Category: preamble

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

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 A legacy of dictatorship, the Constitution (Seventeenth Amendment) Act, 2003, was repealed and about a hundred, major and minor, changes were made in the ‘Basic Law’ of the land.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FARZANA TASNEEM

Vs

FEDERATION OF PAKISTAN

Per Muhammad Akhtar Shabbir, J-

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

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

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

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

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

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

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

ACT I OF 1987

March 29, 1987

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

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

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

It is hereby enacted as follows:

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

(2) It shall come into force at once.

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

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Preservation of language, script and culture.- Subject to Article 251 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose.

Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;

And whereas it is the will of the people ofPakistanto establish an order—

Wherein the State shall exercise its powers and authority through the chosen representatives of the people;

Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;

Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;

Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;

Wherein the independence of the judiciary shall be fully secured;

Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;

So that the people ofPakistanmay prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity:

            Now, therefore, we, the people ofPakistan,

            Conscious of our responsibility before Almighty Allah and men;

            Cognisant of the sacrifices made by the people in the cause ofPakistan;

Faithful to the declaration made by the Founder of Pakistan, Quaid-e-Azam Mohammad Ali Jinnah, thatPakistanwould be a democratic State based on Islamic Principles of social justice;

Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;

Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;

Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.

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Footnotes

• The Constitution ofPakistan1973 was enacted by the National Assembly on April 10, 1973and authenticated by the President of the National Assembly, and published in the Gazette of Pakistan, Extraordinary Part I, on page 195, April 12, 1973. Pursuant to Art. 265 the Constitution came into force on august 14, 1973, referred to in the said Article as the ‘Commencing day’. The Constitution was held in abeyance by the Proclamation of Martial Law issued by General M. Zia-ul-Haq on July 5, 1977and published in the Gazette of Pakistan, Extraordinary Part I, on page 411, on the said date. The Revival of the Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), promulgated on the March 2, 1985 and published in the Gazette of Pakistan, Extraordinary Part I, at page 101, on the said date and the Constitution (Eighth Amendment) Act, 1985, (XVIII of 1985), enacted on November 11, 1985 and published in the Gazette of Pakistan, Extraordinary Part I, at page 404, on the said date, effected drastic and major changes in the Constitution, prior to its revival in 1985. The Constitution, except for Arts. 6, 8 to 28 (both inclusive) clauses 2 and 2(a) of Art. 101, Arts. 199, 213 to 216 (both inclusive) and 270-A, was revived by the Enforcement of Constitution Order onMarch 10, 1985, (vide S.R.O. No. 212(85)), published in the Gazette of Pakistan, Extraordinary Part II, at page 279, on the said date. The excluded provisions came into force on December 30, 1985 by virtue of Enforcement of Constitution Notification of Ministry of Justice, (vide S.R.O. No. 1278(1)/85), published in the Gazette of Pakistan, Extraordinary Part II, at page 3185, on December 29, 1985. The whole of Pakistan once again came under the control of the Armed Forces of Pakistan on October 12, 1999, by virtue of the Proclamation of Emergency issued by General Pervez Musharraf, Chairman Joint Chiefs of Staff Committee and Chief of Army Staff, on October 14, 1999, and published in the Gazette of Pakistan, Extraordinary Part I, at page 1265, on the said date. By virtue of the said Proclamation Pervez Musharraf also assumed the office of Chief Executive of the Islamic Republic of Pakistan. The Constitution was again held in abeyance by the Provisional Constitution Order No. 1 of 1999, issued by the Chief Executive onOctober 14, 1999and published in the Gazette of Pakistan, Extraordinary Part I, at page 1267, on the said date as well. However, the said Order provided, in Art. 2 thereof, that notwithstanding the abeyance of the Constitution,Pakistanshall, subject to the said Order and any other Order made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution. The Legal Framework Order 2002 (Chief Executive’s Order No. 24 of 2002), promulgated on August 21, 2002 and published in the Gazette of Pakistan, Extraordinary Part I, at page 1031, on the said date, in Article 4 thereof, provided that the provisions of the constitution, as amended by the said Order and by such other Order, as may be promulgated thereafter, shall stand revived on such date as the Chief Executive may, by notification in the Official Gazette, appoint and that different days may be so appointed in respect of different provisions. The Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002), promulgated on October 9, 2002 and published in the Gazette of Pakistan, Extraordinary Part I, at page 1295, on the said date, further amended Arts. 51, 106 and also amended Arts. 179, 193 and 195 of the Constitution and the Legal Framework (Second Amendment) Order, 2002, (Chief Executive's Order No. 32 of 2002), promulgated on October 26, 2002 and published in the Gazette of Pakistan, Extraordinary Part I, at page 1469, on the said date, further amended Arts. 59 and 152A of the Constitution. The Preamble, Arts. 1 to 58 (both inclusive), Arts. 64 to 100 (both inclusive), Arts. 139 to 231 (both inclusive), Arts. 240 to 280 (both inclusive), the Annex and the Schedules to the Constitution were revived, on November 16, 2002, by Statutory Notification (vide S.R.O. 799(I)/2002), issued on November 15, 2002 and published in the Gazette of Pakistan, Extraordinary Part II, at page 3207, on November 16, 2002. Thereafter Arts. 59 to 63 (both inclusive) and Arts. 232 to 239 (both inclusive) were revived on March 12, 2003, the day the members elected to the Senate took oath ofoffice; Arts. 105 and 127 were revived on November 11, 2002, the day the first Chief Minister took oath of office; Arts. 101 to 104 (both inclusive) Arts. 106 to 126 (both inclusive) and Arts. 128 to 138 (both inclusive), were revived on November 25, 2002 and the remaining provisions of the Constitution were revived on December 31, 2002 by virtue of Statutory Notification (vide S.R.O. 828(I)/2002), issued on November 22, 2002 and published, in the Gazette of Pakistan, Extraordinary Part II, at page 3273, on November 23, 2002. Section 10 of the Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003), published in the Gazette of Pakistan, Extraordinary Part I, at page 149, on December 31, 2003, has now validated and affirmed all the amendments made in the Constitution by the Legal Framework Order, 2002 LFO (LFO (C.E.O. No. 24 of 2002)), the Legal Framework (Amendment) Order, 2002 (C.E.O. No. 29 of 2002) and the Legal Framework (Second Amendment) Order, 2002 (C.E.O. No. 32 of 2002), further amended Arts. 41, 58, 112, 179, 195, 243, 268 and 270AA of the Constitution and deleted Art. 152A thereof, inserted by the said LFO (C.E.O. No. 24 of 2002), with immediate effect. During the period of unconstitutional rule, between 3rd of November, 2007 and 15th of December, 2007, President Pervez Musharraf, by Constitution (Amendment) Order, 2007, President's Order No. 5 of 2007, purported to amend Articles 175, 186A, 198, 218, 270B and 270C and add new Article 270AAA to the Constitution w.e.f. November 20, 2007; and, by Constitution (Second Amendment) Order, 2007, President's Order No. 6 of 2007, he also purported to amend Articles 41, 44, 193, 194, 208 and 270C to the Constitution w.e.f. December 14, 2007.</code></pre>The said amendments, were not validated by the Parliament. They were also held to void ab initio and of no legal effect by the Supreme Court in C.P. No. 09 of 2009 SHCBA v/s Federation of Pakistan on 30th September, 2009. Thereafter section 2 of the Constitution (Eighteenth Amendment) Act, 2010 subject to Art. 264 and the provisions of the said Act : (a) declared 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), "…..to have been made without lawful authority and of no legal effect" and, therefore…(stood) repealed" ; and (b) Repealed the Constitution (Seventeenth Amendment), Act, 2003 (III of 2003), which received the assent of the President onDecember 31, 2003. The Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010) was published in the Gazette of Pakistan, Extraordinary Part I, at page 267, on April 20, 2010, (w.e.f. April 19, 2010). In 1973, the framers of the Constitution of Pakistan envisaged a parliamentary form of government for Pakistan. After two periods of unconstitutional rule, under President General M. Zia-ul-Haq and President General Pervez Musharraf and drastic amendments wrought by the Constitution Eight Amendment Act, 1985 and the Constitution Seventeenth Amendment Act, 2003, the Constitution in 2010, in fact, provided for a quasi presidential form of government. One of the main purposes of the Eighteenth Amendment Act, by effecting changes in Articles relating to the powers of the President and the Prime Minster, was to restore the balance of power in favour of the Prime Minister of Pakistan. Article 175A, inserted by the Eighteenth Amendment Act of 2010, now provides for a two tier system of appointment of Judges, where under nominations for appointment of Judges of the Superior Courts are to be made by the Judicial Commission, consisting primarily of members of the judiciary and the Bar, which are required to be confirmed by a Parliamentary Committee, in which the Treasury and the Opposition have equal representation. In CP No. 14 of 2010, Supreme Court Bar Association v/s Federation of Pakistan, the Petitioners called in question amendments to several Articles of the Constitution through the Eighteenth Amendment Act, 2010. In particular, the insertion of new Article 175A was challenged on the ground that it violated one of the salient features of the Constitution, namely Independence of Judiciary. The Petitioners argued that the judgments of the Supreme Court, relating to the Basic Features doctrine, should be revisited by the Court and the provision should be struck down on the touchstone of the said doctrine. In its interim Order in CP No.14 of 2010, the Court drew attention to the reservations, concerns and suggestions of the Petitioners with respect to the new Article 175A and, in deference to the mandate of Parliament to legislate, referred the matter of the constitutional amendment to the process for appointment of Judges of the Superior Courts back to it for reconsideration, in the light thereof. Thereafter, the Parliament passed the Nineteenth Amendment Act, 2010, which was published in the Gazette of Pakistan, Extraordinary Part I, at page 01, onJanuary 04, 2011. Under the said Act, Article 175A of the Constitution was amended so as to provide for the inclusion of four (4) senior most Judges of the Supreme Court on the Judicial Commission. The Parliamentary Committee is now required to hold its meetings in-camera, record its reasons for not confirming, by a ¾ majority of its total membership, the nomination and forward the same to the Judicial Commission. However, under the Nineteenth Amendment Act, 2010 the Parliament specifically retained the proviso to clause (12) of the Article, where under the Commission is required to send another nomination, in case its nominee is rejected by the Committee. In C.P. No. 10 and 18 of 2011, Munir Hussain Bhatti and others v/s The Federation of Pakistan, the decision of the Parliamentary Committee to reject the nomination of six (6) Additional Judges was challenged by the aggrieved Judges. The Supreme Court, in its Order dated 4th of March, 2011, was of the view that the Parliamentary Committee had usurped the Constitutional Jurisdiction of the Commission, in passing judgment on the professional calibre and legal acumen of the said judicial nominees; which is the exclusive domain of the Commission. The Court held that the reasons to be recorded by the Committee for rejection of a nomination were justiciable and agreed that in this case they were irrelevant, unjustified and improper under the law and without legal force. The decision of the Parliamentary Committee was set aside and the Federation was directed to issue necessary notifications for the appointment of the judicial nominees.