Fahad Akhlaq Khan

Registration# 3608- FSL/LLB/F-12

LLB (Hons) Shariah & Law
Constitutional History of Pakistan

Reasons of abrogation of 1956 Constitution:

Following are causes failure of constitution of 1956;
1. Lack of Leadership played its role in the failure of the constitution of 1956. For
Lack of Leadership, Pakistan never found its way to development of its
parliamentary system. So, parliamentary system under first constitution of Pakistan
failed.
2. Every political party tries to gain power and no one was interested for elections. So,
these circumstances, elections were delayed and such delay caused failure of
parliamentary system under first constitution of Pakistan 1956.
3. Nonexistence of economic equality in the country was a cause of failure of
constitution.
4. After enforcement of constitution of 1956, role of President remained very
authoritative. His undue interference with political parties and ministers kept
Pakistan away from constitutional development.
5. Constitution of 1956 provided those principles which never proved convenient for
development of parliamentary system. In this way, parliamentary system failed to
develop under first constitution of Pakistan.
On 8th October 1958, President Major General Iskandar Mirza abrogated the 1956
constitution, imposed martial law and appointed General Mohammad Ayub Khan as the
Chief Martial Law Administrator. However, only three weeks later General Ayub deposed
Iskandar Mirza on 27th October 1958.

Constitution of 1962
In 1958 Ayub Khan had promised a speedy return to constitutional government. For this
purpose Basic Democracies Order 1959 was passed, which provided that there will be

80,000 basic democrats, 40,000 from each province. President and National Assembly will
be elected by these basic democrats members.
President General Ayub Khan appointed a Commission on 17 th February 1960 to report on
the future political framework. The Commission was headed by the former Chief Justice of
Pakistan, Mr. Mohammad Shahabuddin, and had ten other members, five each from East
Pakistan and West Pakistan, composed of retired judges, lawyers, industrialists and
landlords. The commission's recommendations for direct elections, strong legislative and
judicial organs, free political parties, and defined limitations on presidential authority went
against Ayub Khan's philosophy of government, so he ordered other committees to make
revisions.

Salient Features:
The constitution was announced by President Ayub on 1st March 1962 and finally came
into effect on 8th June 1962. It was a comprehensive document, comprising 250 articles, 12
Parts and three schedules. It did not have a representative character but was granted by
one man.

1. Title of the State:

When the constitution was enforced title of the State was given as the Republic of
Pakistan. Later 1st amendment was made in the constitution and the word Islamic
were inserted in the title and therefore title was described as The Islamic Republic
of Pakistan.

2. Nature of the Constitution:

Constitution of 1962 was a written document. It was a rigid constitution; procedure
to amend this constitution was complicated. Any amendment to this constitution
required not only at least 2/3 majority of Parliament but also authentication from
President.

3. Federal System:
The introduction of federal system was a matter already decided in the Objectives
Resolution. It was also adopted later under 1956 constitution and also retained by
the Framers of the 1962 Constitution. According to the pattern of division of
powers, as sketched out in the constitution, the powers of the central government
are enumerated and expressed in a list while all residuary powers belong to the
provinces.

4. Presidential System:
Presidential System was outclass feature of this constitution. It advocated
presidential form of government with absolute powers vested in the President. He

was elected indirectly; the members of Basic Democrats were made Electoral
College for President. The President was to be a Muslim not less than 35 years of
age and qualified to be a member of National Assembly. The term of the President
was five years and nobody could hold the post for more than two consecutive terms.
The President was the head of the state as well as the head of the Government. The
President had the power to appoint Provincial Governors, Federal Ministers,
Advocate General, Auditor General and Chairmen and Members of various
administrative commissions. All ministers were accountable to him alone. As the
Supreme Commander of the Armed Forces of Pakistan, the appointment of the
chiefs of the forces was also his duty. President also possessed certain legislative,
military and judicial powers. Even he had power to issue an ordinance and to veto
legislation.
The president had the power to proclaim the emergency when the integrity or the
sovereignty of Pakistan was threatened.

5. Federal Legislation:
The Constitution of 1962 provided for a unicameral legislature. The central
legislature was consisted of the President and only one house known as National
Assembly. There were 156 members. Principle of parity was retained and seats were
distributed equally between the two wings of the country. 150 members were elected
by an electoral college of 80,000 Basic Democrats. Half elected by constituencies in
East and other half by constituencies in West Pakistan. Six seats were reserved for
women, three from East and three from West Pakistan.
The tenure of National Assembly was five years unless it was sooner dissolved by the
President. A candidate for the election of National Assembly had to be at least 25
years of age and his name had to be appeared on the electoral role for any electoral
unit.

6. Indirect Election:
Under the constitution of 1962 the method of indirect elections was adopted. 80,000
BD members were elected by the people. 40,000 members were elected from East
and other 40,000 members were elected from West Pakistan. These elected BDs
constituted an electoral college, which elected the President, members of National
Assembly and the members of Provincial Assemblies.

7. Islamic Provisions:
Islamic clauses were included in the Constitution. These could not be challenged in
any court of law. No law could be passed against the injunctions of Islam. Muslims
were allowed to live their lives according to the teachings of Quran and Sunnah.
Practices contrary to Islamic teachings such as gambling, prostitution and adultery
would be eliminated from the society.
Two important institutions were created.

I.
II.

Institute of Islamic research, its purpose was to promote the study of Islamic
history and fiqah and carry out research in this regard.
Islamic Ideology Council, comprising of religious scholars, was established.
Its objective was to eliminate non-Islamic laws and bring them in accordance
with shariah. But this was an advisory body; this was to advise to the
parliament the NA and the President.

8. Fundamental Rights:
The constitution of 1962 granted certain fundamental rights to the citizens of
Pakistan. These are basic human rights which cannot be taken away even by
legislation in normal circumstances. These rights include right to speech and
expression, freedom to choose profession, freedom to profess religion etc.
Minority rights were also incorporated in the constitution. These rights enabled
minorities to observe their rights and religious rites.

9. Judiciary:
Freedom of Judiciary was introduced and Supreme Court was responsible for
interpretation of laws. Supreme Court was the highest court of appeal. Its
jurisdiction was same as 1956s constitution. Two High Courts were established at
Provincial level. 65 years was the age of retirement of judges.
Supreme Judicial Council was established. It consisted of 5 judges including Chief
Justice of Supreme Court and two senior judges, and Chief Justice of Each High
Court. The council was empowered to hear the cases of misconduct against judges.

10. National Language:

Both Urdu and Bengali were made the national languages of Pakistan and English
was declared as the official language of the country for the first ten years.

11. Objectives Resolution was adopted as preamble.

12. There were two Federal Capitals Dhaka and Islamabad.

Failure of the Constitution of 1962:

The period of President Ayubs rule was a bit longer and stable. But it was not based on
political participation. The opposition continued to gain strength and ultimately the time
approached when the people stood up against the government. The political parties were
already active against the government and demanded the restoration of parliamentary
system and direct elections. All the opponents of the government joined hands and

organized demonstrations against the government. There were country-wide street

demonstrations, with events of violence and terrorism, demanding the resignation of the
government.
The political situation became more and more alarming and brought law and order
situation at the edge of anarchy. President Ayub Khan announced the transfer of political
authority to Yahya Khan, the Commander in Chief of the Armed Forces, who imposed
Martial Law on 25th of March 1969. All the legislative Assemblies were dissolved and the
constitution abrogated.

The 1973 Constitution

The present Constitution is the third constitution of the country which was drafted and
passed by the National Assembly of Pakistan on April 10, 1973. The President gave his
assent on 12th April 1973 and enforced on August 14, 1973.

Salient Features:
The Constitution of 1973 is different from the earlier Constitution of 1956 and 1962. It
consists of 280 articles, 12 parts, and 6 schedules with Objectives Resolution forming the
preamble of the constitution.
Following are the salient features of the constitution of 1973.

1. Nature of Constitution:
Like the previous constitutions of 1956 and 1962 the Constitution of 1973 is a
written document. It is a rigid constitution. Two-third majority of both the Houses is
required for amendment.

2. Federal System:
The Constitution of 1973 has introduced a Federal system in the country. The
federation of Pakistan consists of a Central Government and four Provincial
Governments. Powers of the Federation have been enumerated in the Federal
Legislative residuary powers belong to the Provinces. Concurrent list was abolished
in 18th amendment.

3. Parliamentary Form of Government:

The Constitution provides for Parliamentary form of Government both at the center
and in the provinces. Both the Prime Minister and his cabinet and the Chief
Ministers and their cabinets are held responsible to the National and Provincial
Assemblies.

The tenure of the office of Prime Mister and Chief Ministers is 5 years. They may be
removed by the assemblies through a vote of No-Confidence.

4. Federal Legislature:
The Federal Legislature consists two houses and the President. The Lower House is
called the National Assembly directly elected by the people on the basis of one man
one vote for a term of 5 years. The upper House is called the Senate elected by the
members of National Assembly Provincial Assemblies for six years on the basis of
Proportional Representation. Half of the members of Senate are retired after every
three years. The National Assembly is subject to dissolution but not the Senate.
Senate is a permanent house.
The Constitution of 1973 gives a direct method of election. The members of the
National Assembly, the Provincial Assemblies are directly elected by the people.
Total seats of National Assembly are 342 out of which 272 are general seats, 10 for
minorities and 60 seats are reserved for women. Speaker is the presiding officer of
National Assembly.
The upper house Senate is composed of 104 seats out of which 100 seats are general
and 4 seats are reserved for minorities (1 from each province). The Senate is
presided over by Chairman.

5. President:
The constitution provides that the President is the head of the state. The President is
to be a Muslim above 45 years of age and is to be elected by a joint sitting of
members of the Parliament for 5 years. He can be re-elected but cannot hold office
for more than two terms. The President is to act on the advice of the Prime Minister
of Pakistan. The President can be removed on the grounds of physical or mental
incapacity or impeached on charges of violating the Constitution or gross
misconduct. The President is authorized to appoint the Attorney General, Judges of
Supreme Court and High Courts, and the Chief Election Commissioners.
When the National Assembly is not in session the President can promulgate an
ordinance. The President is also authorized to pardon the offenders except in
Hudood and Qisas cases.

6. Islamic Provisions:
The title of the state is mentioned as Islamic Republic of Pakistan and Islam is
declared as state religion. Steps shall be given to enable the Muslims of Pakistan to
order their lives in accordance with the fundamental principles and basic concepts
of Islam. Any law that is contrary to the teachings of Quran and Sunnah shall be
declared null and void.
It is important to mention that the Qadiani group or the Lahori group who call
themselves "Ahmadis were declared as Non-Muslim minority.

There is a Council of Islamic Ideology which shall guide the government in respect
of Islamic teachings, their implementation and propagation. Its chairman and
members are appointed by President. Its advice is not binding on the government.

7. National Language:
The 1973 Constitution has declared Urdu as the national language of Pakistan.
However English has been retained as the official language for 15 years. Similarly
regional languages have been provided full protection.

8. Independence of Judiciary:
An Independent Judiciary has been provided in 1973 Constitution. The judges are
appointed by the President. They cannot be removed from service before the end of
their term except on the recommendation of the Supreme Judicial Council.
Constitution provides that there shall be Supreme Court on the federal level and
five High Courts, one in Capital and four in Provinces. Supreme Court is the highest
judicial organ of the country and the highest court of appeal. Supreme Court
possesses three types of jurisdictions i.e, original, appellate, and advisory.
Provincial judiciary is headed by High Courts. They have two types of jurisdictions
original and appellate. Wirt jurisdiction is also granted to the High Courts.
Supreme Judicial Council is also established. The council has power to hear the
cases of misconduct against judges.

9. Fundamental Rights:
The Constitution grants and protects the fundamental rights of the citizens of
Pakistan. They include the right to life, property, profession, liberty of thought and
expression, freedom of association, religion, equality of citizens etc. The
fundamental rights cannot be suspended without applying constitutional methods.