Month: April 2021

THE CONSTITUTION (FOURTEENTH AMENDMENT) ACT, 1997

ACT XXIV OF 1997

[Gazette of Pakistan, Extraordinary, Part I,
4th July, 1997]

An Act further to amend the Constitution of
the Islamic Republic of Pakistan

No. F.22(104)/97-Legis.-The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on the 3rd July, 1997 and is hereby published for general information:-

Whereas it is expedient further to amend the Constitution of the Islamic Republic of Pakistan in order to prevent instability in relation to the formation of functioning of Government;

It is hereby enacted as follows:-

1. Short title and commencement.-(1) This Act may be called the Constitution (Fourteenth Amendment) Act, 1997.

(2) It shall come into force at once.

2. Addition of new Article 63A in the Constitution.-In the Constitution of the Islamic Republic of Pakistan after Article 63 the following new Article shall be inserted, namely:-

“63A Disqualification on ground of defection, etc.-(1) If a member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the Political Party or such other person as may be authorised in this behalf by the Head of the Political Party, be called upon the show cause, within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice is issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly.

Explanation.-A member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee of a political party, or under a symbol of political party or having been elected otherwise than as a candidate or nominee of a political party, and having become a member of a political party after such election by means of a declaration in writing-

(a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies, or

(b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or

(c) abstains from voting in the House against party policy in relation to any Bill.

(2) Where action is proposed to be taken under the Explanation to clause (1), sub-clause (a), the disciplinary committee of the party, on a reference by the Head of the Party, shall decide the matter, after giving an opportunity of a personal hearing to the member concerned within seven days. In the event the decision is against the member, he can file an appeal, within seven days, before the Head of the Party, whose decision thereon shall be final, in cases covered by the Explanation to clause (1), sub-clauses (b) and (c), the declaration may be made by the Head of the Party concerned after examining the explanation of the member and determining whether or not that member has defected.

(3) The Presiding Officer of the House shall be intimated the decision by the Head of the Political Party in addition to intimation which shall also be sent to the concerned member. The Presiding Officer shall within two days transmit the decision to the Chief Election Commissioner. The Chief Election Commissioner, shall give effect to such decision, within seven days from the date of the receipt of such intimation by declaring the seat vacant and amend it under the schedule of the bye-election.

(4) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.

(5) For the purpose of this Article-

(a) “House” means the National Assembly or the Senate, in relation to the Federation, and the Provincial Assembly in relation to the Province, as the case may be.

(b) “Presiding Officer” means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercising any jurisdiction, or make any order in relation to the action under this Article.”

FRAME-2
Per Muhammad Aqil Mirza, J.(a) Constitution of Pakistan (1973) Art. 8, 25
r/w Prospectus of the University of Engineering and Technology, Lahore—Para 43.3—
The legal controversy can be looked at from another angle also. The interpretation of the construction of the word father as occurring in para. 43.3. of the Prospectus referred to above if used in a restricted sense by not including mother in it, would make it violative of Article 25 of the Constitution. This article provides as follows:-
“1- All citizens are equal before the law and are entitled to equal protection of law.

2- There shall be no discrimination on the basis of sex alone.

3- Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.”
[p. 602]C
In the context, of the controversy involved in this case, it may be stated that father and mother both are entitled for the care and well-being of their children. The mother is equally to see that her child gets the best possible education, subject to merit. Similarly the child is also entitled to utilize the benefit of the status of either of his parents. There cannot be discrimination in the exercise of these rights on the basis of sex alone. Recognition of father’s domicile status to the exclusion of that of the mother will be a case of clear discrimination based on sex, which is not permitted by Article 25 of the Constitution. Provisions of the Prospectus which are inconsistent with the fundamental right governed by Article 25 (ibid) will have to be declared void by virtue of Article 8 of the Constitution which provides that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the Fundamental Rights to the extent of inconsistency shall be void.[p 602]D
All efforts are to be made to interpret the provisions of law including rules and instructions in such a way that they harmonise with the fundamental rights guaranteed by the Constitution. I have already held that father as occurring in para. 43(b) of the Prospectus includes mother. In view of this interpretation there is no need to declare that the said provisions of the Prospectus are void. The result is that a mother can get his child admitted in an educational institution on her own independent domicile. This can be done even where the wife is living with the husband, if no account of independent factors she has a distinct and separate place of domicile. For example, a male resident of Karachi may have married a lady from the Punjab. The spouses may be having their separate vocations and even owning property separately in their respective Provinces. The spouses in such circumstances may be differently domiciled. The child is entitled to seek admission in any of the two Provinces by getting benefit or the domicile of either of the parents. If he wants to get admission in a college in Punjab he can get the benefit of the domicile of his mother and if he wants to get admission in Sindh he can get the benefit of the domicile of his father.[p. 603]E.
Independent of the facts of the present case, I find that the requirement to produce documentary proof of the factum of registration proof of the factum of registration of the father as a voter cannot be a compulsory condition. It may be pointed out that out that no law provides that if a person is not registered as a voter then his children shall not be considered to be domicile of the place of residence of their father (including mother). If a person is not registered as a voter, then the only consequence under the relevant election laws is that he is deprived of casting his vote and to contest election. There is no law, which disentitles the child or children of such a person who is not registered as a voter to seek admission in Colleges and Universities. Article 4 of the Constitution provides as follows:-
“(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular—
(a) —————————————————————-

(b) —————————————————————-

(c) —————————————————————-
Right to get admission in colleges and higher seats of learning is a valuable right, which is relatable to the life of a citizen. If a person who is otherwise eligible is prevented from receiving higher education, then it will amount to affect quality of his life. Under Article 4 reproduced above no such detrimental action can be taken unless specifically permitted by law. Therefore, in the absence of any law providing that a person who does not get himself registered as a voter in an electoral roll shall have the effect of depriving his/her children to obtain admission in colleges, it cannot be held that insistence on production of proof with regard to the registration of as parent of an applicant as a voter has any validity in law. Clauses (ii) and (iii) of Para.(b) (ibid) which relate to the proof of registration of the father as a voter would be violative of Article 4 the Constitution if these provisions are considered compulsory. Resultantly, I declare that clause (ii) and (iii) of para 43.2(b) are not compulsory. If an applicant produces these documents, well and good, and the same can be considered to determine the bona of residence of the applicant, but if an applicant fails to produce such documents then this application cannot be refused to be entertained or admission refused merely for non-production of these documents. The question of bona fides of residence/domicile of the applicant shall be determined on the basis of other material produced by the applicant. [p. 603, 604]F,G
It may be pointed out that right to knowledge or right to receive education, subject to eligibility and availability of accommodation in educational institutions is a basic right of every citizen. This is the right of the individual who seeks admission in an institution or seat of learning. This is not the right of his parents or anybody else. Therefore, any lapse on the part of a parent should not be allowed to come in the way of the individual desiring to get education, provided will be relevant for determining the domicile of the applicant and for nothing else.[p. 604]H.

The Constitution is the touchstone of our nation.
-the measure for constitutionalism and judicial review.

The Constitution (Eighteenth Amendment) Act, 2010 marks a watershed in our constitutional history. A legacy of dictatorship, the Constitution (Seventeenth Amendment) Act, 2003, was repealed and about a hundred, major and minor, changes were made in the ‘Basic Law’ of the land.

Today, as envisaged in the Constitution in 1973 and at least in theory, the Prime Minister is again the chief executive of the Federation and the President is the titular Head of State, denuded of the draconian unfettered power to dissolve the National Assembly and call fresh elections. A legacy of the ‘British Raj’ has also been disowned, in renaming the N.W.F.P. as the Province of Khyber Pakhtunkhwa.

The chapter on fundamental Rights now has a salutary reaffirmation of the ‘Right to fair trial’ for the enforcement of civil liberties and the safeguard of the system of criminal justice in Pakistan. Every citizen has now also been granted the ‘Right to information’ in all matters of public importance and the ‘Right to education’ up to the age of sixteen. In view of the failure of successive governments to ensure and allocate funds for enforcement of Fundamental Rights, it is imperative that public spirited persons take it upon themselves to initiate public interest litigation in order to bring home to the people the real benefits of these new civil rights.

Article 6, relating to High treason, was appropriately amended in order to avoid the possibility of Marital Law and unconstitutional dispensations in the future. The Article now provides that even a person who holds the Constitution in abeyance, — a disingenuous stratagem, used by collaborators in the past, to avoid culpability for subversion of the Constitution- shall be guilty of High treason and no Court shall validate such an act.

In order to ensure the appointment of independent persons of demonstrated integrity as judges of the Superior Courts a consensus based mechanism has been adopted in new Article 175A of the Constitution. The Judicial Commission of Pakistan shall first nominate the judges. Thereafter a Parliamentary Committee, setup under the said Article as well, may within fourteen days, by vote of a majority of its members, confirm the nomination. In the absence of such confirmation the nomination by the Judicial Commission will be deemed to have been confirmed. A new Islamabad High Court has also been established for the Capital territory.

The (Eighteenth Amendment) Act, further boldly addresses the demand of the under developed and deprived Provinces for greater autonomy and devolution. The ‘Concurrent Legislative List’ has been abolished and about 25 subjects on the said list are now within the ambit of the powers of the Provincial governments. However, the advantages of greater federalism have, in part, been defeated due to the establishment of useless and redundant ministries by the federal government, merely for political gain.

The necessity for the adoption of the (Nineteenth Amendment) Act, 2011 arose primarily due to lack of clarity and consensus as to whether the Judicial Commission or the Parliamentary Committee had the final word on the appointment of Judges of the Superior Courts. The (Nineteenth Amendment) Act has now put the controversy to rest in the new proviso to clause 12 of Article 175A. Pursuant thereto the Committee shall record the reasons for rejecting the nomination by the Commission. It has now been held that the reasons for rejection of a nomination would be subject to judicial review by the Supreme Court in each case.

The (Twentieth Amendment) Act, 2012 was passed in the back drop of the serious constitutional issue of validation of the election of successful candidates in bye elections, in the absence of a duly Constituted Election Commission. The new proviso to Article 219 now provides that till such time as the members of the Election Commission are appointed, the Commissioner shall remain charged with the duty of preparing and revising electoral rolls; organizing and conducting elections to the Senate or in order to fill casual vacancies in a House or a Provincial Assembly; and appointing Election Tribunals.

As a quid pro quo for supporting the said amendment, the Opposition parties, in the National Assembly, insisted on the inclusion of new Article 224A. The Article now ensures that in case the outgoing Prime Minister and the leader of the Opposition in the National Assembly or the outgoing Chief Minister and the leader of the Opposition in a Provincial Assembly concerned, do not agree on a person to be appointed as the care-taker Prime Minister or care-taker Chief Minister, as the case may be, within three days of the dissolution of the Assemblies; the names of the nominees shall be forwarded to a Committee to be immediately Constituted by the Speaker of the Assembly concerned. The Committee shall have equal representation of the Treasury and the Opposition.

In case of inability of the Committee, constituted by the Speaker concerned, to decide the matter within three days; the names of the nominees shall be referred to the Election Commission for a final decision, within two days.

I am grateful to Mr. Naeemuddin Siddiqui, former Director Library and Research at the High Court of Sindh for providing me with copies of the gazettes, with respect to the latest amendments in the Constitution of Pakistan and the successive President’s Orders, relating to the increase in salaries of judges of the Superior Courts of Pakistan; which were required to complete the manuscript for the latest edition of the work.

I would like to again laud the services provided by the Office Administrator of Zain Sheikh & Associates, Mr. Azhar Shahzad, who single-handedly finalized the manuscript for the fourth edition of the book as well. He also helped in the preparation of the additional footnotes required due to the passage of the Constitution (Eighteenth Amendment) Act, 2010, the Constitution (Nineteenth Amendment) Act, 2010 and the Constitution (Twentieth Amendment) Act, 2012.

In this connection I would also like to record my appreciation of the yeoman’s services of Mr. Kashan Anwar, who was involved in the research and proof reading of the manuscript of the book. Mr. Anwar has also maintained and developed my website on constitutional law, entitled, “The Constitution of Pakistan, 1973” www.pakistanconstitutionlaw.com. The related software on constitutional law, entitled “LAWMAN”, has been successfully and meticulously maintained and regularly updated by Mr. Muhammad Mehboob.

Finally, I would like to thank Ms Tanaz Minwalla and Mr. Mannan Hatim Ali of Creative Unit (Pvt) Limited, for designing an attractive cover for the present edition of the book.

[Gazette of Pakistan, Extraordinary, Part I, 5th July, 1977.]
Whereas, I, General Muhammad Zia- ul- Haq, Chief of the Army Staff have proclaimed Martial Law throughout Pakistan and assumed the office of Chief Martial Law Administrator, hereby order and proclaim as follows:

(a) the Constitution of the Islamic Republic of Pakistan shall remain in abeyance;

(b) the National Assembly, the Senate and the Provincial Assemblies, shall stand dissolved;

(c) the Prime Minister, the Federal Ministers, Ministers of State, Advisers to the Prime Minister, the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies, the Chairman and Deputy Chairman of the Senate, the Provincial Governors, the Provincial Chief Ministers and the Provincial Ministers shall cease to hold office;

(d) the President of Pakistan shall continue in office; and

(e) the whole of Pakistan will come under Martial Law.

FARZANA TASNEEM

Vs

FEDERATION OF PAKISTAN

Per Muhammad Akhtar Shabbir, J-

Constitution of Pakistan (1973) Arts. 4,5 & 25-

It will not out of place to mention here that if a citizen who includes a person performing the function in connection with the affairs of the State does not obey the Constitutional commands, then he is not performing his obligation imposed by the Constitution. The first duty of the citizens of the country is loyalty to State and if a person commits an offence against the State, then he is not entitled to the protection of fundamental rights and is liable to be prosecuted and dealt with in accordance with law enforced for the purpose.

(a) Constitution of Pakistan (1973), Arts. 142, 90 & 97:

It is thus obvious under the scheme of the Constitution that Parliament has the exclusive power to make laws with respect to any matter in the Federal Legislative List. The Federal Legislative List has been given in Schedule IV of the Constitution.

In the light of the above-referred provisions of the Constitution read with Item 55 of the Federal Legislative List, it is obvious that with regard to the enlargement of the jurisdiction of the Supreme Court and conferring thereon of any supplemental power falls within the exclusive domain of the Parliament. The Provincial Legislature has no power whatsoever to deal with or to legislate with any matter in the Federal Legislative List. In this context, the Constitution of Pakistan jealously guards the power of the Federal Government and the Provincial Government, and neither of them can make inroad into the domain of the other. In this behalf, it will be advantageous to refer to Articles 90 and 97 of the Constitution of Islamic Republic of Pakistan. Under the former Article, the exercise of the executive authority of the federation shall not be deemed to transfer to the President any functions conferred by any existing law on the Government of any Province or other authority, nor it shall prevent the Parliament from conferring by law functions on authorities other than the President. Similarly, under the latter Article, i.e. 97, the executive authority of the federation shall extend to the matters with respect to which the Parliament has power to make laws including exercise of rights, authority and jurisdiction and under proviso to Article 97, the executive authority of the Federation shall not, save as experssly provided in the Constitution or in any law made by the Parliament extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws. The executive authority of the Province has been defined in Article 137;– Subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws; The proviso to Article 137 of the Constitution reads as under:

“Provided that in any matter with respect to which both Parliament and the Provincial Assembly of a Province have power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by the Parliament upon the Federal Government or authorities thereof.”

In the light of these provisions, it is crystal clear that the Provincial Legislature or the Governor cannot legislate or deal with any of the subjects to be dealt with or to be legislated upon by the Federal Government. In this behalf, therefore, we have no hesitation to hold that the appointment of a Judge of the Supreme Court as Cooperative Judge under the Ordinance is unconstitutional and beyond the legislative competence of the Provincial Governor.

ACT I OF 1987

March 29, 1987

An Act further to amend the Constitution of the
Islamic Republic of Pakistan

The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on the 25th March, 1987, and is hereby published for general information:-

Whereas it is expedient further to amend the Constitution of the Islamic Republic of Pakistan for the purposes hereinafter appearing;

It is hereby enacted as follows:

1. Short title and commencement.-(1) This Act may be called the Constitution (Tenth Amendment) Act, 1987.

(2) It shall come into force at once.

2. Amendment of Article 54 of the Constitution.-In the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, in Article 54, in clause (2), in the proviso, for the word “sixty” the word “thirty” shall be substituted.
3. Amendment of Article 61 of the Constitution.-In the Constitution, in Article 61, for the words “one hundred and sixty” the words “one hundred and thirty” shall be substituted.

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