 August 1973Constitution of 1973 enforced 14 August, 1973First Constitutional Amendment passed 25 April 1974Second Constitutional Amendment passed 7 September 1974Third Constitutional Amendment passed 12 February 1975Fourth Constitutional Amendment passed 17 November 1975Fifth Constitutional Amendment passed 8 September 1976Sixth Constitutional Amendment passed 23 December 1976Fifth National Assembly dissolved on advice of Prime Minister 10 January 1977General Elections for Sixth National Assembly 7 March 1977First Session of Sixth National Assembly 26 March 1977Seventh Constitutional Amendment passed 16 May 1977Third Martial Law imposed by General Zia; 5 July 1977Constitution of 1973 suspended; Sixth Legislative Assembly and First Senate dissolved Provisional Constitutional Order issued 24 March 1981Formation of Majlis-e-Shoora (Federal Council) 24 December 1981Referendum by General Zia 19 December 1984Non-Party based General Elections 25 February 1985Revival of Constitution Order promulgated 2 March 1985 First Session of Seventh National Assembly 20 March 1985First Session of Second Senate 21 March 1985Eighth Constitutional Amendment passed 31 October 1985Third Martial Law lifted 30 December 1985Ninth Constitutional Amendment passed by Senate 8 July 1986Tenth Constitutional Amendment passed 18 March 1987Dissolution of Seventh National Assembly 29 May 1988General Elections 16 November 1988First Session of Eighth National Assembly 30 November 1988


41

No-Confidence Motion against 1 November 1989Prime Minister Benazir Bhutto defeated Eleventh Constitutional Amendment introduced in Senate 31 December 1989Dissolution of Eighth National Assembly 6 August 1990General Elections 24 October 1990First Session of Ninth National Assembly 3 November 1990Twelfth Constitutional Amendment passed 20 July 1991Dissolution of Ninth National Assembly 18 April 1993First ever Restoration of Legislative Assembly 26 May 1993by Supreme CourtNinth Legislative Assembly again dissolved on the advice 18 July 1993of Prime MinisterGeneral Elections 6 October 1993First Session of Tenth National Assembly 15 October 1993Dissolution of Tenth National Assembly 5 November 1996General Elections 3 February 1997First Session of Eleventh National Assembly 15 February 1997Thirteenth Constitutional Amendment passed 1 April 1997Fourteenth Constitutional Amendment passed 1 July 1997Fifteenth Constitutional Amendment passed 9 October 1998in National Assembly Emergency declared 28 May 1998Joint Sitting of Parliament passed 10 June 1998Resolution Ratifying EmergencySixteenth Constitutional Amendment passed 27 July 1999Fourth Military Coup led by General Pervez Musharraf 12 October 1999Provisional Constitutional Order (PCO) 1 of 1999 issued; 14 October 1999 PCO suspended the Constitution, suspended Eleventh National Assembly and Second Senate, and declared State of EmergencySupreme Court validated take-over 12 May 2000Chief Executive General Pervez Musharraf assumes office 20 June 2001of President; dissolution of Eleventh National Assembly and Second SenateReferendum by General Musharraf 30 April 2002Legal Framework Order promulgated 21 August 2002General Elections 10 October 2002Partial Revival of the Constitution; 16 November 2002First Session of Twelfth National Assembly Election of Prime Minister 21 November 2002Senate Elections 24 & 27 Feb. 2003Complete Revival of Constitution; First Session of Third Senate 12 March 2003Seventeenth Constitutional Amendment passed 30 December 2003


42

1 Encyclopedia Britannica (Macropaedia), "Constitutional Law", William BentonPublisher, University of Chicago, 1980. p. 84.

2 Ibid., p. 93.

3 Ibid., p. 94.

4 UNDP Human Development Report: Human Rights and Human Development,Oxford University Press, New York, 2000. p. 114.

5 World Bank, "Introduction", Development and Human Rights: The Role of WorldBank, World Bank, Washington D.C., 1998.

6 UNDP, "Foreword", Human Development Report: Human Rights and HumanDevelopment, Oxford University Press, New York, 2000.

7 UNDP Human Development Report: Human Rights and Human Development,Oxford University Press, New York, 2000. p. 56.

8 Amartya Sen, Development as Freedom, Oxford University Press, Oxford, 1999.p. 4.

9 Ibid., p.5.

10 World Bank Governance Indicators quoted in UNDP Human DevelopmentReport: Deepening Democracy in Fragmented World, Oxford University Press,New York, 2002. p. 37.

11 UNDP Human Development Report: Deepening Democracy in FragmentedWorld, Oxford University, New York, 2002. p.4.

12 Ibid., p.4.

13http://www.freedomhouse.org/rese14 arch/freeworld/2003/methodology.htm

14http://www.freedomhouse.org/research/freeworld/2003/methodology.htm



17UNDP Human Development Report: Deepening Democracy in FragmentedWorld , Oxford University, New York, 2002. p. 67.

Notes and References


43

18Hamid Khan, Constitutional and Political History of Pakistan, Oxford UniversityPress, Karachi, 2002. pp. 31-34.

19 Ibid., p. 40.

20G.W. Choudhry, Constitutional Development in Pakistan, Longman Group Ltd.,London, 1969. p. 23.

21Ibid., p. 35.

22Constituent Assembly of Pakistan Debates, Karachi, 1949, Vol. V. No 5, 100-1.

23Government of Pakistan, Ministry of Law, Constitution of the Islamic Republic ofPakistan, 1973. Article 6.

24Muhammad Munir, Justice, A Commentary on the Constitution of Islamic Repub-lic of Pakistan, 1973, PLD Publishers, Lahore, 1973. p. 215.

25"Province of East Pakistan versus Muhammad Mehdi Ali Khan and Others", PLD1959, SC. (Pak) cited in Rizvi, Syed Shabbar Raza. Constitution of Islamic Repub-lic of Pakistan with a Commentary, Nadeem Law Book House, Lahore, 1992. p.29.

26"Abul A'la Moududi v. Government of West Pakistan" PLD 1964 SC 673 andalso Observations of Lord Coke in Lady Bonham's Case, 77 E.R. P-638 cited inRizvi, Syed Shabbar Raza. Constitution of Islamic Republic of Pakistan with aCommentary, Nadeem Law Book House, Lahore, 1992. p. 29.

27 Ibid.

28Muhammad Munir, Justice, A Commentary on the Constitution of Islamic Repub-lic of Pakistan, 197, PLD Publishers, Lahore. pp. 217-218.

29G.W. Choudhry, Constitutional Development in Pakistan, Longman Group Ltd.,London, 1969. p. 21

30Hamid Khan, Constitutional and Political History of Pakistan, Oxford UniversityPress, Karachi, 2002. p. 910.

31 Ibid., p. 911.

32 Ibid.

33 Seymour Martin Lipset, ed., The Encyclopedia of Democracy. Vol. 3, Routledge,


44

London, 1995. p. 911.

34 Ibid., p. 911.

35Juan J. Linz. "Parliamentarism and Presidentialism ", adopted from Lipset, Sey-mour Martin. (ed.) The Encyclopedia of Democracy, London: Routledge, 1995. pp.910-13.

36G.W. Choudhry, Constitutional Development in Pakistan, Longman Group Ltd.,London, 1969. pp. 29-32.

37Government of Pakistan, Constitution of Islamic Republic of Pakistan, Govern-ment of Pakistan, 1956. Article 37(6).

38G.W. Choudhry, Constitutional Development in Pakistan, Longman Group Ltd.,London, 1969. pp. 188-212.

39Hamid Khan, Constitutional and Political History of Pakistan, Oxford UniversityPress, Karachi, 2002. pp. 493.

40 Ibid., pp. 677.

41The Gazette of Pakistan, Government of Pakistan, Islamabad, August 21, 2002.

42The Gazette of Pakistan, Government of Pakistan, Islamabad, December 31,2003.

43Seymour Martin Lipset, ed., The Encyclopedia of Democracy, Vol. 2, Routledge,London, 1995. pp. 474-5.

44Ibid., pp. 476.

45Based on the piece on Federalism by Peter H. Russell, University of Toronto inAdam Kuper and Jessica Kuper (editors), The Social Science Encyclopedia, repro-duced for the Serivces Book Club by Wajidalis (Private) Limited, Lahore, 1989, p.297 and Jack C. Plano & Roy Olton, The International Relations Dictionary, Holt,Rinehart and Winston, Inc., New York, 1969. pp. 181-182.

46Bicameralism is a type of legislature, which has two chambers, the upper houseand the lower house. The upper house in federal systems is also known as federalchamber because it represents the constituent units of the federation.

47Hamid. Khan, Constitutional and Political History of Pakistan, Oxford Univer-sity


45

Press, Karachi, 2002. p. 869.

48 Ibid., p. 874.

49The Constitution of 1973 has remained suspended from July 5, 1977 to Decem-ber 30, 1985, and again from October 14, 1999 to March 12, 2003.

50Hamid. Khan, Constitutional and Political History of Pakistan, Oxford UniversityPress, Karachi, 2002. p. 911.

51The table is a modified and updated version of the table cited in Hamid Khan'sbook, Constitutional and Political History of Pakistan.

52I.A. Rehman, " Joint Electorate? Not Quite", DAWN, Islamabad. September 17,2002.

53Paula R. Newberg, Judging the State: Courts and Constitutional Politics in Pak-istan, Cambridge University Press, Cambridge, 1995, p. 28.

54Hamid Khan, Constitutional and Political History of Pakistan, Oxford UniversityPress, Karachi, 2002. p. 869.

55Ibid., p. 870.

56World Bank Governance Indicators cited in UNDP Human Development Report,Deepening Democracy in Fragmented World, Oxford University, New York, 2002.p. 37


46

Choudhry, G.W., Constitutional Development in Pakistan, Longman GroupLtd., London, 1969.

Consumer Unity and Trust Society, Access to the Constitution: ANeglected Right, India, 1995.

Finer, S.E., Bogdanor, V., and Rudden, B, Comparing Constitutions,Oxford University Press, New York, 1995.

Kurian, George Thomas, Ed. World Encyclopaedia of Parliaments andLegislatures, Fitzroy Dearborn Publishers, Chicago, 1998.

Government of Pakistan, Ministry of Law, Constitution of the IslamicRepublic of Pakistan. 1973. (Different editions)

Government of Pakistan, Constitution of Pakistan, 1956.

Government of Pakistan, Constitution of Pakistan, 1962

Jalal, Ayesha, Democracy and Authoritarianism in South Asia: A Compar-ative and Historic Perspective, Cambridge University Press, Cambridge,1995.

Khan, Hamid, Constitutional and Political History of Pakistan, OxfordUniversity Press, Karachi, 2002.

Lipset, Seymour Martin, (Ed.), The Encyclopaedia of Democracy, Rout-ledge, London, 1995.

Munir, Muhammad, Justice,. A Commentary on the Constitution ofIslamic Republic of Pakistan, 1973, PLD Publishers, Lahore.

Rabbani, S.A. Amendments in the Constitution of 1973 of Islamic Repub-lic of Pakistan, National Assembly of Pakistan, Islamabad, 1999.

Rizvi, Syed Shabbar Raza, Constitution of Islamic Republic of Pakistanwith a Commentary, Nadeem Law Book House, Lahore, 1992.

Suggested Readings


47

Sen, Amartya, Development as Freedom, Oxford University Press,Oxford, 1999.

UNDP. Human Development Report, Human Rights and Human Develop-ment, Oxford University Press, New York, 2000.

UNDP. Human Development Report; Deepening Democracy in a Frag-mented World, Oxford University Press, New York, 2002.

UNDP Annual Human Development Report. 2003, Millennium Develop-ment Goals; a Compact Among Nations to End Human Poverty, OxfordUniversity Press, New York, 2003.

Washbrook, David, 'The Rhetoric of Democracy and Development in LateColonial India', cited in Nationalism, Democracy and Development: Stateand Politics in India, Sugata Bose and Ayesha Jalal, eds., Oxford Univer-sity Press, Delhi, 1998.

Wilder, Andrew R., The Pakistani Voter: Electoral Politics and VotingBehaviour in the Punjab, Oxford University Press, Karachi, 1999.

World Bank. "Introduction", Development and Human Rights: The Roleof World Bank, World Bank, Washington D.C., 1998.


48

Serial Title of the Amendment Passed by Passed by Assented No. National Senate to by the Remarks

Assembly President

1 First Constitutional Amendment Act, 1974 23-04-1974 25-04-1974 4-05-1974 The amendment became an Act of Parliament2 Second Constitutional Amendment Act, 1974 7-09-1974 7-09-1974 17-09-1974 The amendment became an Act of Parliament3 Third Constitutional Amendment Act, 1975 12-02-1975 12-02-1975 13-02-1975 The amendment became an Act of Parliament4 Fourth Constitutional Amendment Act, 1975 14-11-1975 17-11-1975 21-11-1975 The amendment became an Act of Parliament5 Fifth Constitutional Amendment Act, 1976 5-09-1976 8-09-1976 13-09-1976 The amendment became an Act of Parliament6 Sixth Constitutional Amendment Act, 1976 22-12-1976 23-12-1976 31-12-1976 The amendment became an Act of Parliament7 Seventh Constitutional Amendment Act, 1977 16-05-1977 16-05-1977 16-05-1977 The amendment became an Act of Parliament8 Eighth Constitutional Amendment Act, 1985 16-10-1985 31-10-1985 9-11-1985 The amendment became an Act of Parliament9 Ninth Constitutional Amendment Bill, 1986 8-07-1986 The Bill was considered in the National Assembly

but lapsed due to dissolution on 29.5.1988 10 Tenth Constitutional Amendment Act, 1987 12-03-1987 18-03-1987 25-03-1987 The amendment became an Act of Parliament11 Eleventh Constitutional Amendment Bill, 1989 The Bill was moved in the Senate on 31-12-1989

and subsequently withdrawn by the movers on 23-8-1992

12 Twelfth Constitutional Amendment Act, 1991 18-07-1991 20-07-1991 27-07-1991 The amendment became an Act of Parliament13 Thirteenth Constitutional Amendment Act, 1997 1-04- 1997 1-04-1997 3-04-1997 The amendment became an Act of Parliament14 Fourteenth Constitutional Amendment Act, 1997. 1-07- 1997 30-06-1997 3-07-1997 The amendment became an Act of Parliament15 Fifteenth Constitutional Amendment Bill, 1998 9-10- 1998 The Bill was not passed by the Senate16 Sixteenth Constitutional Amendment Act, 1999 27-07-1999 3-06-1999 3-08-1999 The amendment became an Act of Parliament17 Seventeenth Constitutional Amendment 29-12-2003 30-12-2003 31-12-2003 The amendment became an Act of Parliament

Act, 2003.

Appendix AAmendments in the Constitution of 1973

Source: The data for the table has been gathered from different sources. For further details of the amendments, See S.A. Rabbani, Amendments in theConstitution of 1973 of Islamic Republic of Pakistan, National Assembly ofPakistan, Islamabad, 1999, and The News, Islamabad. August 22, 2002.


49


50

There have been independent assessments of the state of rightsin various countries of the world. The New York based think-tank, Freedom House, has been assessing the state of politicalrights and civil liberties annually since 1972. The assessmentassigns values to each of the categories of the political rightsand civil liberties. On the basis of this valuation, countries areannually designated into three categories, i.e. Free, Partly Freeand Not Free. The tables on the following pages show the year-wise designations that seven countries of South Asia have beenassigned.

Appendix BTable: State of Political and Civil Rights in South AsiaFrom 1972 to 2002

Year Bangladesh Bhutan India Maldives Nepal Pakistan Sri Lanka1972-73 Partly Free Partly Free Free Free Not Free Partly Free Free1973-74 Partly Free Partly Free Free Free Not Free Partly Free Free1974-75 Partly Free Partly Free Free Free Not Free Partly Free Free1975-76 Not Free Partly Free Partly Free Partly Free Not Free Partly Free Partly Free1976-77 Partly Free Partly Free Partly Free Partly Free Not Free Partly Free Free1977-78 Partly Free Partly Free Free Partly Free Not Free Partly Free Free1978-79 Partly Free Partly Free Free Partly Free Not Free Partly Free Free1979-80 Partly Free Partly Free Free Partly Free Partly Free Not Free Free1980-81 Partly Free Partly Free Free Partly Free Partly Free Not Free Free1981-82 Partly Free Partly Free Free Partly Free Partly Free Not Free Free1982-83 Partly Free Partly Free Free Partly Free Partly Free Not Free Free1983-84 Partly Free Partly Free Free Partly Free Partly Free Not Free Partly Free1984-85 Partly Free Partly Free Free Partly Free Partly Free Not Free Partly Free1985-86 Partly Free Partly Free Free Partly Free Partly Free Partly Free Partly Free1986-87 Partly Free Partly Free Free Partly Free Partly Free Partly Free Partly Free1987-88 Partly Free Partly Free Free Partly Free Partly Free Partly Free Partly Free1988-89 Partly Free Partly Free Free Not Free Partly Free Partly Free Partly Free1989-90 Partly Free Partly Free Free Not Free Partly Free Partly Free Partly Free1990-91 Partly Free Partly Free Free Not Free Partly Free Partly Free Partly Free1991-92 Free Partly Free Partly Free Not Free Free Partly Free Partly Free1992-93 Free Not Free Partly Free Not Free Free Partly Free Partly Free1993-94 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free1994-95 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free1995-96 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free1996-97 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free1997-98 Partly Free Not Free Partly Free Not Free Partly Free Partly Free Partly Free1998-99 Partly Free Not Free Free Not Free Partly Free Partly Free Partly Free1999-00 Partly Free Not Free Free Not Free Partly Free Not Free Partly Free2000-01 Partly Free Not Free Free Not Free Partly Free Not Free Partly Free2001-02 Partly Free Not Free Free Not Free Partly Free Not Free Partly FreeTotal Years F= 2 F= 0 F= 21 F= 3 F= 2 F= 0 F=10for three PF= 27 PF=20 PF= 9 PF=13 PF= 21 PF= 21 PF=20designated NF= 1 NF=10 NF=0 NF= 14 NF= 7 NF= 9 NF=0categories

F: FreePF: Partly FreeNF: Not Free

Source: The data has been compiled and calculated from the Annual Surveysof Freedom House, available at www.freedomhouse.com.

Freedom House data for the last thirty years, from 1972 to 2002, hasbeen used to quantify and to make a ranking of the political and civilrights profiles of South Asian countries. The table shows the number ofyears in all three categories for each country. The years have beenquantified by assigning separate values for different categories and onthe basis of this valuation, a ranking of the countries has been made.


51


52

Table: Comparative Profile of Political and Civil Rights inSouth Asia 1972 to 2002

Country Free Party Free Not Free RankingIndia 21 9 0 1Sri Lanka 10 20 0 2Bangladesh 2 27 1 3Nepal 2 21 7 4Pakistan 0 21 9 5Bhutan 0 20 10 6Maldives 3 13 14 7

The table clearly shows that Pakistan lags not only behind India and SriLanka, but also Bangladesh and Nepal. There is not a single year in thelast 30 years' history of the country when Pakistan has been designatedas "Free". Bhutan is the only other country in the region which sharesthe same status with Pakistan. It is, indeed, a sad reflection on the stateof political and civil rights in the country.

International Conventions on Human Rights

International Convention on the Elimination of A B A A A A AAll Forms of Racial Discrimination (1965 )International Covenant on Civil and A C A C A C APolitical Rights (1966)International Covenant on Economic, A C A C A C ASocial and Cultural Rights (1966)Convention on the Elimination of All Forms of A A A A A A ADiscrimination Against Women (1979)Convention Against Torture and other Cruel, A C B C A C AInhuman or Degrading Treatment or Punishment (1984 )Convention on the Right of the Child (1989) A A A A A A ARanking 1 4 2 3 1 3 1

Appendix CStatus of Major International Human Rights InstrumentsComparative Profile of South Asia

BangladeshBhutanIndia

MaldivesNepal

PakistanSri Lanka

A: Signature and Ratification of ConventionB: Signature not yet followed by ratificationC: Not even signed

Note: The quantification and ranking are based on the data available inUNDP Annual Human Development Report. 2003. Millennium Devel-opment Goals; A Compact Among Nations to End Human Poverty,Oxford University Press, New York, 2003. P.P. 331-334.


53


54

Event Date Judicial ResponseFirst Constituent Assembly 24-10-1954 Supreme Court upheld the dissolved dissolution order of Governor

General Ghulam Muhammad in Moulvi Tamizuddin Case. (1955)

First Martial Law; 7-10-1958 Supreme Court referring to Second Constituent the doctrine of necessity justified Assembly dissolved the military take-over of

General Ayub in Dosso Versus State Case. (1958)

Second Martial Law; 25-3-1969 Supreme Court declared the Fourth Legislative military take over as unlawful Assembly dissolved in Asma Jilani Case. (1972)Third Martial Law; 5-7-1977 Supreme Court again referred to Sixth National Assembly the doctrine of state necessity and and Senate dissolved justified the military take over

in Nusrat Bhutto Case. (1977) Seventh National 29-5-1988 Supreme Court declared the Assembly dissolved dissolution unjustified but did not

grant relief in Haji Saifullah Case. (1988)

Eighth National 6-8-1990 Supreme Court justified the Assembly dissolved dissolution in

Khawaja Tariq Rahim Case. (1990)Ninth National 18-4-1993 Supreme Court declared the Assembly dissolved dissolution unconstitutional in

Nawaz Sharif Case. (1993)Tenth National 5-11-1996 Supreme Court justified the Assembly dissolved dissolution in Benazir Bhutto Case.

(1997 )Fourth Martial Law; 12-10-1999 Supreme Court once again justified Eleventh National Assembly military take-over in and Senate suspended Zafar Ali Shah Case. ( 2000 )

Appendix DJudicial Response to Military Coups and Dissolution of Parliaments

Note: Data has been compiled from different sources.

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