Constitutional History of Pakistan

The Islamic Republic of Pakistan covers nearly 804,000 square kilometres of the former
Indus Valley. Today, it shares borders with Iran and Afghanistan on the west, China on the
north, the Arabian Sea on the south, and India on the east. While Pakistan is ethnically
diverse, it is overwhelmingly Muslim, which has led to tensions with India over the former
British-Indian states of Jammu and Kashmir on the northeast boarder. Additionally, hyper
urbanization has led to class tension. Out of 187 million citizens, 36 percent live in cities,
with approximately 830,000 people in the capital city of Islamabad. The largest city,
Karachi, contains 13 million people.

Constitutional history
Prior to its independence from Britain in 1947, Pakistan was originally governed under the
Government of India Act of 1935. This act, drafted by the colonial master Britain, functioned
as Pakistan’s constitution at the time and provided for a strong central government, a
governor-general with unreviewable powers, and very limited representation which
continued feudal-like politics. Following independence, a constituent assembly was elected
and tasked with drafting a new Constitution. On 23 March 1956, after a difficult drafting
process that included a replacement of the assembly by the governor-general, a new
constitution was adopted. It abolished the office of the governor-general and replaced it
with a president and prime minister who would share the executive functions. In addition, it
created a unicameral legislature with equal seats for the East and West Pakistan, but it
maintained the central power of the government by ensuring that the President remained
powerful and the provinces never had more power than the national government.

Before the country’s first parliamentary elections were to be held, President Iskandar Mirza
abrogated the constitution and established martial law. The President feared that the
influence of East Pakistan would undermine his hold on power. He appointed army chief
Ayub Khan as the martial administrator, which gave the military a strong hold on power,
with Khan at its head. Khan was later elected president as the result of 1958 coup, and on 1
March 1962, he promulgated a new constitution. This document established a legislature
whose sole purpose was to approve and legitimize government decisions. It abolished the
office of the prime minister, giving sole executive authority to the President, who, it
mandated, had to have held a rank higher than lieutenant-general in the military for at least
20 years. While Khan was re-elected in 1965, he was forced to resign in 1969. General
Yahya Khan replaced him, martial law was declared, and the Constitution was suspended.
After East Pakistan declared its independence in 1971, becoming the new state Bangladesh,
Ali Bhutto took over the presidency and established a new constitution on 14 August 1973,
current to date.

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 Constitutional History of Pakistan

1973 Constitution
The current Constitution of Pakistan contains more than 250 articles, and several important
amendments. Imbedded in the document are certain key components of Islam, including the
subservient status of women. The Constitution also establishes a federal state, dividing
power between the local and national governments. The national power is divided between
the President, the Prime Minister, the Legislature, and the Courts.

Executive branch
The President of Pakistan is the Head of State. He is elected by an electoral college made up
of representatives from both houses of the legislature and the provinces. The Presidential
mandate is limited to two 5 year terms, but he may resign or be impeached by a two-thirds
vote of Parliament. The President may grant pardons and appoint ministers, the provincial
governors, and the chiefs of the armed forces. The President also may veto legislature,
though this can be overridden by a majority vote in both houses of the Parliament. He may
also suspend certain individual rights in cases of emergency. In 1985, the President was
given the power to dissolve the National Assembly by amendment, but this power, along
with the ability to appoint military chiefs, was removed by a 2010 amendment.

The Prime Minister is the Head of Government, and is appointed by the President from the
lower house of Parliament. The Prime Minister in turn shares the power to appoint Cabinet
members with the President. The Cabinet acts as an advisory body. In cases where the
President must seek the advice of the Prime Minister and Cabinet, he may ask them to
reconsider only once, and if the advice does not change, the recommendation must be
followed. As the Head of Government, it is also the Prime Minister’s role to oversee the
execution of laws and the smooth functioning of government.

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Legislative branch
The Constitution creates a bicameral Parliament, consisting of an upper and lower house.
The upper house is the Senate, which has 100 members. The Constitution provides that
Senators are to be elected by the provincial assemblies, the tribes, and the capital. It also
mandates that at least four women are to be elected from each province. The Chair and the
Deputy Chair of the Senate are elected to three year terms. While the Senate may introduce
and pass most legislation, it cannot pass finance bills or approve the federal budget. That is
left to the lower house, or the National Assembly. The 272 members of the Assembly are

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 Constitutional History of Pakistan

elected for a maximum of 5 years by a direct vote. 60 seats are reserved for women, and 10
are reserved for non-Muslim minorities such as the Christians, Hindus, and Sikhs. The lower
house may pass any kind of legislation, including financial legislation.

Judicial branch
Pakistan’s Judiciary is comprised of a Supreme Court, a High Court for each province, and
any other lower courts Parliament creates. The Supreme Court is the highest judicial body,
with original and appellate jurisdiction over civil, criminal, and constitutional cases. It is the
final arbiter in all constitutional disputes cases. It may also advise the other branches in the
formation and passing of laws. The Supreme Court may also exercise judicial review that is
binding on all courts. The Chief Justice is appointed by the President, and the other Justices
are appointed by the President with the advice of the Chief Justice. These judges may
remain in office until the age of 65. The Chief Justice also advises the President, the
provincial governors, and the chief justices of the high courts, on appointment of judges to
the provincial high courts. In addition to these constitutionally mandated courts, there is
also the Federal Sharia Court of eight Muslim judges and a chief justice selected by the
President. This court has jurisdiction over deciding whether laws are repugnant to Islam,
and if a law is found to violate principles of Islamic law, the President or provincial governor
must attempt to bring the law into conformity. It also has appellate jurisdiction over
decisions from the criminal courts involving such offenses as intoxication, intercourse, or
theft.

In addition to these three branches, the Constitution also provides for an Ombudsman, or
the Mohtasib. The President appoints the Mohtasib to one four year term. The holder of this
office is tasked with enforcing administrative accountability and investigating wrongs
committed against citizens by members of the government. In rectifying injustices
committed through maladministration. The Mohtasib may award compensatory damages in
an effort to bridge the gap between citizens and their government, curb government abuses
and misuse of powers, and to improve government administrative processes. However, the
Mohtasib does not have jurisdiction over any cases involving personal grievances of
government officials, foreign affairs, national defence, or the armed services.

Provincial governments
Because the Constitution establishes a federal system of government, it also created four
provincial governments with considerable autonomy. Each of the provinces has a governor,
a Council of Ministers appointed by the governor, and a provincial assembly. The assemblies
are elected by a direct vote, with reserved seats for minorities.

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 Constitutional History of Pakistan

Constitutional Challenges
Since the implementation of the 1973 Constitution, Pakistan has continued to be plagued
with political challenges. The Constitution provided for provincial autonomy in reaction to
the loss of Bangladesh in 1971, which seceded because the Bengali minority felt
marginalised. Despite these lessons and the inclusion of provincial autonomy in the
Constitution, the national government has continued to maintain authority.

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In addition to the federalism questions, questions remain about the role of the military in
politics. The Constitution contained provisions declaring it treason not only to abrogate but
to attempt, conspire, or plan to subvert the Constitution in an effort to prevent future
military takeovers. However, in 1977, army chief Zia ul-Haq staged a coup, proclaimed
martial law, suspended the Constitution, and established a Provisional Constitutional Order.
The PCO gave the military not only the power to rule, but to amend the Constitution to
remain in power. Although the 1973 Constitution was revived in 1985, it was amended to
shift powers from the Prime Minister to the President and to give the President the power to
dissolve the National Assembly. This amendment further weakened provincial autonomy, the
legislature, and the judiciary. This amendment was also used by the President to dismiss the
elected governments of Prime Minister Benazir Bhutto and Nawaz Sharif in the early 1990s
in the wake of corruption charges. Sharif returned to power in 1997, but he was deposed by
a coup led by army chief General Pervez Musharraf two years later.

These coups highlighted yet another problem under the 1973 Constitution: the weakness of
the judiciary. Even though the Courts are meant to act as protectors of the Constitution and
the separation of powers, they have often given way to Pakistani leaders on matters of
constitutional law, either in the name of necessity or survival. When Musharraf took over
the government in 1999, the Supreme Court validated his declaration of emergency and
creation of another PCO as a state necessity. The PCO subsequently deprived them all of
their authority to act as a check on the government by barring them from making decisions
against the President or questioning the state of emergency. In fact, the Supreme Court
expanded Musharraff’s authority by giving him the power to amend the Constitution.
However, in 2007, Musharraf was elected in a second election. He again suspended the
Constitution, declared a state of emergency, and established a PCO. The PCO passed a
series of laws curbing the freedom of the press and establishing military courts with the
power to try government critics. When the Supreme Court refused to sign off on this
decision by the President and the PCO, Musharraf attempted to impeach the Chief Justice
on corruption charges. This action led to a boycott of the judicial system led by the nation’s

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 Constitutional History of Pakistan

lawyers, who viewed the move as politically charged. By May 2007, the movement led to
mass protests, and after Benazir Bhutto was assassinated upon return from exile later that
year, Musharraf’s popular support was diminished. He was forced to resign amid
impeachment proceedings begun by a new coalition government in 2008.

The 2010 constitutional amendments were meant to prevent another military coup by
limiting the powers of the President and restoring powers to the provinces. The
18 th Amendment also removed from the President the power to dissolve the National
Assembly and the power to appoint military chiefs. However, many remain concerned about
the execution of these provisions, especially in regards to federalism and revenues. There
also remains concern that, while the military still retains political power, military coups will
continue to happen. Some see a strengthened judiciary that refuses to validate such coups
as the solution, forcing leaders to stay within the guidelines of the rule of law and the
military to remain out of the political sphere.

System of government under 1973

Constitution
Branch Hierarchy Appointment Powers Removal

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 Constitutional History of Pakistan

· Impeachment
on grounds of
· Head of State
physical or mental
and representative
incapacity, gross
of the Republic,
Elected by misconduct, or
President appoints cabinet,
electoral college violating the
veto legislation,
Constitution by
dissolve the
two thirds of both
National Assembly
houses of
Parliament
Executive · Appoints
· Upon
cabinet, oversees
resignation or
Elected by execution of laws
Prime upon dissolution of
National and ensures the
Minister the National
Assembly “smooth
Assembly by the
functioning of the
President
state”
· Upon
· Appointed by · Makes
resignation or
Cabinet president and recommendations
upon removal by
prime minister to the executives
President
· Upon written
· 100 members · Introduces and
resignation, if
elected by passes legislation
Senate removed or leaves
provincial except finance
qualifying party,
assemblies bills
upon death
Legislative · Upon written
resignation or
· Introduces and
National · 272 members upon dissolution of
passes any
Assembly by direct vote the National
legislation
Assembly by the
President

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 Constitutional History of Pakistan

· Chief Justice
appointed by · Retirement at
President and · Judicial review, age 65, resignation
Justices advise other or removal by legal
Supreme
appointed by branches on the proceedings as
Court
president under drafting and defined by the
recommendation passing of laws Constitution
from Chief
Justice
· Retirement at
· Chief Justice · Decides
age 65, resignation
Judicial Federal and justices whether laws are
or removal by legal
Shariat selected by the repugnant to
proceedings as
Court President Islam
defined by the
Constitution
· Enforces
administrative
· Appointed by · Term expires
accountability and
the President for after four years,
Mohtasib investigates
a single 4-year removal by the
wrongs committed
term President
by the government
against individuals

Timeline
British create independent Muslim nation of East and West Pakistan from
1947
Indian colony, Muhammad Ali Jinnah becomes first Governor General
1948 Jinnah dies, war with India over Kashmir erupts
1951 Governor General Liaquat Ali Khan assassinated
1956 New Constitution proclaims Pakistan an Islamic republic
1958 General Ayyub Khan takes power and declares martial law
1960 General Ayyub Khan becomes President
1969 General Yahya Khan takes over as President
Civil War between East and West Pakistan begins over eastern attempts to
1971
secede, East Pakistan becomes Bangladesh with support of India
1973 Zulfiqar Ali Bhutto takes control of the country
Amid riots protesting allegations of vote-rigging by Bhutto’s party, General
1977
Zia ul-Haq stages military coup
1978 General Zia becomes President

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 Constitutional History of Pakistan

1979 Bhutto is executed by hanging

1985 Martial law and ban on political parties lifted
General Ishaq Khan becomes acting President after General Zia dies in
1988
plane crash and later elected President
Opposition leader and Prime Minister Benazir Bhutto dismissed for
1990
corruption
1991 Islamic Shariah law incorporated into legal code
Benazir Bhutto takes over when President Khan and Prime Minister Sharif
1993
resign under pressure from the military
1996 Bhutto government dismissed under charges of corruption
1997 Sharif returns as Prime Minister
General Pervez Musharraf oversees military coup that overthrows Prime
October 1999
Minister Nawaz Sharif
20 June 2001 Musharraf names himself President
President Musharraf wins referendum to have another 5 years in office as
April 2002 process is criticized as irregular, President given broad new powers over
intense opposition
Nation Security Council approved by Parliament, cementing military role
April 2004
in civilian affairs
Mass protests following President’s dismissal of Chief Justice Iftikhar
Mohammed Chaudhry leads President to expand media controls, Supreme
2007 Court reinstates the Chief Justice and refuses to declare President’s new
election victory, President declares emergency rule and replaces the
Supreme Court Justices who rule in his favour
27 December
Former Prime Minister Benazir Bhutto assassinated at election rally
2007
Parliament agrees to begin impeachment of President, who soon resigns,
2008
widower of Bhutto, Asif Ali Zardari, elected new President
Mass protests force Parliament to reinstate the dismissed Supreme Court
2009
Justices
Constitutional reforms passed by Parliament transferring many
January 2010
presidential powers to the Prime Minister

Source: www.constitutionnet.org

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