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THE

Contempt of Court Ordinance, 2003

Ordinance No. IV of 2003

10th July 2003

An Ordinance to regulate

the exercise of the powers of

courts to punish for contempt of court.

WHEREAS clause (3) of Article 204 of the Constitution of he Islamic Republic of Pakistan Provides that the exercise of the power conferred on courts to punish for contempt may be regulated by law,

AND WHEREAS The National Assembly is not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action.

NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following ordinance.

1. Short title, extent and commencement: (1) This Ordinance may be called the Contempt of Court Ordinance, 2003.

(2) It extends to the whole of Pakistan.

(3) It shall come in force at once.

2. Definitions:– In this Ordinance, unless there is anything repugnant in subject or context:

(a) “Civil contempt” means the willful flouting or disregard of-

(i) an order, whether interim or final, a judgment or decree of a court;

(ii) A writ or order issued by a court in the exercise of its constitutional jurisdiction;

(iii) an undertaking given to, and recorded by, a court;

(iv) the process of a court;

(b) “Criminal contempt” means the doing of any act with intent to, or having the effect of, obstructing the administration of justice;

(c) “Judicial contempt” means the scandalization of a court and includes personalized criticism of a judge while holding of office;

(d) “Notice” means a notice other than a show cause notice issued by a court;

(e) “Pending proceedings” means proceedings which have been instituted in a court of law until finally decided after exhausting all appeals, revisions or reviews provided by law or until the period of limitation therefore has expired;

Provided that the pendency of an execution application shall not detract form the finality of the proceedings.

(f) “Personalized criticism” means a criticism of a judge or a judgment in which improper motives are imputed; and

(g) “Superior court” means the Supreme Court or a High Court.

3. Contempt of Court:- Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a willful breach of a valid undertaking given to a Court; or does any thing which is intended to or tends to bring the authority of a court or the administration of law into disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a court or scandalize a judge in relation to his office, or to disturb the order or decorum of a court is said to commit “contempt of Court” the Contempt is of three types, namely; the “Civil contempt” “criminal contempt” and “judicial contempt”.
4. Jurisdiction:– (1) Every superior Court shall have the power to punish a contempt committed in relation to it.

(2) Subject to sub-section (3) every High Court shall have the power to punish a contempt committed in relation to any Court subordinate to it.

(3) No High court shall proceeding in cases in which an alleged contempt is punishable by a subordinatecourt under the Pakistan Penal Code (Act No. XLV of 1860).

5. Punishment:– (1) Subject to sub-section (92) any person who commits contempt of court shall be punished with imprisonment which may extend to six months simple imprisonment, or with fine which may extend to Rs 100, 000, or with both.

(2)A person accused of having committed contempt of court may, at any stage, submit an apology and the court, if satisfied that it is bonafide, may discharge him or remit his sentence.

Explanation: The fact that an accused person genuinely believes that he has not committed contempt and enters a defence shall not detract from the bona fides of an apology.

(3) In case of a contempt having been committed, or alleged to have been committed, by a company, the responsibility therefore shall extend to the persons in the company, directly or indirectly, responsible for the same, who shall also be liable to be punished accordingly.

(4) Notwithstanding anything contained in any judgment, no court shall have the power to pass any order of punishment for or in relation to any act of contempt save and except in accordance with sub-section (1).

6. Criminal contempt when committed:– (1) A criminal contempt shall be deemed to have been committed if a person

(a) Attempts to influence a witness, or proposed witness, either by intimidation or improper inducement, not to give evidence, or not to tell the truth in any legal proceeding;

(b) offers an improper inducement or attempts to intimidate a judge, in order to secure a favourable verdict in any legal proceedings;

(c) Commits any other act with intent to divert the course of justice.

7. Cognizance of criminal contempt:– In the case of a criminal contempt a superior court make take action;

(i) Suo motu or

(ii) on the initiative of any person connected with the proceedings in which the alleged contempt has been committed; or

(iii) on the application of the law officer of a provincial or the Federal Government.

8. Fair reporting:– (1) Subject to sub-section (2), the publication of a substantially accurate account of what has transpired in a court, or of legal proceedings, shall not constitute contempt of court.

(2)The Court may, for reasons to be recorded in writing, in the interest of justice, prohibit the publication of information pertaining to legal proceedings.

9. Personalized criticism: – (1) Subject to the provisions of this Ordinance, personalized criticism of a specific judge, or judges, may constitute judicial contempt save and except true averment if made in good faith and in temperate language in a complaint made,

(a) to the administrative superior of a judge of a subordinate court;

(b) to a provincial government,

(c) to the Chief justice of a High Court;

(d) to the Supreme Court;

(e) to the supreme judicial Council; or

(f) to the Federal Government for examination and being forwarded to the supreme judicial Council;

(2) Nothing contained in sub-section (1) is intended to deprive a judge of the right to file a suit for defamation.

10. Fair comments:- The fair and healthy comments on a judgment involving question of public importance in a case which has finally been decided and is not longer pending shall not constitute contempt;

Provided that it is phrased in temperate language and the integrity and impartiality of a judge is not impugned.

11. Judicial contempt:- (1) A superior Court may take action in a case of judicial contempt on its own initiative or on information laid before it by any person.

(2) Any person laying false information relating to the commission of an alleged judicial contempt shall himself be liable to be proceeded against for contempt of court.

(3) Judicial contempt proceedings initiated by a judge, or relating to a judge, shall not be heard by the said judge, by shall (Unless he is himself the Chief justice) be referred to the Chief justice, who may her the same personally or refer it to some other judge, and in a case in which the judge himself is the Chief justice, shall be referred to the senior most judge available for disposal similarly.

(4) No proceedings for judicial contempt shall be initiated after the expiry of one year.

12. Civil contempt:- (1) Proceeding for civil contempt may be initiated suo motu or at the instance of an aggrieved party.

(2) The provisions contained herein are intended to be in addition to, and not in derogation of, the power of the Court under any other law for the time being in force to enforce compliance of its orders, judgments or decrees.

13. Procedure in case of contempt in the face of the court:- (1) In the case of a contempt committed in the face of the court, the court may cause the contemner /offender to be detained in custody and may proceed against him in the manner provided in sub-section (2);

Provided that if the case cannot be finally disposed of on the same day, the court may order the release of the accused from the custody either on bail or on his own bond.

(2) In all cases of contempt in the face of the court the juge shall pass an order in open court recording separately what was said or done by the accused person and shall immediately proceed against the offender or may refer the matter to the Chief justice for hearing and deciding the case by himself or by another judge.

14. Expunged material:- No material which has been expunged from the record under the orders of

(i) a court of competent jurisdiction, or

(ii) The presiding officer of the Senate, the National Assembly or a provincial Assembly; shall be admissible in evidence unless it is otherwise order by the court.

15. Innocent publication:- No person shall be guilty of contempt of court for making any statement, or publishing any material, pertaining to any matter which forms the subject of pending proceedings, if he was not aware of the pendency thereof.
16. Protected statements:- No proceedings for contempt of court shall lie in relation to the following:

(i) observations made by a higher or appellate court in a judicial order or judgment;

(ii) remarks made in an administrative capacity by any authority in the course of official business, including those in connection with a disciplinary inquiry or in an inspection note or a character roll or confidential report; and

(iii) a true statement without intent to scandalize a judge regarding his conduct in a matter not connected with the performance of his judicial functions.

17. Procedure:- (1) Save as expressly provided to the contrary, proceedings in cases of contempt shall be commenced by the issuance of a notice, or a show cause notice, at the discretion of the court.

(2) In the case of a notice the alleged contemner may enter appearance in person or through an advocate and in the case of a show cause notice, shall appear personally;

Provided that the court may at any time exempt the alleged contemner from appearing personally;

(3) if, after giving the alleged contemner an opportunity of a preliminary hearing, the court is prima facie satisfied that the interest of justice so requires, if shall fix a date for framing a charge in open court and proceed to decide the matter either on that date, or on a subsequent date or dates, on the basis of basis of affidavits, or after recording evidence;

Provided that the alleged contemner shall not, if he so requests, be denied the right of cross examination in relation to any affidavit, other than the of a judge, used in evidence against him.

18. Substantial detriment:- (1) No person shall be found guilty of contempt of court, or punished accordingly, unless the court is satisfied that the contempt is one which is substantially detrimental to the administration of justice or scandalizes the court or other wise tends to bring the court or judge into hatred or ridicule.

(2) In the event of a person being found not guilty of contempt by reason of sub-section (1) the courtmay pass an order deprecating the conduct, or actions, or the person accused of having committed contempt.

(3) Subject to the provisions of this Ordinance, truth shall be a valid defence in cases of contempt ofcourt.

19. Appeal:- (1) Notwithstanding anything contained in any other law or the rules for the time being in force, order passed by a superior court in contempt cases shall be appeal able in the following manner;

(i) in the case of an order passed by a single judge of a High Court an intra-court appeal shall lie to a bench of two or more judges;

(ii) in a case in which the original order has been passed by a division or larger bench of a High Court an appeal shall lie to the Supreme Court, and

(iii) in the case of an original order passed by a single judge or a bench of two judges of the Supreme Court an intra-court appeal shall lie to a bench of three judges and in case the original order was passed by a bench of three or more judges an intra-court appeal shall lie to a bench of five or more judges.

(2) The appellate court may suspend the impugned order pending disposal of the appeal.

(3) The limitation period of filing an appeal shall be 30 days.

20. Repeal:– The Contempt of court Act, 1976 (LXIV of 1976) is hereby repealed.

SOCIETE GENERALE DE SURVEILLANCES S.A

V/S

PAKISTAN THROUGH SECRETARY, MINISTRY OF FINANCE,
REVENUE DIVISION, ISB

Per Munir A. Sheikh, J.
(a) Constitution of Pakistan (1973), Article 185(3)
r/w Arbitration Act (X of 1940)-Ss. 20 & 34-
These two appeals by leave of the Court are directed against the judgment dated 14-2-2002 of the High Court. Leave was granted, inter alia, to consider the following points:-

(a) Whether the arbitration agreement between the parties was binding upon them notwithstanding the coming into force of the Bilateral Investment Treaty?

(b) Whether the trial Court was right in holding that the petitioner was not an investor within the meaning of the said word as defined in Bilateral Investment Treaty?

(c) Whether it has been rightly held keeping in view the circumstances of the case that the petitioner had waived its right to seek remedy before ICSID?”

(b) Constitution of Pakistan (1973), Article 175(2)

The argument raised by the learned Attorney-General has considerable force.

Admittedly, in Pakistan, the provisions of the Treaty were not incorporated through legislation into the laws of the Country, therefore, the same did not have the effect of altering the existing laws, as such, rights arising therefrom called treaty rights cannot be enforced through Court as in such a situation, the Court is not vested with the power to do so.

It may be significantly mentioned here that according to Article 175(2) of the Constitution of Islamic Republic of Pakistan, no Court has any jurisdiction unless conferred by or under any law or the Constitution, therefore, treaty unless was incorporated into the law so that it become part of Municipal Laws of the Country, no Court shall have jurisdiction to enforce any right arising therefrom. [p. 1711] C

(c) Constitution of Pakistan (1973), Article 97 &
Fourth Sched., Part I, Item 3-

Since Majlis-e-Shoora has the power to make laws in respect of these matters, therefore, by virtue of Article 97 of the Constitution, the Federal Government of Pakistan has the power to exercise executive authority in respect thereof which was exercised to ratify the treaty, but it has not conferred power on the executive authority to legislate a statute. [p. 1712] D

(d) Constitution of Pakistan (1973), Article Fourth Sched.,Part I, Item 3-
r/w Arbitration Act (X of 1940)-Ss. 20 & 34-

As regards resolution of dispute arising from investment as per terms of Bilateral Investment Treaty in this case, no law has been made in Pakistan of the nature as was done by Zambia Government or other States, therefore, the same could not be enforced as law in order to claim that the alleged choice given to the appellant under the said treaty to approach ICSID for arbitration had preference over the existing lawful contract between the parties inclusive of arbitration clause which is binding on the parties. [p. 1721] E

Advocates for the Appellant (in Civil Appeal No. 460 of 2002) :
Makhdoom Ali Khan, Attorney-General for Pakistan,
Uzair Bhandari, Advocate, Barrister Khurram Hashmi, Advocate and
Mehr Khan Mali, Advocate-on-Record.

Advocates for the Respondents (in Civil Appeal No. 460 of 2002) :
K.M.A. Samdani, Advocate SC, Farrukh Karim Qureshi, Advocate,
Syed Ishtiaq Haider, Advocate SC, Shahbaz Hussain Bokhari, Advocate and
M.S. Khattak, Advocate-on-Record.

Date of hearing : 15th, 16th, 17th, 20th and 21st of May, 2002.

SUO MOTU CONSTITUTIONAL PETITION

Per Nasim Hasan Shah, C.J.

(a) Constitution of Pakistan 1973, Articles 14 & 184(3)

NASIM HASAN SHAH, CJ.- The cognizance of this matter was taken up by this Court suo motu as a question of public importance namely the validity of public hangings and execution of punishments in public arose herein. [p. 1029]A

(b) Constitution of Pakistan 1973, Articles 14 & 184(3)

According to this provision the dignity and self-respect of every man has become inviolable and this guarantee is not subject to law but is an unqualified guarantee. Accordingly, in all circumstance, the dignity of every man is inviolable and executing in public, even the worst criminal, appears to violate the dignity of man and constitutes, therefore, a violation of the fundamental right contained in Article 14. [p. 1030]B

The Constitution (Eighteenth Amendment) Act, 2010

ACT NO. X of 2010

(April 19, 2010)

An Act further to amend the Constitution of the

Islamic Republic of Pakistan

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

AND WHEREAS the people of Pakistan have relentlessly struggled for democracy and for attaining the ideals of a Federal, Islamic, democratic, parliamentary and modern progressive welfare State, wherein the rights of the citizens are secured and the Provinces have equitable share in the Federation;

AND WHEREAS it is necessary that the Legal Framework Order, 2002, as amended by the Chief Executive’s Order No. 29 and the Chief Executive’s Order No. 32 of 2002, be declared as having been made without lawful authority and of no legal effect, and the Constitution (Seventeenth Amendment) Act, 2003 (Act No. III of 2003), be repealed and the Constitution further amended to achieve the aforesaid objectives;

It is hereby enacted as follows:

1. Short title and commencement.-(1) This Act may be called the Constitution (Eighteenth Amendment) Act, 2010.

(2) It shall come into force at once, save as otherwise provided in this Act.

2. Repeal, etc.- Subject to Article 264 and the provisions of the Constitution (Eighteenth Amendment) Act, 2010.

(a) the Legal Framework Order, 2002 (Chief Executive’s Order No. 24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive’s Order No. 29 of 2002) and the Legal Framework (Second Amendment) Order, 2002 (Chief Executive’s Order No. 32 of 2002), are hereby declared to have been made without lawful authority and of no legal effect and, therefore, shall stand repealed; and

(b) the Constitution (Seventeenth Amendment) Act, 2003 (Act No. III of 2003), is hereby repealed.

3. Amendment of Article 1 of the Constitution.-In the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, in Article 1, in clause (2), in paragraph (a), for the word “Baluchistan” the word “Balochistan”, for the words “North West Frontier” the words “Khyber Pakhtunkhwa”, and for the word “Sind” the word “Sindh”, shall be substituted.
4. Amendment of Article 6 of the Constitution.- In the Constitution, in Article 6, –

(i) for clause (1), the following shall be substituted, namely: –

“(1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.

(ii) in clause (2), after the word “abetting” the word “or collaborating” shall be inserted; and

(iii) after clause (2) amended as aforesaid, the following new clause shall be inserted, namely:

“(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.”.

5. Insertion of new Article in the Constitution.-In the Constitution, after Article 10, the following new Article shall be inserted, namely:-

“l0A. Right to fair trial.-For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”

6. Substitution of Article 17 of the Constitution.-In the Constitution, for Article 17, the following shall be substituted, namely:-

“17. Freedom of association. (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.

(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

(3) Every political party shall account for the source of its funds in accordance with law.”.

7. Insertion of new Article in the Constitution.-In the Constitution, after Article 19, the following new Article shall be inserted, namely: –

“19A. Right to information.-Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.”.

8. Amendment of Article 25 of the Constitution.-In the Constitution, in Article 25, in clause (2), the word “alone” occurring at the end shall be omitted
9. Insertion of new Article in the Constitution.-In the Constitution, after Article 25, the following new Article shall be inserted, namely:

“25A. Right to education.-The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.”.

10. Amendment of Article 27 of the Constitution.-In the Constitution, in Article 27, in clause (1), in the second proviso, for the full stop at the end a colon shall be substituted and thereafter the following proviso shall be inserted, namely: –

“Provided also that under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an Act of Majlis-e-Shoora (Parliament)”.

11. Amendment of Article 29 of the Constitution.-In the Constitution, in Article 29, in clause (3), for the word “the National Assembly” occurring for the first time the words and brackets, “each House of Majlis-e-Shoora (Parliament)” shall be substituted and after the word “National Assembly” occurring for the second time the words “and the Senate” shall be inserted.
12. Amendment of Article 38 of the Constitution.-In the Constitution, in Article 38, –

(i) in paragraph (e), the word “and” at the end shall be omitted;

(ii) in paragraph (f), for the full stop at the end a semicolon and the word “;and” shall be added and after paragraph (f) amended as aforesaid, the following new paragraph shall be added, namely: –

“(g) ensure that the shares of the Provinces in all Federal services, including autonomous bodies and corporations established by, or under the control of, the Federal Government, shall be secured and any omission in the allocation of the shares of the Provinces in the past shall be rectified.” .

13. Amendment of Article 41 of the Constitution.-In the Constitution, in Article 41,-

(i) in clause (3), the words, brackets and figure “to be elected after the term specified in clause (7)” shall be omitted; and

(ii) clauses (7), (8) and (9) shall be omitted.

14. Substitution of Article 46 of the Constitution.-In the Constitution, for Article 46, the following shall be substituted namely:

“46. President to be kept informed.- The Prime Minister shall keep the President informed on all matters of internal and foreign policy and on all legislative proposals the Federal Government intends to bring before Majlis-e-Shoora (Parliament)” .

15. Amendment of Article 48 of the Constitution.- In the Constitution, in Article 48,-

(i) In clause (1), –

(a) after the word “act” the words “on and” shall be inserted; and

(b) in the proviso, after the word “that” the words “within fifteen days” shall be inserted and after the word “shall” the commas and words “,within ten days,” shall be inserted; and

(ii) for clause (5) the following shall be substituted, namely: –

“(5) Where the President dissolves the National Assembly, notwithstanding anything contained in clause (1), he shall, –

(a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly; and

(b) appoint a care-taker Cabinet.” .

(iii) for clause (6) the following shall be substituted, namely: –

“(6). If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered .by either “Yes” or “No”.

16. Substitution of Article 51 of the Constitution.-In the Constitution, for Article 51, the following shall be substituted and shall be deemed always to have been so substituted with effect from the 21st day of August, 2002, namely:-

“51. National Assembly.-(1) There shall be three hundred and forty-two seats for members in the National Assembly, including seats reserved for women and non-Muslims.

(2) A person shall be entitled to vote if –

(a) he is a citizen of Pakistan;

(b) he is not less than eighteen years of age;

(c) his name appears on the electoral roll; and

(d) he is not declared by a competent court to be of unsound mind.

(3) The seats in the National Assembly referred to in clause (1), except as provided in clause (4), shall be allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital as under :-

General Seats Women Total
Balochistan 14 3 17
Khyber Pakhtunkhwa 35 8 43
Punjab 148 35 183
Sindh 61 14 75
Federally Administered Tribal Areas 12 – 12
Federal Capital 2 – 2
Total 272 60 332
(4) In addition to the number of seats referred to in clause (3), there shall be, in the National Assembly, ten seats reserved for non-Muslims.

(5) The seats in the National Assembly shall be allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital on the basis of population in accordance with the last preceding census officially published.

(6) For the purpose of election to the National Assembly,-

(a) the constituencies for the general seats shall be single member territorial constituencies and the members to fill such seats shall be elected by direct and free vote in accordance with law;

(b) each Province shall be a single constituency for all seats reserved for women which are allocated to the respective Provinces under clause (3);

(c) the constituency for all seats reserved for non-Muslims shall be the whole country;

(d) members to the seats reserved for women which are allocated to a Province under clause (3) shall be elected in accordance with law through proportional representation system of political parties’ lists of candidates on the basis of total number of general seats secured by each political party from the Province concerned in the National Assembly:

Provided that for the purpose of this paragraph the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates; and

(e) members to the seats reserved for non-Muslims shall be elected in accordance with law through proportional representation system of political parties’ lists of candidates on the basis of total number of general seats won by each political party in the National Assembly:

Provided that for the purpose of this paragraph the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates.”

17. Substitution of Article 58 of the Constitution.-In the Constitution, for Article 58, the following shall be substituted, namely:-

“58. Dissolution of the National Assembly.-(1) The President shall dissolve the National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Prime Minister has so advised.

Explanation.- Reference in this Article to “Prime Minister” shall not be construed to include reference to a Prime Minister against whom a notice of a resolution for a vote of no-confidence has been given in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly.

(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, a vote of no-confidence having been passed against the Prime Minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose.”.

18. Substitution of Article 59 of the Constitution.-In the Constitution, for Article 59, the following shall be substituted, namely:-

“59. The Senate.- (1) The Senate shall consist of one-hundred and four members, of whom,

(a) fourteen shall be elected by the members of each Provincial Assembly;

(b) eight shall be elected from the Federally Administered Tribal Areas, in such manner as the President may, by Order, prescribe;

(c) two on general seats, and one woman and one technocrat including aalim shall be elected from the Federal Capital in such manner as the President may, by Order, prescribe;

(d) four women shall be elected by the members of each Provincial Assembly;

(e) four technocrats including ulema shall be elected by the members of each Provincial Assembly; and

(f) four non-Muslims, one from each Province, shall be elected by the members of each Provincial Assembly:

Provided that paragraph (f) shall be effective from the next Senate election after the commencement of the Constitution (Eighteenth Amendment) Act, 2010.

(2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote.

(3) The Senate shall not be subject to dissolution but the term of its members, who shall retire as follows, shall be six years :

(a) of the members referred to in paragraph (a) of clause (1), seven shall retire after the expiration of the first three years and seven shall retire after the expiration of the next three years;

(b) of the. members referred to in paragraph (b) of the aforesaid clause, four shall retire after the expiration of the first three years and four shall retire after the expiration of the next three years;

(c) of the members referred to in paragraph (c) of the aforesaid clause, –

(i) one elected on general seat shall retire after the expiration of the first three years and the other one shall retire after the expiration of the next three years; and

(ii) one elected on the seat reserved for technocrat shall retire after first three years and the one elected on the seat reserved for women shall retire after the expiration of the next three years;

(d) of the members referred to in paragraph (d) of the aforesaid clause, two shall retire after the expiration of the first three years and two shall retire after the expiration of the next three years;

(e) of the members referred to in paragraph (e) of the aforesaid clause, two shall retire after the expiration of the. first three years and two shall retire after the expiration of the next three years; and

(f) of the members referred to in paragraph (f) of the aforesaid clause, two shall retire after the expiration of first three years and two shall retire after the expiration of next three years:

Provided that the Election Commission for the first term of seats for non-Muslims shall draw a lot as to which two members shall retire after the first three years.

(4) The term of office of a person elected to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled.”.

19. Amendment of Article 61 of the Constitution.-In the Constitution, in Article 61, for the word “ninety” the words “one hundred and ten” shall be substituted.
20. Substitution of Article 62 of the Constitution.-In the Constitution, for Article 62, the following shall be substituted, namely: –

“62. Qualifications for membership of Majlis-e-Shoora (Parliament).-(l) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless –

(a) he is a citizen of Pakistan;

(b) he is, in the case of the National Assembly, not less than twenty- five years of age and is enrolled as a voter in any -electoral roll in –

(i) any part of Pakistan, for election to a general seat or a seat reserved for a non-Muslims; and

(ii) any area in a Province from which she seeks membership for election to a seat reserved for women.

(c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership;

(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;

(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as well abstains from major sins;

(f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and

(g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan:

(2) The disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation;”.

21. Substitution of Article 63 of the Constitution.- In the Constitution, for Article 63, the following shall be substituted, namely,

“63. Disqualifications for membership of Majlis-e-Shoora (Parliament).-(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if –

(a) he is of unsound mind and has been so declared by a competent court; or

(b) he is an undischarged insolvent; or

(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or

(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or

(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or

(f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or

(g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed since his release; or

h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or

i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled, by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or

j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or

k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or

(l) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:

Provided that the disqualification under this paragraph shall not apply to a person –

(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;

(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XL VII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or

(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest;

Explanation.-In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation supply; or

(m) he holds any office of profit in the service of Pakistan other than the following offices, namely: –

(i) an office which is not whole time office remunerated either by salary or by fee;

(ii) the office of Lumbardar, whether called by this or any other title;

(iii) the Qaumi Razakars;

(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or

(n) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or

(o) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers; or

(p) he is for the time being disqualified from being elected or chosen as a member of a Majlis-e-Shoora (Parliament) or of Provincial Assembly under any law for the time being inforce.

Explanation.-For the purposes of this paragraph “law” shall not include an Ordinance promulgated under Article 89 or Article 128.

(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission. .

(3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”.

22. Substitution of Article 63A of the Constitution.- In the Constitution, for Article 63A, the following shall be substituted, namely:-

“63A. Disqualification on grounds of defection, etc.-(l) If a member of a Parliamentary Party composed of a single political party in a House –

(a) resigns from membership of his political party or joins another Parliamentary Party; or

(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to –

(i) election of the Prime Minister or the Chief Minister; or

(ii) a vote of confidence or a vote of no-confidence; or

(iii) a Money Bill or a Constitution (Amendment) Bill;

he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner and shall similarly forward a copy thereof to the member concerned:

Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.

Explanation.- “Party Head” means any person, by whatever name called, declared as such by the Party.

(2) A member of a House shall be deemed to be a member of a Parliamentary Party if he, having been elected as a candidate or nominee of a political party which constitutes the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing.

(3) Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner.

(4) Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant.

(5) Any party aggrieved by the decision of the Election Commission may, within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal.

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

(7) For the purpose of this Article,

(a) “House” means the National Assembly or the Senate, in relation to the Federation; and a 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.

(8) Article 63A substituted as aforesaid shall come into effect from the next general elections to be held after the commencement of the Constitution (Eighteenth Amendment) Act, 2010:

Provided that till Article 63A substituted as aforesaid comes into effect the provisions of existing Article 63A shall remain operative.”.

23. Substitution of Article 70 of the Constitution.- In the Constitution, for Article 70, the following shall be substituted, namely: –

“70. Introduction and passing of Bills.- (1) A Bill with respect to any matter in the Federal Legislative List may originate in either House and shall, if it is passed by the House in which it originated, be transmitted to the other House; and, if the Bill is passed without amendment by the other House also, it shall be presented to the President for assent.

(2) If a Bill transmitted to a House under clause (1) is passed with amendments it shall be sent back to the House in which it originated and if that House passes the Bill with those amendments it shall be presented to the President for assent.

(3) If a Bill transmitted to a House under clause (1) is rejected or is not passed within ninety days of its laying in the House or a Bill sent to a House under clause (2) with amendments is not passed by that House with such amendments, the Bill, at the request of the House in which it originated, shall be considered in a joint sitting and if passed by the votes of the majority of the members present and voting in the joint sitting it shall be presented to the President for assent.

(4) In this Article and the succeeding provisions of the Constitution, “Federal Legislative List” means the Federal Legislative List in the Fourth Schedule.”.

24. Omission of Article 71 of the Constitution.- In the Constitution, Article 71 shall be omitted.
25. Amendment of Article 73 of the Constitution.- In the Constitution, in Article 73,-

(i) For clause (1) the following shall be substituted, namely: –

“(1) Notwithstanding anything contained in Article 70, a Money Bill shall originate in the National Assembly:

Provided that simultaneously when a Money Bill, including the Finance Bill containing the Annual Budget Statement, is presented in the National Assembly, a copy thereof shall be transmitted to the Senate which may, within fourteen days, make recommendations thereon to the National Assembly.”; and

(ii) after clause (1), substituted as aforesaid, the following new clause shall be inserted, namely:

“(1A) The National Assembly shall consider the recommendations of the Senate and after the Bill has been passed by the Assembly with or without incorporating the recommendations of the Senate, it shall be presented to the President for assent.”.

26. Amendment of Article 75 of the Constitution.- In the Constitution, in Article 75,-

(i) in clause (1), for the word “thirty”, the word “ten” shall be substituted;

(ii) for clause (2), the following shall be substituted, namely:-

“(2) When the President has returned a Bill to the Majlis-e-Shoora (Parliament), it shall be reconsidered by the Majlis-e-Shoora (Parliament) in joint sitting and, if it is again passed, with or without amendment, by the Majlis-e-Shoora (Parliament), by the votes of the majority of the members of both Houses present and voting, it shall be deemed for the purposes of the Constitution to have been passed by both Houses and shall be presented to the President, and the President shall give his assent within ten days, failing which such assent shall be deemed to have been given.” ; and

(iii) in clause (3), after the word “assented”, the words “or is deemed to have assented”, shall be inserted.

27. Amendment of Article 89 of the Constitution.- In the Constitution, in Article 89, –

(i) in clause (1), before the words “National Assembly” the words “Senate or” shall be inserted;

(ii) in clause (2), in paragraph (a),

(a) in sub-paragraph (i), for the words “four months” the words “one hundred and twenty days” shall be substituted; and for the semi-colon at the end a colon shall be substituted and thereafter the following proviso shall be inserted, namely: –

“Provided that the National Assembly may by a resolution extend the Ordinance for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution:

Provided further that extension for further period may be made only once.”; and

(b) in sub-paragraph (ii), for the words “four months” the words “one hundred and twenty days” shall be substituted and for the semi-colon and the word “;and ” at the end a colon shall be substituted and thereafter the following provisos shall be inserted, namely:-

Provided that either House may by a resolution extend it for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by a House, upon the passing of that resolution:

Provided further that extension for a further period may be made only once; and

(iii) for clause (3), the following shall be substituted, namely: –

“(3) without prejudice to the provisions of clause (2),-

(a) an Ordinance laid before the National Assembly under sub-paragraph (i) of paragraph (a) of clause (2) shall be deemed to be a Bill introduced in the National Assembly; and

(b) an Ordinance laid before both Houses under sub-paragraph(ii) of paragraph (a) of clause (2) shall be deemed to be a Bill introduced in the House where it was first laid.”.

28. Substitution of Article 90 of the Constitution.-In the Constitution, for Article 90, the following shall be substituted, namely: –

“90. The Federal Government.-(1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the chief executive of the Federation.

(2) In the performance of his functions under the Constitution, the Prime Minster may act either directly or through the Federal Ministers.”.

29. Substitution of Article 91 of the Constitution.- In the Constitution, for Article 91, the following shall be substituted, namely:-

“91. The Cabinet.-(1) There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions.

(2) The National Assembly shall meet on the twenty-first day following the day on which a general election to the Assembly is held, unless sooner summoned by the President.

(3) After the election of the Speaker and the Deputy Speaker, the National Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its Muslim members to be the Prime Minister.

(4) The Prime Minister shall be elected by the votes of the majority of the total membership of the National Assembly:

Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Prime Minister:

Provided further that, if the number of votes secured by two or more members securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of votes of the members present and voting.

(5) The member elected under clause (4) shall be called upon by the President to assume the office of Prime Minister and he shall, before entering upon the office, make before the President oath in the form set out in the Third Schedule:

Provided that there shall be no restriction on the number of terms for the office of the Prime Minister.

(6) The Cabinet, together with the Ministers of State, shall be collectively responsible to the Senate and the National Assembly.

(7) The Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly.

(8) The Prime Minister may, by writing under his hand addressed to the President, resign his office.

(9) A Minister who for any period of six consecutive months is not a member of the National Assembly shall, at the expiration of that period, cease to be a Minister and shall not before the dissolution of that Assembly be again appointed a Minister unless he is elected a member of that Assembly:

Provided that nothing contained in this clause shall apply to a Minister who is member of the Senate.

(10) Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or a Minister of State during any such period. “

30. Amendment of Article 92 of the Constitution.- In the Constitution, in Article 92, in clause (1), –

(i) for the brackets and figures “(7) and (8)” the brackets and figures “(9) and (10)” shall be substituted; and

(ii) in the proviso, for full stop at the end a colon shall be substituted and thereafter the following provisos shall be inserted, namely:-

“Provided further that the total strength of the Cabinet, including Ministers of State, shall not exceed a eleven percent of the total membership of Majlis-e-Shoora (Parliament):

Provided also that the aforesaid amendment shall be effective from the next general election held after the commencement of the Constitution (Eighteenth Amendment) Act, 2010.”.

31. Amendment of Article 99 of the Constitution.- In the Constitution, in Article 99, –

(i) In clause (2), for the word “President” occurring for the first time the words “Federal Government” shall be substituted and for the words “in his name” the words “in the name of the President” shall be substituted; and

(ii) for clause (3), the following shall be substituted, namely: –

“(3) The Federal Government shall also make rules for the allocation and transaction of its business. ” .

32. Amendment of Article 100 of the Constitution.- In the Constitution, in Article 100, in clause (2), after the word “President” the words “and shall not engage in private practice so long as he holds the office of the Attorney-General” shall be added.
33. Amendment of Article 101 of the Constitution.- In the Constitution, in Article 101,-

(i) for clause (1) the following shall be substituted, name1y: –

“(1) There shall be a Governor for each Province, who shall be appointed by the President on the advice of the Prime Minister.”.

(ii) in clause (2), after the word “age”, the words “and is a registered voter and resident of the Province concerned” shall be added.

34. Substitution of Article 104 of the Constitution.- In the Constitution, for Article 104, the following shall be substituted namely:-

“104. Speaker Provincial Assembly to act as, or perform functions of Governor in his absence.- When the Governor, by reason of absence from Pakistan or for any other cause, is unable to perform his functions, the Speaker of the Provincial Assembly and in his absence any other person as the President may nominate shall perform the functions of Governor until the Governor returns to Pakistan or, as the case may be, resumes his functions.”.

35. Amendment of Article 105 of the Constitution.- In the Constitution, in Article 105, –

(i) in clause (1), after the word “act” the words “on and” shal be inserted, and in the proviso, after the word “that” the words “within fifteen days” shall be inserted and after the word “shall” the commas and words “,within ten days,” shall be inserted; and

(ii) for clause (3) the following shall be substituted, namely: –

“(3) Where the Governor dissolves the Provincial Assembly, notwithstanding anything contained in clause (1), he shall,-

(a) appoint a date, not later than ninety days from the date of dissolution, for the holding of a general election to the Assembly; and

(b) appoint a care-taker Cabinet.” and

(iii) clause (4) shall be omitted.

36. Amendment of Article 106 of the Constitution,- In the Constitution, for Article 106, the following shall be substituted and shall be deemed always to have been so substituted with effect from 21st day of August, 2002, namely: –

“106. Constitution of Provincial Assemblies.-(l) Each Provincial Assembly shall consist of general seats and seats reserved for women and non-Muslims as specified herein below.-

General Seats Women Non-Muslims Total

Balochistan 51 11 3 65

Khyber Pakhtunkhwa 99 22 3 124

Punjab 297 66 8 371

Sindh 130 29 9 168

(2) A person shall be entitled to vote if –

(a) he is a citizen of Pakistan;

(b) he is not less than eighteen years of age;

(c) his name appears on the electoral roll for any area in the Province; and

(d) he is not declared by a competent court to be of unsound mind

(3) For the purpose of election to a Provincial Assembly, –

(a) the constituencies for the general seats shall be single member territorial constituencies and the members to fill such seats shall be elected by direct and free vote;

(b) each Province shall be a single constituency for all seats reserved for women and non- Muslims allocated to the respective Provinces under clause (1);

(c) the members to fill seats reserved for women and non-Muslims allocated to a Province under clause (1) shall be elected in accordance with law through proportional representation system of political parties’ lists of candidates on the basis of the total number of general seats secured by each political party in the Provincial Assembly:

Provided that for the purpose of this sub-clause, the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates.”.

37. Substitution Article 112 in the Constitution.- In the Constitution, for Article 112, the following shall be substituted, namely: –

“112. Dissolution of Provincial Assembly.-(l) The Governor shall dissolve the Provincial Assembly if so advised by the Chief Minister; and the Provincial Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Chief Minister has so advised.

Explanation.- Reference in this Article to ‘Chief Minister’ shall not be construed to include reference to a Chief Minister against whom a notice of a resolution for a vote of no-confidence has been given in the Provincial Assembly but has not been voted upon or against whom a resolution for a vote of no-confidence has been passed.

(2) The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where a vote of no-confidence having been passed against the Chief Minister, no other member of the Provincial Assembly commands the confidence of the majority of the members of the Provincial Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the Provincial Assembly summoned for the purpose.”.

38. Amendment of Article 116 of the Constitution.- In the Constitution, in Article 116, –

(i) in clause (2), for the word “thirty” the word “ten” shall be substituted;

(ii) in clause (3), for the words “not withhold his assent therefrom” the words “give his assent within ten days, failing which such assent shall be deemed to have been given” shall be substituted; and

(iii) in clause (4), after the word “assented” the words “or is deemed to have assented” shall be inserted.

39. Amendment of Article 122 of the Constitution.- In the Constitution, in Article 122, in clause (2), proviso shall be omitted.
40. Amendment of Article 127 of the Constitution.- In the Constitution, in Article 127, in paragraph (g), for the word “seventy” the words “one hundred” shall be substituted.
41. Amendment of Article 128 of the Constitution.- In the Constitution, in Article 128, in clause (2), in paragraph (a), for the words “three months” the words “ninety days” shall be substituted and for the semi-colon and the word “; and” at the end a colon shall be substituted and thereafter, the following provisos shall be inserted, namely:-

“Provided that the Provincial Assembly may by a resolution extend the Ordinance for a further period of ninety days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution:

Provided further that extension for a further period may be made only once.”.

42. Substitution of Article 129 of the Constitution.- In the Constitution, for Article 129, the following shall be substituted, namely: –

“129. The Provincial Government.- (1) Subject to the Constitution, the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, which shall act through the Chief Minister.

(2) In the performance of his functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers.”.

43. Substitution of Article 130 of the Constitution.- In the Constitution, for Article 130, the following shall be substituted, namely: –

“130. The Cabinet- (1) There shall be a Cabinet of Ministers, with the Chief Minister at its head, to aid and advise the Governor in the exercise of his functions.

(2) The Provincial Assembly shall meet on the twenty-first day following the day on which a general election to the Assembly is held, unless sooner summoned by the Governor.

(3) After the election of the Speaker and the Deputy Speaker, the Provincial Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its members to be the Chief Minister.

(4) The Chief Minister shall be elected by the votes of the majority of the total membership of the Provincial Assembly:

Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Chief Minister:

Provided further that, if the number of votes secured by two or more members securing the highest number of votes is equal, further polls shall be held between them until one of them secures a majority of votes of the members present and voting.

(5) The member elected under clause (4) shall be called upon by the Governor to assume the office of Chief Minister and he shall, before entering upon the office, make before the Governor oath in the form set out in the Third Schedule:

Provided that there shall be no restriction on the number of terms for the office of the Chief Minister.

(6) The Cabinet shall be collectively responsible to the Provincial Assembly and the total strength of the Cabinet shall not exceed fifteen members or eleven percent of the total membership of a Provincial Assembly, whichever is higher:

Provided that the aforesaid limit shall be effective from the next general elections after the commencement of the Constitution (Eighteenth Amendment) Act, 2010.

(7) The Chief Minister shall hold office during the pleasure of the Governor, but the Governor shall not exercise his powers under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the members of the Provincial Assembly, in which case he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly.

(8) The Chief Minister may, by writing under his hand addressed to the Governor, resign his office.

(9) A Minister who for any period of six consecutive months is not a member of the Provincial Assembly shall, at the expiration of that period, cease to be a Minister and shall not before the dissolution of that Assembly be again appointed a Minister unless he is elected a member of that Assembly.

(10) Nothing contained in this Article shall be construed as disqualifying the Chief Minister or any other Minister for continuing in office during any period during which the Provincial Assembly stands dissolved, or as preventing the appointment of any person as Chief Minister or other Minister during any such period.

(11) The Chief Minister shall not appoint more than five Advisers.”.

44. Substitution of Article 131 of the Constitution.- In the Constitution, for Article 131, the following shall be substituted, namely: –

“131. Governor to be kept informed.- The Chief Minister shall keep the Governor informed on matters relating to Provincial administration and on all legislative proposals the Provincial Government intends to bring before the Provincial Assembly.”

45. Amendment of Article 132 of the Constitution.- In the Constitution, in Article 132, in clause (1), for the brackets and figures “(7) and (8) the brackets and figures “(9) and (10)” shall, respectively, be substituted.
46. Amendment of Article 139 of the Constitution.- In the Constitution, in Article 139, –

(i) in clause (2), for the word “Governor” occurring for the first time the words “Provincial Government” shall be substituted and for the words “in his name” the words “in the name of Governor” shall be substituted; and

(ii) for clause (3) the following shall be substituted, namely:

“(3) The Provincial Government shall also make rules for the allocation and transaction of its business. “.

47. Amendment of Article 140 of the Constitution.- In the Constitution, in Article 140, in clause (3), after the word “Governor” occurring at the end, the words “and shall not engage in private practice so long as he holds the office of the Advocate-General” shall be added.
48. Insertion of new Article in the Constitution.- In the Constitution, after Article 140 amended as aforesaid, the following new Article shall be inserted, namely:

“140A. Local Government.- Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments.

(2) Elections to the local governments shall be held by the Election Commission of Pakistan.”.

49. Amendment of Article 142 of the Constitution.- In the Constitution, in Article 142,-

(i) for paragraph (b) the following shall be substituted, namely:-

“(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence.”.

(ii) for paragraph (c) the following shall be substituted namely: –

“(c) Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List.”.

(iii) for paragraph (d) the following shall be substituted, namely: –

“(d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province.”

50. Substitution of Article 143 of the Constitution.- In the Constitution, for Article 143, the following shall be substituted, namely: –

“143.- Inconsistency between Federal and Provincial law.- If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis -e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void.”

51. Amendment of Article 144 of the Constitution.- In the Constitution, in Article 144,-

(i) in the marginal note, for the word “two” the word “one” shall be substituted;

(ii) for the word “two” occurring after the word “if” the word “one” shall be substituted, and

(iii) for the words “either List” the words “the Federal Legislative List”, shall be substituted.

52. Amendment of Article 147 of the Constitution.- In the Constitution, in Article 147, for the full stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely:-

“Provided that the Provincial Government shall get the functions so entrusted ratified by the Provincial Assembly within sixty days.”.

53. Amendment of Article 149 of the Constitution.-In the Constitution, in Article 149, clause (2) shall be omitted.
54. Amendment of Article 153 of the Constitution.-In the Constitution, in Article 153,-

(i) for clause (2) the following shall be substituted, namely:-

“(2) The Council shall consist of (a) the Prime Minister who shall be the Chairman of the Council;

(b) the Chief Ministers of the Provinces; and

(c) three members from the Federal Government to be nominated by the Prime Minister from time to time.”;

(ii) clause (3) shall be omitted; and

(iii) in clause (4), after the word “Parliament” occurring in the brackets at the end, the words “and shall submit an Annual Report to both Houses of Majlis-e-Shoora (Parliament)” shall be added.

55. Amendment of Article 154 of the Constitution.-In the Constitution, in Article 154, –

(i) for clause (1), the following shall be substituted, namely: –

“(1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and shall exercise supervision and control over related institutions.”;

(ii) Clauses (2), (3), (4) and (5) shall be renumbered as clauses (4),(5),(6) and (7), respectively, and after clause (1) amended as aforesaid, the following new clauses shall be inserted, namely: –

“(2) The Council shall be constituted within thirty days of the Prime Minister taking oath of office.

(3) The Council shall have a permanent Secretariat and shall meet at least once in ninety days:

Provided that the Prime Minister may convene a meeting on the request of a Province on an urgent matter.”.

56. Amendment of Article 155 of the Constitution.-In the Constitution, for Article 155, in clause (1) after the word “supply” the words “or reservoir” shall be inserted.
57. Substitution of Article 156 in the Constitution.-In the Constitution, for Article 156, the following shall be substituted, namely:

“156. National Economic Council.-(1) The President shall constitute a National Economic Council which shall consist of-

(a) the Prime Minister, who shall be the Chairman of the Council;

(b) the Chief Ministers and one member from each Province to be nominated by the Chief Minister; and

(c) four other members as the Prime Minister may nominate from time to time.

(2) The National Economic Council shall review the overall economic condition of the country and shall, for advising the Federal Government and the Provincial Governments, formulate plans in respect of financial, commercial, social and economic policies; and in formulating such plans it shall, amongst other factors, ensure balanced development and regional. equity and shall also be guided by the Principles of Policy set out in Chapter 2 of Part-II.

(3) The meetings of the Council shall be summoned by the Chairman or on a requisition made by one-half of the members of the Council.

(4) The Council shall meet at least twice in a year and the quorum for a meeting of the Council shall be one-half of its total membership.

(5) The Council shall be responsible to the Majlis-e-Shoora (Parliament) and shall submit an Annual Report to each House of Majlis-e-Shoora (Parliament).”.

58. Amendment of Article 157 of the Constitution.-In the Constitution, in Article 157,-

(i) in clause (1) for the full stop at the end a colon shall be substituted and thereafter the following proviso shall be inserted, namely:

“Provided that the Federal Government shall, prior to taking a decision to construct or cause to be constructed, hydro-electric power stations in any Province, shall consult the Provincial Government concerned.”; and

(ii) after clause (2), the following new clause shall be added, namely:

“(3) In case of any dispute between the Federal Government and a Provincial Government in respect of any matter under this Article, any of the said Governments may move the Council of Common Interests for resolution of the dispute.”.

59. Amendment of Article 160 of the Constitution.-In the Constitution, in Article 160, after clause (3), the following new clauses shall be inserted, namely:

“(3A) The share of the Provinces in each Award of National Finance Commission shall not be less than the share given to the Provinces in the previous Award.

(3B) The Federal Finance Minister and Provincial Finance Ministers shall monitor the implementation of the Award biannually and lay their reports before both Houses of Majlis-e -Shoora (Parliament) and the Provincial Assemblies.”.

60. Amendment of Article 161 of the Constitution.-In the Constitution, in Article 161, for clause (1) the following shall be substituted, namely: –

“(1) Notwithstanding the provisions of Article 78,

(a) the net proceeds of the Federal duty of excise on natural gas levied at well-head and collected by the Federal Government and of the royalty collected by the Federal Government, shall not form part of the Federal Consolidated Fund and shall be paid to the Province in which the well- head of natural gas is situated;

(b) the net proceeds of the Federal duty of excise on oil levied at well-head and collected by the Federal Government, shall not form part of the Federal Consolidated Fund and shall be paid to the Province in which the well-head of oil is situated.

61. Amendment of Article 167 of the Constitution.-In the Constitution, in Article 167, after clause (3) the following new clause shall be inserted, namely: –

“(4) A Province may raise domestic or international loan, or give guarantees on the security of the Provincial Consolidated Fund within such limits and subject to such conditions as may be specified by the National Economic Council. ” .

62. Amendment of Article 168 of the Constitution.-In the Constitution, in Article 168,

(i) for clause (3) the following shall be substituted, namely: –

“(3) The Auditor-General shall, unless he sooner resigns or is removed from office in accordance with clause (5), hold office for a term of four years from the date on which he assumes such office or attains the age of sixty-five years, whichever is earlier.”.

(ii) after clause (3), amended as aforesaid, the following new clause shall be inserted, namely:

“(3A) The other terms and conditions of service of the Auditor-General shall be determined by Act of Majlis-e-Shoora (Parliament); and, until so determined, by Order of the President.”; and

(iii) in clause (6), for the words “such other person as the President may direct shall” the words “the President may appoint the most senior officer in the Office of the Auditor-General to” shall be substituted.

63. Amendment of Article 170 of the Constitution.-In the Constitution, Article 170 shall be renumbered as clause (1) of that Article and after clause (1) renumbered as aforesaid the following new clause shall be added, namely: –

“(2) The audit of the accounts of the Federal and of the Provincial Governments and the accounts of any authority or body established by, or under the control of, the Federal or a Provincial Government shall be conducted by the Auditor-General, who shall determine the extent and nature of such audit.”.

64. Amendment of Article 171 of the Constitution.-In Article 171, for the words ‘the National Assembly” the words and brackets “both Houses of Majlis-e-Shoora (Parliament)” shall be substituted.
65. Amendment of Article 172 of the Constitution.-In the Constitution, in Article 172,-

(i) in clause (2), for the word “within” occurring for the second time the word “beyond” shall be substituted; and

(ii) after clause (2) amended as aforesaid, the following new clause shall be inserted, namely: –

“(3) Subject to the existing commitments and obligations, mineral oil and natural gas within the Province or the territorial waters adjacent thereto shall vest jointly and equally in that Province and the Federal Government.”.

66. Amendment of Article 175 of the Constitution.-In the Constitution, in Article 175, in clause (1), after the word “Province” the words “and a High Court for the Islamabad Capital Territory” shall be inserted and under clause (1) amended as aforesaid, the following Explanation shall be added, namely:

“Explanation. – The words “High Court” wherever occurring in the Constitution shall include the High Court for the Islamabad Capital Territory.”.

67. Insertion of Article 175A in the Constitution.-In the Constitution, after Article 175, the following new Article shall be inserted, namely: –

“175A.Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court.-(1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.

(2) For appointment of Judges of the Supreme Court, the Commission shall consist of –

(i) Chief Justice of Pakistan; Chairman

(ii) two most senior Judges of the Supreme Court; Members

(iii) a former Chief Justice or a former Judge of Member

the Supreme Court of Pakistan to be

nominated by the Chief Justice of Pakistan,

in consultation with the two member Judges,

for a period of two years:

(iv) Federal Minister for Law and Justice; Member

(v) Attorney-General for Pakistan; and Member

(vi) a Senior Advocate of the Supreme Court of Member

Pakistan nominated by the Pakistan Bar

Council for a term of two years.

(3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.

(4) The Commission may make rules regulating its procedure.

(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:-

(i) Chief Justice of the High Court to which the Member appointment is being made;

(ii) the most senior Judge of that High Court; Member

(iii) Provincial Minister for Law; and Member

(iv) a senior advocate to be nominated Member
by the Provincial Bar Council for a term
of two years:

Provided that for appointment of the Chief Justice of a High Court, the most senior Judge of the Court shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the two member Judges of the Commission mentioned in clause (2):

Provided further that if for any reason the Chief Justice of High Court is not available, he shall also be substituted in the manner as provided in the foregoing proviso.

(6) For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:

(i) Chief Justice of the Islamabad High Court; and Member

(ii) the most senior Judge of that High Court: Member

Provided that for initial appointment of the Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission:

Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members:

Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(8) The Commission by majority of its total-membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be;

(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely: –

(i) four members from the Senate; and

(ii) four members from the National Assembly.

(10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition.

(11) Secretary, Senate shall act as the Secretary of the Committee.

(12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed:

Provided that the Committee may not confirm the nomination by three-fourth majority of its total membership within the said period, in which case the Commission shall send another nomination.

(13) The Committee shall forward the name of the nominee confirmed by it or deemed to have been confirmed to the President for appointment.

(14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.

(15) The Committee may make rules for regulating its procedure.

68. Amendment of Article 177 of the Constitution.-In the Constitution, in Article 177, for clause (1) the following shall be substituted, namely:-

“(1) The Chief Justice of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President in accordance with Article 175 A.”.

69. Amendment of Article 193 of the Constitution.-In the Constitution, in Article 193,

(i) for clause (1), the following shall be substituted, namely: –

“(1) The Chief Justice and each of other Judges of a High Court shall be appointed by the President in accordance with Article I75A.”

(ii) in clause (2), for the word “forty” the word “forty-five” shall be substituted and shall be deemed always to have been so substituted with effect from the 21st day of August, 2002.

70. Amendment of Article 194 of the Constitution.-In the Constitution, in Article 194, for the full stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely: –

“Provided that the Chief Justice of the Islamabad High Court shall make oath before the President and other Judges of that Court shall make oath before the Chief Justice of the Islamabad High Court”.

71. Amendment of Article 198 of the Constitution.-In the Constitution, in Article 198,

(i) after clause (1), the following new clause shall be inserted, namely:-

“(1A) The High Court for Islamabad Capital Territory shall have its principal seat at Islamabad.”

(ii) in clause (3),-

(a) after the word Abbottabad, the comma and the word “,Mingora” shall be inserted; and

(b) after the word “Sibi” occurring at the end, the words “and Turbat” shall be added.

72. Amendment of Article 199 of the Constitution.-In the Constitution, in Article 199, for clause (4A), the following shall be substituted, namely, –

“(4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made:

Provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made.”.

73. Amendment of Article 200 of the Constitution.-In the Constitution, in Article 200,

(i) in clause (1), the proviso shall be omitted; and

(ii) clause (4) shall be omitted.

74. Amendment of Article 203C of the Constitution.-In the Constitution, in Article 203 C,-

(i) in clause (2), after the word “President” occurring at the end the words, figures and letters “in accordance with Article 175A” shall be inserted;

(ii) in clause (3A), for the words “who are well-versed in Islamic law” the words and comma “having at least fifteen years experience in Islamic law, research or instruction” shall be substituted;

(iii) in clause (4), in the proviso, the words “for a period exceeding two years” shall be omitted;

(iv) for clause (4B) the following shall be substituted, namely: –

“(4B) The Chief Justice and a Judge shall not be removed from office except in the like manner and on the like grounds as a Judge of the Supreme Court.”;

(v) clause (4C) and clause (5) shall be omitted.

(vi) for clause (9), the following shall be substituted and shall be deemed always to have been so substituted with effect from the 21st day of August, 2002, namely: –

“(9) A Chief Justice who is not a Judge of the Supreme Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of the Supreme Court and a Judge who is not a Judge of a High Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of a High Court:

Provided that where a Judge is already drawing a pension for any other post in the service of Pakistan, the amount of such pension shall be deducted from the pension admissible under this clause. ” .

75. Amendment of Article 203D of the Constitution.-In the Constitution, in Article 203D, in clause (1A), the words “or the Concurrent Legislative List” shall be omitted and for the words “in the either of those Lists” the words “in the Federal Legislative List” shall be substituted.
76. Amendment of Article 209 of the Constitution.-In the Constitution, in Article 209, for clause (5) the following shall be substituted, namely: –

“(5) If, on information from any source, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court-

(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

(b) may have been guilty of misconduct,

the President shall direct the Council to, or the Council may, on its own motion, inquire into the matter.” .

77. Amendment of Article 213 of the Constitution.-In the Constitution, in Article 213,-

(i) in clause (1), the words “in his discretion” shall be omitted;

(ii) after clause (2), the following new clauses shall be inserted, namely:

“(2A). The Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person.

(2B) The Parliamentary Committee to be constituted by the Speaker shall comprise fifty percent members from the Treasury Benches and fifty percent from the Opposition Parties, based on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective Parliamentary Leaders:

Provided that in case there is no consensus between the Prime Minister and the Leader of the Opposition, each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any one name:

Provided further that the total strength of the Parliamentary Committee shall not exceed twelve members out of which one-third shall be from the Senate:

Provided also that when the National Assembly is dissolved and a vacancy occurs in the office of the Chief Election Commissioner, the Parliamentary Committee shall comprise the members from the Senate only and the foregoing provisions of this clause shall,mutatis mutandis. apply.”.

78. Amendment of Article 215 of the Constitution.-In the Constitution, in Article 215, in clause (1),-

(i) for the word “three” the word “five” shall be substituted and thereafter the following proviso shall be inserted, namely: –

“Provided that the aforesaid amendment shall be effective after the expiry of current tenure of the present incumbent; and

(ii) the existing proviso shall be omitted.

79. Amendment of Article 216 of the Constitution.-In the Constitution, in Article 216, in clause (2), in the proviso, –

(i) in paragraph (a), for the semicolon and the word “,and” a full stop shall be substituted; and

(ii) paragraph (b) shall be omitted.

80. Amendment of Article 218 of the Constitution.-In the Constitution, in Article 218,

(i). for clause(1), the following shall be substituted, namely: –

“(1) For the purpose of election to both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.”; and

(ii) for clause (2), the following shall be substituted, namely:

” (2) The Election Commission shall consist of ,-

(a) the Commissioner who shall be the Chairman of the Commission; and

(b) four members, each of whom has been a Judge of a High Court from each Province, appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213.”.

81. Amendment of Article 219 of the Constitution.- In the Constitution, in Article 219,-

(i) for the word “Commissioner” the word “Commission” shall be substituted; and

(ii) in paragraph (c), for the full stop at the end a semi colon shall be substituted and after paragraph (c), amended as aforesaid, the following new paragraphs shall be added; namely:-

“(d) the holding of general elections to the National Assembly, Provincial Assemblies and the local governments; and

(e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament).”.

82. Amendment of Article 221 of the Constitution.-In the Constitution, in Article 221, for the word “Commissioner” occurring for the first and second time, the words, “Election Commission” shall be substituted and the words “Commissioner or an” shall be omitted.
83. Amendment of Article 224 of the Constitution.-In the Constitution, in Article 224,

(i) for clause (1), the following shall be substituted, namely:-

“(1) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.”;

(ii) after clause (1) substituted as the aforesaid, the following new clauses shall be inserted, namely :-

“(1A) On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a care taker Cabinet:

Provided that the care-taker Prime Minister shall be selected by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly:

Provided further that the Members of the Federal and Provincial care-taker Cabinets shall be appointed on the advice of the care-taker Prime Minister or the care-taker Chief Minister, as the case may be.

(IB) Members of the care-taker Cabinets including the care -taker Prime Minister and the care-taker Chief Minister and their immediate family members shall not be eligible to contest the immediately following elections to such Assemblies.

Explanation.- In this clause “immediate family members” means spouse and children.”: and

(iii) after clause (5) the following new clause shall be inserted and shall be deemed always to have been so inserted with effect from the 21st day of August, 2002, namely: –

“(6) When a seat reserved for women or non-Muslims in the National Assembly or a Provincial Assembly falls vacant, on account of death, resignation or disqualification of a member, it shall be filled by the next person in order of precedence from the party list of the candidates to be submitted to the Election Commission by the political party whose member has vacated such seat.”.

84. Substitution of Article 226 of the Constitution.-In the Constitution, for Article 226, the following shall be substituted, namely:-

“226. Election by secret ballot.- All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.”.

85. Amendment of Article 228 of the Constitution.-In the Constitution, in Article 228, in clause (3), in paragraph (c), for the word “four” the words “one-third” shall be substituted.
86. Amendment of Article 232 of the Constitution.-In the Constitution, in Article 232, in clause (1), for the full stop at the end a colon shall be substituted and after clause (1) amended as aforesaid, the following provisos shall be inserted, namely:

“Provided that for imposition of emergency due to internal disturbances beyond the powers of a Provincial Government to control, a Resolution from the Provincial Assembly of that Province shall be required:

Provided further that if the President acts on his own, the Proclamation of Emergency shall be placed before both Houses of Majlis-e-Shoora (Parliament) for approval by each House within ten days.”.

87. Amendment of Article 233 of the Constitution.-In the Constitution, in Article 233, in clause (3), for the words “a joint sitting” the words “both Houses of Majlis-e-Shoora (Parliament) separately” shall be substituted.
88. Amendment of Article 234 of the Constitution.-In the Constitution, in Article 234, in clause (1), –

(i) the words “or otherwise” shall be omitted; and

(ii) for the words “at a joint sitting” the words “by each House separately” shall be substituted.

89. Amendment of Article 242 of the Constitution.-In the Constitution, in Article 242,

(i) in clause (1A), for the words “in his discretion” the words “on the advice of the Prime Minister” shall be substituted”; and

(ii) after clause (1A), amended as aforesaid, the following new clause shall be inserted, namely:

“(IB) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister.”.

90. Substitution of Article 243 in the Constitution.-In the Constitution, for Article 243, the following shall be substituted, namely:-

“243. Command of Armed Forces.-(1) The Federal Government shall have control and command of the Armed Forces.

(2) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President.

(3) The President shall subject to law, have power –

(a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; and

(b) to grant Commissions in such Forces.

(4) The President shall, on advice of the Prime Minister, appoint –

(a) the Chairman, Joint Chiefs of Staff Committee;

(b) the Chief of the Army Staff;

(c) the Chief of the Naval Staff; and

(d) the Chief of the Air Staff,

and shall also determine their salaries and allowances.”.

91. Amendment of Article 246 of the Constitution.-In the Constitution, in Article 246, in paragraph (a),-

(a) in sub-paragraph (i), for the word “Baluchistan” the word “Balochistan” and for the words “North West Frontier” the words “Khyber Pakhtunkhwa” shall be substituted and the word “and” at the end shall be omitted, and

(b) after sub-paragraph (ii), the following new sub-paragraphs shall be inserted, namely:-

“(iii) Tribal Areas adjoining Lakki Marwat District; and

(iv) Tribal Areas adjoining Tank District.”.

92. Amendment of Article 260 of the Constitution.-In the Constitution, in Article 260, in clause (1), the definition of expression “consultation” shall be omitted.
93. Insertion of new Articles in the Constitution.-In the Constitution, after Article 267, the following new Articles shall be inserted, namely:-

“267A. Power to remove difficulties.-(1) If any difficulty arises in giving effect to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, hereinafter in this Article referred as the Act, or for bringing the provisions of the Act into effective operation, the matter shall be laid before both Houses in a joint sitting which may by a resolution direct that the provisions of the Act shall, during such period as may be specified in the resolution, have effect, subject to such adaptations, whether by way of modification, addition or omission, as may be deemed necessary or expedient:

Provided that this power shall be available for a period of one year from the commencement of the Act.

267B. Removal of doubt.- For removal of doubt it is hereby declared that Article 152A omitted and Articles 179 and 195 substituted by the Constitution (Seventeenth Amendment) Act, 2003 (Act No. III of 2003), notwithstanding its repeal, shall be deemed always to have been so omitted and substituted.”.

94. Amendment of Article 268 of the Constitution.-In the Constitution, in Article 268, clause (2) shall be omitted.
95. Amendment of Article 270A of the Constitution.-In the Constitution, in Article 270A,-

(a) in clause (1), the words, commas, brackets and figures “under which, in consequences of the result of the referendum held on the nineteenth day of December, 1984, General Mohammad Zia-ul-Haq become the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41,” shall be omitted : and

96. Substitution of new Article in the Constitution.-In the Constitution, for Article 270AA, the following shall be substituted, namely:

“270AA. Declaration and continuance of laws etc.-(l) The Proclamation of Emergency of the fourteenth day of October, 1999, the Provisional Constitution Order No.1 of 1999, the Oath of Office (Judges) Order, 2000 (No.1″ of2000), Chief Executive’s Order No. 12 of 2002, Chief Executive’s Order No. 19 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive’s Order No. 24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive’s Order No. 29 of 2002) and the Legal Framework (Second Amendment) Order, 2002 (Chief Executive’s Order No. 32 of 2002), notwithstanding any judgment of any court including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect.

(2) Except as provided in clause (1) and subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, all other laws including President’s Orders, Acts, Ordinances, Chief Executive’s Orders, regulations, enactments, notifications, rules, orders or bye-laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty -first day of October, two thousand and three (both days inclusive) and still in force shall, continue to be in force until altered, repealed or amended by the competent authority.

Explanation.- For the purposes of clause (2) ‘and clause (6), “competent authority” means, –

(a) in respect of Presidents’ Orders, Ordinances, Chief Executive’s Orders and all other laws, the appropriate Legislature; and

(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.

(3) Notwithstanding anything contained in the Constitution or clause (1), or judgment of any court including the Supreme Court or a High Court, –

(a) Judges of the Supreme Court, High Courts and Federal Shariat Court who were holding the office of a Judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order, 2000, (I of 2000), shall be deemed to have continued to hold the office as a Judge or to have been appointed as such, as the case may be, under the Constitution, and such continuance or appointment, shall have effect accordingly.

(b) Judges of the Supreme Court, High Courts and Federal Shariat Court who not having been given or taken oath under the Oath of Office of (Judges) Order, 2000 (I of 2000), and ceased to hold the office of a Judge shall, for the purposes of pensionary benefits only, be deemed to have continued to hold office under the Constitution till their date of superannuation.

(4) All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty first day of December, two thousand and three (both inclusive), in exercise of the powers derived from any authority or laws mentioned in clause (2), or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding anything contained in clause (1), be deemed to be valid and shall not be called in question in any court or forum on any ground whatsoever.

(5) No suit, prosecution or other legal proceedings, including writ petitions, shall lie in any court or forum against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or clause (4) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.

(6) Notwithstanding omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority.

(7) Notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to be levied until they are varied or abolished by an Act of the appropriate legislature.

(8) On the omission of the Concurrent Legislative List, the process of devolution of the matters mentioned in the said List to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven.

(9) For purposes of the devolution process under clause (8), the Federal Government shall constitute an Implementation Commission as it may deem fit within fifteen days of the commencement of the Constitution (Eighteenth Amendment) Act, 2010.”.

97. Amendment of Article 270B of the Constitution.-In the Constitution, in Article 270B, after the figure and comma “1977,”, the words, commas, figures and brackets “and the Conduct of General Elections Order, 2002 (Chief Executive’s Order No.7 of 2002),” shall be inserted and shall be deemed always to have been so inserted with effect from the 21st day of August, 2002.
98. Insertion of new Article 270BB of the Constitution.-In the Constitution, after Article 270B, amended as aforesaid, the following new Article shall be inserted, namely: –

“270BB. General Elections 2008.-Notwithstanding anything contained in the Constitution or any other law for the time being in force, the General Elections 2008, to the National Assembly and the Provincial Assemblies held on the eighteenth day of February, two thousand and eight shall be deemed to have been held under the Constitution and shall have effect accordingly.”.

99. Amendment of Annex to the Constitution.-In the Constitution, in the ANNEX, in the Objectives Resolution, in the sixth paragraph, after the word “to” the word “freely” shall be inserted.
100. Amendment of Third Schedule to the Constitution.- In the Constitution, in the Third Schedule,

(i) in the Oath prescribed for the Prime Minister, for the figure “3” occurring in the brackets, the figure “5” shall be substituted;

(ii) in the Oath prescribed for the Chief Minister or Provincial Minister, for the figures and brackets “131(4)” the figures and brackets “130(5)” shall be substituted;

(iii) in the Oath prescribed for the Speaker of a Provincial Assembly, for the words “I will discharge” the words and comma “and whenever I am called upon to act as Governor, I will discharge” shall be substituted; and

(iv) for the Oath prescribed for the Chief Justice or a Judge of the Federal Shariat Court, the following shall be substituted, namely:-

“CHIEF JUSTICE OR JUDGE OF

THE FEDERAL SHARIAT COURT

“[Article 203 C (7)]

(Bismillah Er Rakhman Ne Ra Kheem)

(In the name of Allah, the most Beneficent, the most Merciful.)

I___________________________do solemnly swear that I will bear true faith and allegiance to Pakistan:

That, as Chief Justice of the Federal Shariat Court (or a Judge of the Federal Shariat Court), I will discharge my duties, and perform my functions, honestly, to the best of my ability, and faithfully, in accordance with the Constitution of the Islamic Republic of Pakistan and the law:

That I will not allow my personal interest to influence my official conduct or my official decisions.

That I will abide by the code of conduct issued by the Supreme Judicial Council:

That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan:

And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will.

May Allah Almighty help and guide me (A’meen);”

101. Amendment of Fourth Schedule to the Constitution.-In the Constitution, in the Fourth Schedule, in the Federal Legislative List, –

(1) in Part 1,-

(i) in entry 18, in sub-entry (c) for the full stop at the end the semicolon and a word “;and” shall be added and after sub-entry( c) amended as aforesaid, the following new sub-entry shall be added, namely:-

“(d) boilers.”.

(ii) for entry 32 the following shall be substituted, namely:-

“32. International treaties, conventions and agreements and International arbitration.”.

(iii) entries 21, 33, 38 and 40 shall be omitted;

(iv) entry 45 and entry 46 shall be omitted;

(v) in entry 49, after the word “consumed” the comma and words “, except sales tax on services” shall be added.

(vi) in entry 50, after the word “taxes” the words “on capital gains” shall be omitted.

(2) in Part II,-

(i) entries 4,5,6,7, and 8 shall be renumbered as entries 14, 15,16, 17 and 18, respectively, and

(ii) after entry 3, the following new entries shall be inserted, namely:-

“4. Electricity.

5. Major ports, that is to say, the declaration and delimitation of such ports, and the constitution and powers of port authorities therein.

All regulatory authorities established under a Federal law.
National planning and national economic coordination including planning and coordination of scientific and technological research.
Supervision and management of public debt.
Census.
Extension of the powers and jurisdiction of members of a police force belonging to any Province to any area in another Province, but not so as to enable the police of one Province to exercise powers and jurisdiction in another Province without the consent of the Government of that Province; extension of the powers and jurisdiction of members of a police force belonging to any Province to railway areas outside that Province.
Legal, medical and other professions.
Standards in institutions for higher education and research, scientific and technical institutions.
Inter-provincial matters and co-ordination.”.
(3) The Concurrent Legislative List and the entries thereto from 1 to 47 (both inclusive) shall be omitted.

102. Omission of the Sixth and the Seventh Schedule in the Constitution.-In the Constitution, the Sixth Schedule and the Seventh Schedule shall be omitted.

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.