Introduction to the Constitution of Pakistan

 

The Constitution of Pakistan is more than just a document; it is a living testament to the democratic aspirations and cultural ethos of a nation that has witnessed profound changes over the decades. Established as the supreme law of the country, the Constitution not only defines the legal framework but also embodies the collective will and values of the Pakistani people. It serves as the foundational pillar for governance, rights, and the relationship between the state and its citizens.

This guide is designed to walk you through the Constitution in a manner that is comprehensive yet comprehensible. Each section is crafted to provide clarity and insight into the various aspects of the Constitution, from the fundamental rights of citizens to the complex mechanisms of governance and judicial authority. By breaking down legal jargon and contextualizing the articles and clauses, we aim to make the Constitution not just an abstract legal document, but a tangible, understandable, and relevant piece of literature for every Pakistani.

The History and Formation of the Constitution of Pakistan

 

The Constitution of Pakistan, enacted on 14th August 1973, represents a culmination of political evolution, struggle, and compromise. Born out of the tumultuous history of the Indian subcontinent, it embodies the lessons learned from past constitutional experiments under British rule and the brief periods of constitutional development in Pakistan itself. The document has undergone several amendments, reflecting the dynamic political landscape and the evolving needs of a growing nation.

From its inception, the Constitution has been more than a set of legal clauses; it has been a beacon of hope and a framework for building a nation that balances traditional values with modern democratic principles. It underscores the aspirations for an equitable society, guided by the principles of social justice, freedom, and equality as enshrined in Islam.

The Making of the Constitution

The history of the Constitution of Pakistan is a narrative of resilience and determination. After gaining independence in 1947, Pakistan embarked on a challenging journey to establish a constitutional framework that could encapsulate the aspirations of its diverse population. The 1956 Constitution, Pakistan’s first, declared it an Islamic Republic, laying down the early foundations of the governance structure. However, political instability led to its abrogation in 1958.

The 1962 Constitution, introduced during the military regime, marked a shift to a presidential system, but it faced criticism for centralizing power and limiting democratic freedoms. The abrogation of this constitution after the fall of the military government led to a period of constitutional vacuum.

It was against this backdrop of political upheaval that the 1973 Constitution was born. Drafted by an elected assembly, it represented a consensus among various political forces and regions of Pakistan. This Constitution, with its emphasis on parliamentary democracy and fundamental rights, was a significant departure from previous documents. It was an expression of the collective will to establish a democratic, inclusive, and progressive nation.

Amendments and Evolution

The Constitution of 1973, while robust, has not been static. It has evolved through various amendments, reflecting the changing political, social, and economic landscapes of Pakistan. Key amendments have included the Eighth Amendment, which granted significant powers to the President, and the Eighteenth Amendment, which reversed these changes and restored parliamentary supremacy.

Each amendment to the Constitution is a chapter in Pakistan’s ongoing story of constitutional development. They reflect the nation’s efforts to refine and adapt its supreme legal framework in response to internal challenges and external pressures.

Anatomy of the Constitution of Pakistan

The Constitution of Pakistan is a comprehensive document, intricately structured to cover every aspect of governance and societal regulation. It is divided into 12 Parts and 280 Articles, along with various Schedules that detail specific rules and procedures.

This structure not only outlines the powers and responsibilities of different branches of government but also delineates the relationship between the federal and provincial authorities and sets forth the fundamental rights of citizens.

The Preamble: A Declaration of Ideals

The Preamble to the Constitution is a declaration of the country’s ethos and democratic values. It asserts the sovereignty of Allah, the Islamic way of life, and the importance of democracy, freedom, equality, tolerance, and social justice as enshrined in Islam. It sets the vision for a federation based on the principles of federalism and parliamentary form of government.

Major Parts and Their Significance

• Part I: Introductory (Articles 1-6): This part establishes the territory of Pakistan and the status of its regions.
• Part II: Fundamental Rights and Principles of Policy (Articles 8-40): It outlines the basic rights of citizens and the principles that guide state policy.
• Part III: The Federation of Pakistan (Articles 41-100): This section details the structure of the federal government, including the election and powers of the President and the functioning of the Parliament.
• Part IV: Provinces (Articles 101-140A): It elaborates on the governance of provinces, their legislative assemblies, and the role of Governors.
• Part V: Relations between Federation and Provinces (Articles 141-159): This part discusses the administrative relationship between the federal and provincial governments.
• Part VI: Finance, Property, Contracts, and Suits (Articles 160-174): It covers financial matters, including the distribution of revenues between the federation and provinces.
• Part VII: The Judicature (Articles 175-212): This section outlines the structure and role of the judiciary, including the Supreme Court, High Courts, and other courts.
• Part VIII: Elections (Articles 213-226): It governs the conduct of elections and the role of the Election Commission.
• Part IX: Islamic Provisions (Articles 227-231): This part ensures that all laws conform to the teachings of Islam.
• Part X: Emergency Provisions (Articles 232-237): It outlines the powers and procedures during emergencies.
• Part XI: Amendment of Constitution (Articles 238-239): This section explains the process of amending the Constitution.
• Part XII: Miscellaneous (Articles 240-280): It covers a range of miscellaneous but essential provisions, including appointments to services, oath of office, and tribal areas.

Part I: Introductory

Part I of the Constitution of Pakistan, encompassing Articles 1 to 6, lays the foundation for the country’s legal and territorial framework. This section is crucial as it defines the geographical boundaries and the basic political structure of the state.

Article 1: The Republic and its Territories

Article 1 declares Pakistan as a Federal Republic known as the Islamic Republic of Pakistan and outlines its territories, including provinces, Tribal Areas, and territories that may be admitted into the federation in the future.

Article 2: Islam as the State Religion

Article 2 establishes Islam as the state religion of Pakistan, setting a tone for the integration of Islamic principles with the governance and legal system.

Article 3: Elimination of Exploitation

Article 3 focuses on eliminating exploitation and ensuring the well-being of the people, reflecting the Constitution’s commitment to social justice.

Articles 4 to 6: Rights of Individuals

These articles ensure the right of individuals to be dealt with following the law, their entitlement to the protection of the law, and the safeguard against retrospective punishment. They form the bedrock for the legal rights and protections available to every citizen.

Implications and Relevance

This part, though brief, is significant in its implications. It not only defines the physical and ideological boundaries of the state but also begins the detailed articulation of rights and principles that govern the citizens’ interactions with the state and with each other.

The recognition of Islam as the state religion while ensuring legal protections for all citizens sets the framework for a state that respects religious values while upholding individual rights.

 Part II: Fundamental Rights and Principles of Policy

Part II of the Constitution of Pakistan, comprising Articles 8 to 40, is at the heart of the document, delineating the fundamental rights guaranteed to citizens and the principles that guide the state’s policies.

Fundamental Rights: Articles 8-28

• Articles 8-11: These articles declare any law inconsistent with or in derogation of fundamental rights as void. They protect citizens from slavery, forced labor, and unjust treatment.
• Articles 12-17: These articles provide safeguards against retrospective punishment, ensure the protection of the law, and uphold the rights to a fair trial and freedom of movement.
• Articles 18-25: These articles guarantee the freedom of trade, business, and profession, the protection of property rights, and the equality of citizens before the law. Article 25, in particular, ensures equality for all citizens and prohibits discrimination based on sex alone.
• Articles 26-28: These articles protect against discrimination in services and provide for the preservation of languages, scripts, and culture.

Principles of Policy: Articles 29-40

This part of the Constitution is pivotal in linking the rights of the citizens with the state’s duties. It serves as a guiding framework for the government to formulate policies that ensure the realization of fundamental rights.

• Articles 29-34: These articles outline the principles of policy, directing the state to ensure social justice and eradicate social evils. They emphasize the need for the state to promote the well-being of women, children, and minority communities.
• Articles 35-40: These articles further elaborate on state policies regarding the promotion of education, public health, and the judiciary’s independence.

 Part III: The Federation of Pakistan

Part III of the Constitution of Pakistan, covering Articles 41 to 100, is dedicated to outlining the structure and functioning of the federal government. This part is fundamental in defining the power dynamics within the federation, the roles of key offices, and the functioning of national legislative processes.

Defining Federal Governance

Part III of the Constitution of Pakistan is instrumental in defining the democratic framework of Pakistan, establishing a balance of power between the President and the Parliament, and ensuring a robust legislative process. It embodies the principles of parliamentary democracy and federalism, key to the governance and political stability of Pakistan.

The President of Pakistan: Articles 41-49

Articles 41-49 detail the election, powers, and functions of the President of Pakistan. This includes the President’s role as the ceremonial head of state, the process of impeachment, and the powers vested in this office.

The Majlis-e-Shoora (Parliament): Articles 50-89

This section defines the bicameral structure of the Parliament, consisting of the National Assembly and the Senate. It covers the composition, duration, and functions of each house, including legislative procedures, passage of bills, and budget approval.

Articles 62-63 and 113 define the qualifications and disqualifications for membership of Parliament, ensuring that elected representatives meet certain standards of integrity and competence.

The Federal Government: Articles 90-100

These articles elaborate on the composition and responsibilities of the Federal Government, led by the Prime Minister as the chief executive. It includes the appointment of the Prime Minister, the federal cabinet, and the roles and responsibilities therein.

The relationship between the President and the Prime Minister, the process of forming the government, and the collective responsibility of the Cabinet to the Parliament are detailed, highlighting the balance and separation of powers within the federal structure.

Part IV: Provinces

Part IV of the Constitution of Pakistan, encompassing Articles 101 to 140A, details the governance structure at the provincial level. This part is crucial in understanding the distribution of powers and the autonomy of provinces within the federal framework. This part of the Constitution of Pakistan plays a significant role in the federal structure of Pakistan by granting significant autonomy to provinces.

This includes legislative powers, financial autonomy, and the ability to formulate policies relevant to provincial needs. The relationship between provincial governments and the central government, especially in legislative and financial matters, is also elaborated upon.

Provincial Assemblies: Articles 101-128

These articles outline the composition and function of the Provincial Assemblies, the election of Members of the Provincial Assembly (MPAs), and the role and powers of the Provincial Governors.

The legislative process within the provinces, including the passage of bills and budget approvals, is explained. Articles 118-128 focus on the appointment of the Chief Minister, the cabinet, and the collective responsibility of the cabinet to the Provincial Assembly.

Provincial Judiciary: Articles 129-140A

This section describes the organization and jurisdiction of the High Courts and other courts at the provincial level. It details the appointment of judges, their qualifications, and the process of their removal.

Article 140A, introduced through the Eighteenth Amendment, emphasizes the establishment of local government systems and devolution of political, administrative, and financial responsibility and authority to elected representatives of the local governments.

Part V: Relations between Federation and Provinces

Part V of the Constitution of Pakistan, comprising Articles 141 to 159, addresses the complex relationship between the federation and the provinces. This part is key to understanding how power and responsibilities are distributed and balanced in Pakistan’s federal structure.

Distribution of Legislative Powers: Articles 141-155

Articles 141-155 lay out the distribution of legislative powers between the federal and provincial governments. This includes the Federal Legislative List, which details the subjects on which the federal government can legislate, and the Concurrent Legislative List, which outlines the subjects on which both the federation and provinces can legislate.

These articles also deal with the resolution of any conflicts that might arise between federal and provincial laws.

Administrative Relations between the Federation and Provinces: Articles 156-159

Articles 156-159 focus on administrative relations, including the establishment of the Council of Common Interests (CCI) to resolve disputes and formulate policies in areas of common interest between the federation and the provinces.

The National Economic Council, provided for in these articles, is designed to ensure balanced growth and equitable economic development across all parts of the country.

Financial Distribution and National Finance Commission: Articles 160-165

These articles deal with the financial relationship between the federation and the provinces, including the distribution of revenues and the role of the National Finance Commission. They ensure that resources are allocated in a manner that reflects the needs and contributions of each province.

Implications for Federalism

Part V is instrumental in maintaining a delicate balance between national unity and provincial autonomy. It ensures that both levels of government can operate effectively within their domains and collaborate on matters of national importance.

The constitutional provisions for administrative and financial cooperation help in fostering a spirit of cooperation and mutual respect between the federation and the provinces, which is essential for the stability and prosperity of the country.

Part VI: Finance, Property, Contracts, and Suits

Part VI of the Constitution of Pakistan, encompassing Articles 160 to 174, deals with the financial management of the state, covering aspects of finance, property, contracts, and legal suits. This part is crucial in understanding the economic framework and fiscal responsibilities within the federal structure.

Distribution of Financial Resources: Articles 160-165

Articles 160-165 focus on the distribution of financial resources between the federation and provinces. This includes the constitution and functions of the National Finance Commission, which plays a key role in revenue allocation and financial planning.

The principles of distribution of revenues generated from taxes and duties, and grants-in-aid are outlined, ensuring equitable financial management and resource allocation.

Federal and Provincial Borrowing: Articles 166-167

These articles regulate the borrowing powers of both the federal and provincial governments. They set guidelines for internal and external borrowings, ensuring fiscal discipline and accountability.

Audit and Accounts: Articles 168-171

Articles 168-171 establish the office of the Auditor General of Pakistan, detailing its role in the audit and accounting of the federal and provincial governments. This ensures transparency and accountability in financial matters.

Property, Contracts, and Suits: Articles 172-174

Articles 172-174 deal with issues related to property, contracts, and legal suits. This includes the division of property between the federation and provinces and the legal framework governing contracts and suits involving the government.

Implications for Fiscal Governance

Part VI is essential for maintaining fiscal stability and efficient financial management in Pakistan. It lays down a clear framework for revenue generation, distribution, and expenditure, ensuring that financial resources are utilized effectively and responsibly.

The constitutional safeguards for audit and transparency are vital for building public trust in the government’s financial management and for promoting economic development.

Part VII: The Judicature

Part VII is essential in establishing a robust, independent, and efficient judicial system in Pakistan. It ensures the provision of justice, the safeguarding of constitutional rights, and the maintenance of law and order. The independence of the judiciary is a cornerstone of Pakistan’s democratic structure, ensuring that the legal system operates free from external pressures and influences.

The Structure and Role of the Judiciary

Part VII of the Constitution of Pakistan, consisting of Articles 175 to 212, delineates the structure, function, and authority of the judiciary. This part is pivotal for understanding the judicial system and its role in upholding the Constitution and the rule of law.

Independence of Judiciary: Article 175

Article 175 establishes the judiciary as a separate and independent authority. It mandates that the judiciary shall not be subject to any external influences and shall act impartially and independently.

The Supreme Court of Pakistan: Articles 176-191

These articles detail the composition, powers, and functions of the Supreme Court, the highest court of the land. It includes provisions for the appointment of judges, their qualifications, and the jurisdiction of the Supreme Court.

The Supreme Court has the authority to interpret the Constitution, adjudicate on disputes between provinces or between provinces and the federal government, and hear appeals from lower courts.

High Courts for Provinces: Articles 192-203

Articles 192-203 cover the High Courts, one for each province. These articles define the composition, powers, and jurisdiction of the High Courts. They also detail the appointment process of judges and the administrative control of the High Courts over subordinate courts.

The High Courts have the power to hear appeals from lower courts and have jurisdiction over constitutional matters within their respective provinces.

Federal Shariat Court: Articles 203A-203J

The Federal Shariat Court, established under these articles, examines and decides whether certain laws are consistent with the teachings of Islam, i.e. comparing it to Muhammadan Law. It has the authority to review both civil and criminal laws and can strike down laws it finds to be inconsistent with Islamic principles.

Subordinate Courts: Articles 204-212

These articles discuss the establishment, jurisdiction, and functioning of various subordinate courts, including District Courts and Sessions Courts. They play a crucial role in the administration of justice at the grassroots level.

Part VIII: Elections

Part VIII of the Constitution of Pakistan, comprising Articles 213 to 226, focuses on the electoral process. This part is vital for understanding how representatives are elected in Pakistan and the mechanisms that ensure free, fair, and transparent elections.

Ensuring Democratic Representation

Part VIII plays a crucial role in upholding the democratic ethos of Pakistan by ensuring a fair and transparent electoral process. The independence of the Election Commission is fundamental to maintaining the integrity of elections and, by extension, the legitimacy of the democratic process.

The constitutional provisions regarding elections reflect Pakistan’s commitment to democratic principles, ensuring that the voice of the people is heard and represented accurately in the legislative bodies.

The Election Commission: Articles 213-221

Articles 213-221 establish the Election Commission of Pakistan, detailing its composition, powers, and functions. The Commission is responsible for organizing and conducting elections to the Parliament and Provincial Assemblies, and for ensuring that elections are conducted impartially, justly, and honestly.

The process for the appointment of the Chief Election Commissioner and members of the Election Commission is outlined, emphasizing their independence and neutrality.

Electoral Laws and Voters’ Lists: Articles 222-224

These articles govern the formulation of electoral laws by the Parliament. The laws specify the qualifications and disqualifications for members of Parliament, the delimitation of constituencies, and the preparation of electoral rolls.

The articles ensure that every citizen who is eligible to vote has the right to be included in the electoral rolls.

Conduct of Elections: Articles 225-226

Article 225 provides for the resolution of election disputes through election tribunals, ensuring a mechanism for addressing grievances related to the electoral process.

Article 226 mandates that all elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.

Part IX: Islamic Provisions

 

Part IX of the Constitution of Pakistan, encompassing Articles 227 to 231, is dedicated to the integration of Islamic principles into national legislation. This part underscores the importance of Islam in the legal and cultural fabric of Pakistan.

Influence on the Legal System and Society of Pakistan

Part IX has profound implications for Pakistan’s legal system and society. It reflects the country’s commitment to its Islamic identity and heritage, ensuring that legislation is in harmony with religious tenets.

The role of the Islamic Ideological Council is crucial in maintaining this balance, providing a bridge between religious principles and modern legislative needs.

Islamic Laws and Legislation: Article 227

Article 227 is a pivotal clause stating that all laws shall be brought in conformity with the Quran and Sunnah, the holy scripture, and traditions of Islam, respectively. This article sets the benchmark for legislative processes, ensuring that all laws adhere to Islamic teachings.

The Islamic Ideological Council: Articles 228-231

These articles establish the Islamic Ideological Council, defining its composition, functions, and responsibilities. The Council is tasked with making recommendations to the Parliament and Provincial Assemblies about ways to bring existing laws into conformity with Islamic principles.

The Council also advises on proposed laws to ensure they do not conflict with Islam and reviews laws referred to it by the Parliament or Provincial Assemblies.

Part X: Emergency Provisions

The emergency provisions in the Constitution strike a balance between ensuring state security and upholding the constitutional order. They provide the state with the necessary powers to manage extreme situations while placing safeguards to prevent abuse of these powers.

The role of Parliament in reviewing and approving emergency measures is crucial in maintaining democratic oversight and preventing the unchecked exercise of executive power.

Emergency Powers and Procedures of Pakistan

Part X of the Constitution of Pakistan, comprising Articles 232 to 237, outlines the procedures and powers relating to the proclamation of emergencies. This part is critical for understanding the state’s response mechanisms during times of crisis.

Proclamation of Emergency: Article 232

Article 232 empowers the President of Pakistan to declare a state of emergency in case of war, external aggression, or internal disturbance, subject to Parliamentary approval. This declaration allows for the temporary suspension of certain constitutional rights and the centralization of powers to effectively manage the crisis.

Governor’s Rule in Provinces: Article 233

Article 233 provides for the imposition of Governor’s Rule in a province in case of internal disturbance that threatens the constitutional order. This ensures the stability and continuity of governance at the provincial level.

Suspension of Fundamental Rights: Article 234

Article 234 allows for the suspension of certain fundamental rights during a period of emergency, although rights such as the right to life and personal liberty cannot be suspended.

Parliamentary Oversight: Articles 235-237

These articles require that a Proclamation of Emergency and any laws made during this period be placed before both houses of Parliament for approval and review. This ensures that emergency powers are exercised under the oversight of the elected representatives of the people.

Part XI: Amendment of Constitution

Over the years, several important amendments have been made to the Constitution, reflecting political, social, and economic changes in the country. These include amendments to strengthen democracy, enhance provincial autonomy, and protect fundamental rights.

The Process of Constitutional Amendments

Part XI of the Constitution of Pakistan, consisting of Articles 238 and 239, outlines the procedures for amending the Constitution. This part is essential for understanding how the Constitution can evolve to meet the changing needs of the country.

The rigorous process for amending the Constitution ensures that changes are not made lightly or without broad consensus. This safeguards the Constitution’s core values and principles. The amendment process reflects the dynamic and adaptable nature of the Constitution, allowing it to evolve in response to new challenges and changing societal needs.

For certain amendments, particularly those affecting federal-provincial relations or the rights of provinces, the approval of the Provincial Assemblies is also required. Once the amendment bill is passed by the Parliament (and the Provincial Assemblies, if necessary), it is presented to the President for assent.

Amendment Procedure: Article 238

Article 238 stipulates that the Parliament has the power to amend the Constitution. However, this power is not absolute and is subject to certain conditions and limitations.

Approval and Ratification: Article 239

Article 239 details the process for a constitutional amendment. It requires that any amendment bill be passed by a two-thirds majority in both houses of the Parliament. If one house passes the amendment and the other rejects or amends it, the bill must be reconsidered and again passed by a two-thirds majority in both houses.

Part XII: Miscellaneous

Part XII, with its diverse range of articles, acts as a collective ensemble of tools and provisions necessary for the smooth functioning of the state machinery. It covers areas that are essential for the administration and governance of various facets of the state.

These miscellaneous provisions, though varied, are integral to the Constitution, providing the legal framework for a wide array of governance and administrative processes.

Diverse Provisions for Comprehensive Governance

Part XII of the Constitution of Pakistan, comprising Articles 240 to 280, encompasses a range of miscellaneous but crucial provisions. This part addresses various aspects necessary for the comprehensive governance and administration of the country.

Appointment to Services: Articles 240-242

Articles 240-242 lay down the framework for appointments to service of Pakistan and conditions of service. They established the Public Service Commission, ensuring merit and fairness in recruitment for government positions.

Special Provisions: Articles 243-259

These articles cover special provisions ranging from the command of armed forces (Article 243) to the national language (Article 251) and emergency provisions (Articles 256-259). They address key governance aspects, ensuring that necessary legal frameworks are in place for specialized areas of national importance.

Tribal Areas and Special Regions: Articles 260-272

Articles 260-272 deal with the status and administration of Tribal Areas and other special regions. This includes provisions for their governance and integration into the national framework.

Financial Emergency and Other Provisions: Articles 273-280

The final articles of the Constitution, 273-280, deal with financial emergency provisions, the remuneration of various officeholders, and other residual matters. These articles ensure that there are clear guidelines for extraordinary circumstances and other aspects not specifically covered in earlier parts.

Reflecting on the Constitution of Pakistan

The Constitution of Pakistan, with its diverse and comprehensive provisions, serves as the bedrock of the nation’s legal and political system. It embodies the aspirations, values, and commitments of the Pakistani people towards democracy, justice, and equality. From nikah and family laws to the intricate balance of powers between various branches of government, the Constitution lays down the framework for a progressive and dynamic nation.

The Constitution is not just a static document but a living entity that evolves with the changing needs of the country. It has been amended multiple times to address new challenges and to strengthen the democratic fabric of the nation. Each amendment is a step towards refining the governance structure and ensuring that the Constitution remains relevant and effective in serving the needs of the people.

The Importance of Understanding the Constitution of Pakistan

An informed understanding of the Constitution is crucial for every citizen. It empowers individuals with the knowledge of their rights and responsibilities and fosters a sense of ownership and participation in the democratic process. The Constitution, in its spirit and letter, is a guide for both the governed and the governors, ensuring that Pakistan continues to thrive as a democratic, just, and equitable society.

This guide is just the beginning of a deeper exploration into the Constitution of Pakistan. We encourage you to delve further into each part and article, to understand the nuances and implications of this foundational document. For more detailed information, personalized assistance, or if you have specific legal inquiries, please do not hesitate to contact us. Our team of legal experts is dedicated to providing you with comprehensive guidance and support in navigating the complexities of Pakistani law.

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