Chapter 3

Introduction to the Constitution of Pakistan

Definition and Importance of a Constitution

The term "constitution" is derived from the Latin wo constitution, meaning

"to set up" or "establish." A constitution is a formal legal document that
embodies the values and principles upon which a state is built.

Elements of Constitution

1. Preamble: A statement of intent or purpose, of reflecting the aspirations

and guiding philosophy of nation.

2. Basic Rights and Freedoms: Provisions guaranteeing the rights of

individuals, such as freedom of speech, religion and equality before the law.

3. Government Structure: The distribution of powers is different branches

of government, typically the executive legislative, and judiciary.

4. Processes and Procedures: Rules for lawmaking, administration of

justice, and constitutional amendment

5. Federal or Unitary Framework: Provisions defining the relationship

between central and local governments, in the case of federal states

Importance of a Constitution

1. Foundation of Governance

A constitution serves as the supreme law of the land, establishing the

legitimacy and authority of government institutions. It defines their powers,
responsibilities, and limitations, ensuring that governance operates within a
structured and predictable framework.

2. Protection of Rights and Liberties

By codifying fundamental rights, the constitution safeguards individuals from

abuse of power by the state or other entities. It guarantees freedoms such as
speech, religion, assembly, and equal protection under the law, promoting
justice and equality in society.
3. Rule of Law

The constitution upholds the principle of the rule of law, ensuring that
everyone, regardless of status or authority, is subject to the law. This
principle prevents arbitrary governance and provides a system of checks and
balances.

4. Democratic Principles

Constitutions often enshrine democratic values, such as free and fair

elections, majority rule, and minority rights. By outlining electoral processes
and establishing representative institutions, they facilitate citizens'
participation in governance.

5. Conflict Resolution

A constitution provides mechanisms for resolving disputes within the

government and among citizens. It outlines the procedures for addressing
grievances and ensures that conflicts are settled through lawful and peaceful
means.

6. Continuity and Stability

A well-crafted constitution ensures continuity of governance even during

times of crisis. It provides guidelines for dealing with emergencies,
transitions of power, and unforeseen circumstances, maintaining national
stability.

7. National Identity and Unity

The preamble and provisions of a constitution often reflect the shared values
and aspirations of a nation, fostering a sense of unity and identity. It serves
as a unifying document that brings diverse groups together under a common
legal framework.

8. Framework for Economic and Social Development

By promoting good governance, accountability, and justice, a constitution

creates an environment conducive to economic growth and social progress. It
protects property rights, ensures fair economic policies, and promotes the
welfare of all citizens.
Ideological Factors That Shaped the Constitution(s) of Pakistan
(Objectives Resolution 1949)

The Objectives Resolution of 1949 is a cornerstone of Pakistan's

constitutional history and represents the ideological foundation upon which
the country's constitutional framework was built. It laid out principles to
guide the governance and future constitutional development of Pakistan.

The Objectives Resolution, passed by the Constituent Assembly of Pakistan

on March 12, 1949, was the first significant step in defining the ideological
identity of the newly independent state. It sought to integrate Islamic
principles into the fabric of governance while addressing the diverse
aspirations of its people. The resolution became a preamble to Pakistan's
successive constitutions (1956, 1962, and 1973) and reflects a synthesis of
Islamic ideology and democratic governance.

1. Ideological Factors Shaping the Objectives Resolution

(a) Islamic Ideology

The creation of Pakistan was fundamentally rooted in the demand for a

separate homeland for Muslims of the Indian subcontinent, where they could
live according to Islamic principles. This ideological foundation played a
pivotal role in shaping the Objectives Resolution. Key elements include
Sovereignty of Allah, Integration of Shariah, Protection of Islamic Culture.

(b) Vision of Quaid-e-Azam Muhammad Ali Jinnah

Jinnah's vision for Pakistan influenced the resolution, although there were
debates about his exact stance on the role of religion in governance. His
speeches often highlighted Religious Freedom and Islamic Democracy.

(c) Two-Nation Theory

The Two-Nation Theory, which argued that Hindus and Muslims were distinct
nations with their own social, cultural, and religious identities, justified the
creation of Pakistan. The Objectives Resolution sought to institutionalize this
theory by ensuring that Pakistan would serve as a homeland for Muslims to
practice their faith freely.

(d) Religious Pluralism

Although rooted in Islamic ideology, the Objectives Resolution also
emphasized the protection of minorities. It stated that non-Muslims would be
free to profess and practice their religions. their cultural, educational, and
religious rights would be safeguarded, reflecting the inclusive ideals
envisioned for Pakistan.

(e) Global Influence of Islamic Revivalism

The mid-20th century witnessed a resurgence of Islamic political thought,

with many Muslim leaders advocating for the integration of Islam into
governance. This global movement influenced Pakistan's leadership to
emphasize the Islamic character of the state while balancing modernity.

(f) Post-Colonial Context

As a newly independent state emerging from British colonial rule, Pakistan's

leaders were eager to define a distinct national identity. The Objectives
Resolution aimed to reject colonial models of governance and establish a
system rooted in indigenous (Islamic) values rather than Western secularism.

Overview of Constitutional Developments in Pakistan

Pakistan's constitutional development has been marked by a turbulent

history, shaped by political upheavals, military interventions, and social
dynamics. Since its independence in 1947, the country has struggled to
establish a stable constitutional framework, balancing the needs of
democracy. Islamic ideology, and federalism.

1. 1947-1956: The Quest for the First Constitution

After gaining independence, Pakistan inherited the Government of India Act,

1935, as its interim constitution. The transition to a permanent constitutional
framework, however, faced significant hurdles due to political instability, the
linguistic divide, and disputes between East and West Pakistan.

(a) The Objectives Resolution (1949)

A landmark in constitutional history, the Objectives Resolution laid the

foundation of Pakistan's ideological framework, emphasizing sovereignty
belonging to Allah, the Islamic way of life, and the protection of minority
rights. It became a preamble to future constitutions.
(b) Challenges in Constitution-Making

The primary challenge was reconciling the demands of East Pakistan, which
sought greater autonomy, and West Pakistan, which dominated the federal
structure. These tensions delayed the drafting of a consensus-based
constitution.

(c) The 1956 Constitution

After years of deliberation, Pakistan adopted its first constitution in 1956,

establishing a parliamentary system with a unicameral legislature. It
declared Pakistan an Islamic Republic and introduced provisions to ensure
the Islamic character of laws.

2. 1958-1971: Constitutional Breakdown and Military Rule

The political instability and inefficiency of the 1956 Constitution led to its
abrupt suspension in 1958, marking the beginning of military dominance in
Pakistan's governance.

(a) Martial Law and the 1962 Constitution

General Ayub Khan seized power in 1958 and introduced the 1962
Constitution. This document shifted Pakistan to a presidential system,
concentrating power in the executive. It also introduced "Basic
Democracies," a system of indirect elections.

(b) East-West Pakistan Tensions

The centralization of power under the 1962 Constitution exacerbated

tensions between East and West Pakistan, as East Pakistan felt marginalized
in terms of political representation and economic development.

(c) The Fall of East Pakistan (1971)

The lack of constitutional safeguards for provincial autonomy and the failure
to address East Pakistan's grievances culminated in the secession of East
Pakistan and the creation of Bangladesh.

3. 1973 Constitution A Democratic Milestone

In the aftermath of the 1971 crisis, Pakistan sought to rebuild itself under
civilian leadership. The 1973 Constitution, drafted under the leadership of
Prime Minister Zulfikar Ali Bhutto, remains the cornerstone of Pakistan's legal
framework.

a) Federal Parliamentary System

Power was distributed between the federal and provincial governments, with
a bicameral legislature (Senate and National Assembly).

b) Islamic Provisions

The Constitution declared Islam the state religion and established institutions
to Islamize laws and practices.

c) Fundamental Rights

Guaranteed fundamental rights, including equality before the law, freedom of

speech, and religion.

d) Challenges

Despite its progressive framework, political instability and growing

sectarianism undermined the effectiveness of the 1973 Constitution.

4. 1977-1988: Zia-ul-Haq's Islamization

General Zia-ul-Haq's military regime (1977-1988) marked a significant shift

toward the Islamization of Pakistan's legal and constitutional framework.

a) Amendments to the Constitution

The 8th Amendment introduced extensive powers for the president, including
the authority to dissolve the National Assembly, Establishment of Shariat
Courts and Hudood Ordinances, which implemented Islamic laws.

b) Impact

Zia's Islamization policies deeply influenced Pakistan's socio-political fabric,

embedding religious principles more firmly into governance.
5. 1988-1999: Civilian Governments and Constitutional Challenges

The return to civilian rule under Benazir Bhutto and Nawaz Sharif witnessed
repeated political instability, often exacerbated by the discretionary powers
granted to the 75 presidents under the 8th Amendment.

(a) Judicial Activism and Constitutional Developments

The judiciary emerged as a significant player during this period, interpreting

constitutional provisions in the context of political crises.

(b) Erosion of Democratic Norms

Frequent dismissals of elected governments, corruption, and weak

institutional frameworks undermined the democratic process.

6. 1999-2008: Musharraf Era and the 17th Amendment

General Pervez Musharraf's military coup in 1999 ushered in another phase

of constitutional upheaval.

a) Legal Framework Order (LFO)

The LFO of 2002 introduced significant amendments to the 1973

Constitution, including the restoration of presidential powers.

b) 17th Amendment

Consolidated many changes introduced by Musharraf, maintaining a hybrid

system of governance with a powerful presidency.

c) Judicial Crisis

Musharraf's dismissal of Chief Justice Iftikhar Chaudhry in 2007 sparked a

nationwide movement, highlighting the judiciary's role in defending
constitutionalism.

7. 2008-2018: Democratic Transition and the 18th Amendment

The period after Musharraf's resignation marked a return to democratic

governance and significant constitutional reforms.

a) 18th Amendment (2010)

Repealed the 17th Amendment, restoring the parliamentary system and
reducing presidential powers. Enhanced provincial autonomy, addressing
long-standing grievances of smaller provinces.

b) Judicial and Electoral Reforms

Strengthening the judiciary and establishing independent electoral bodies to

ensure free and fair elections.

8. 2018-Present: Contemporary Challenges

Recently, have seen debates over the role of institutions, including the
judiciary, military, and political parties, in upholding the constitutional
framework.

a) Judicial Activism

The judiciary has played an increasingly prominent role in interpreting

constitutional provisions, sometimes blurring the lines between judicial and
executive authority.

(b) Political Polarization

Political instability, coupled with challenges like economic crises and

governance issues, continues to test the resilience of the 1973 Constitution.

Conclusion

Pakistan's constitutional journey reflects its struggle to balance democracy,

federalism, and Islamic ideology. While the 1973 Constitution remains a
beacon of stability, its success depends on the collective will of political
leaders, institutions, and citizens to uphold its principles. Achieving lasting
constitutional stability requires addressing the root causes of political and
institutional crises while fostering an inclusive and participatory democratic
culture.