1973 Constitution of Pakistan: Features
Introduction
Constitution-making in Pakistan has unfortunately a chequered history. After gaining independence in 1947, Pakistan adopted the 1935 Indian Constitution with slight modifications as an interim constitution and started earnestly to frame a consensus document to serve as its permanent constitution. However, due to peculiar circumstances, the complexity of issues involved, and the incompetency of the political elite, it took them more than seven years to accomplish the task in the form of the 1956 Constitution
The 1956 Constitution was never practically implemented; before the country’s first parliamentary elections were to be held, President Iskandar Mirza abrogated the constitution and declared Martial Law on October 7, 1058. He appointed army chief Ayyub Khan, who had been appointed as the defence minister, as the martial law administrator. On October 27, 1958, General Ayyub removed Iskandar Mirza and became the head of the state.
After consolidating his power, General Ayyub appointed a commission for the preparation of a new Constitution. Based on its report, the Cabinet finally approved the text of the new constitution, which was promulgated by President Ayyub on March 1, 1962, and finally came into effect on June 8, 1962.
Although there were multiple historical and structural, of the breakup of Pakistan in 1971, in hindsight, we can say that the promulgation of the 1962 Constitution was the beginning of the last stage of a united country. The 1956 Constitution, however flawed it might be, was a written agreement endorsed by the majority of the elected representatives who had taken part in the freedom struggle of the country, for their resolve to live together. Its abrogation nullified all the efforts made by the political elite of both wings to do so, cutting the very roots of the country as a united nation-state.
After the separation of East Pakistan in 1971, Zulfiqar Ali Bhutto took over the reins of the remaining country as its President and governed the new country under the Interim Constitution of 1972. Soon afterwards, a Constitutional Commission was set up to draft a permanent constitution for the country following the changed circumstances. It presented its draft Constitution in early 1973, which was later unanimously approved by the National Assembly on August 14 of the same year
Keeping in view the peculiar conditions of a country that had recently been divided into two and was facing an existential threat, internally and externally, the Constitution reflected a heavy but the best compromise possible over several issues. Passed unanimously by the parliament and all the parties represented in the parliament, it tried to maintain a delicate balance of power among the country’s institutions on the one hand and between the centre and the provinces on the other by introducing a robust mechanism of check and balances and separation of powers.
Salient Features of the Constitution of 1973:
The salient features of the Constitution of 1973 are as follows:
1. Written Constitution:
Like the Constitution of the United States of America, but unlike the Constitution of the United Kingdom, the Constitution of 1973 is a written document. There are 280 articles and seven schedules to the Constitution. Urdu and English are the official languages, while provinces are free to opt for their respective provincial languages as well.
2. Federal Form of State
The Constitution of 1973 envisaged Pakistan as a federation consisting of a central government and the governments of the federating units, namely, the provinces of Punjab, Sindh, Khyber Pakhtunkhwa, and Baluchistan.
3. Parliamentary form of Government:
Like the Constitution of 1956, but unlike the Constitution of 1962, the Constitution of 1973 provides Pakistan with a parliamentary form of government whereby maximum powers are vested in the elected parliament and the Prime Minister, as head of government, has many more powers than the head of state (President).
4. Bicameral Legislature
The Constitution of 1973 provides for the establishment of a bicameral legislature that consists of two houses, namely, the National Assembly, the lower house, and the Senate, the upper house. All public representatives of the national assembly and the provincial assemblies are elected through the direct votes of adults.
5. Balance between rigidity and flexibility
The Constitution of 1973 strikes a fairly good balance between rigidity and flexibility. As per universal practice, it does allow constitutional amendments but requires a two-thirds majority of the parliament (National Assembly and Senate) to approve them.
6. Fundamental Rights
To emphasize its democratic credentials, the 1973 Constitution guarantees fundamental rights to the citizens of Pakistan. These include equality of all citizens before the law, security of person, safeguards as to arrest and detention, prohibition of slavery and forced labour, freedom of speech, freedom to profess religion, safeguards for religious institutions, non-discrimination in respect of access to public places and services, and preservation of languages, script, and culture.
7. Principles of Policy
Keeping in view the ideology of Pakistan as a modern welfare state based on Islamic foundations, the 1973 Constitution listed the Principles of Policy as the guidelines for statecraft, namely the introduction of the Islamic way of life, promotion of local government, full participation of women in national life, protection of minorities, promotion of the social and economic wellbeing of the people, strengthening the bonds with the Muslim world, and working for international peace.
8. Islamic Provisions of the Constitution of 1973
To appease the vocal religious lobby, it not only retained the name of the country, like the Islamic Republic of Pakistan, but also maintained the articles relating to Islam originally introduced in the 1956 Constitution. The Constitution put a stipulation on the eligibility for becoming President and Prime Minister that only “Muslims” are not less than forty-five years of age and are qualified for becoming Prime Minister. No law repugnant to Islam shall be enacted, and the present laws shall also be Islamized.
The Constitution also listed the Principles of Policy as the guidelines for statecraft, namely the introduction of the Islamic way of life and strengthening the bonds with the Muslim world. Many key ideas regarding the role of Islam in the State that were mentioned in the 1956 Articles were made part of the Constitution:
The official name “Islamic Republic of Pakistan” was selected for the state of Pakistan.
Islam has been declared the state religion of Pakistan.
Enabling the living life, culture, and customs of Muslims, individually or collectively, under the fundamental principles and basic concepts of Islam
Teachings on Arabic, Qur’an, and Islamiyat to be compulsory in the country’s institutions and to secure correct and exact printing and publishing of the Qur’an.
Proper organization of Zakat, Waqf, and mosques is ensured.
Prevent prostitution, gambling, consumption of alcohol, printing, publication, circulation, pornography, and display of obscene literature and advertisements.
It is required to be a Muslim to run for president (male or female) and/or Prime Minister (male or female). There is no restriction as to religion or gender on any other post, up to and including provincial governor and Chief Minister.
All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Qur’an and Sunnah and no law shall be enacted that is repugnant to such injunctions.[38]
A Council of Islamic Ideology shall be constituted and referred to as the Islamic Advisory Council.
The Constitution of Pakistan defines a Muslim as a person who believes in the unity and oneness of Allah, in the absolute and unqualified finality of the Prophethood of the Islamic prophet, Muhammad, and does not believe in, or recognise as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad.
In keeping with this definition, the Second Amendment to the Constitution (1974) declared for the first time the Ahmadiyya Community and/or the Lahori Group as non-Muslims, since their leader, Mirza Ghulam Ahmad, claimed to be the prophet of God.
However, the Fourth Amendment (1975) set aside six seats in the National Assembly for non-Muslim representatives to protect minority rights.
The state shall endeavour to strengthen the bonds of unity among Muslim countries.
9. Provincial Autonomy
To satisfy the demands of the provinces for more provincial autonomy, the Constitution defined Pakistan as a Federation of Four Provinces, provided the federal system with a “Bicameral Parliament” as a legislative authority at the centre and unicameral legislatures in the respective provinces, and introduced comprehensive lists of federal, provincial, and concurrent subjects. The Parliament consists of the Senate as the Upper House (providing equal provincial representation), and the National Assembly as the Lower House (providing the will and representation of the people).
The Constitution also introduced a new institution known as the “Council of Common Interests,” consisting of the Chief Minister of each of the four provinces and an equal number of Cabinet ministers of the Government nominated by the Prime Minister.[35] The Council could formulate and regulate the policy in Part II of the Legislative List. In case of a complaint of interference in water supply by any province, the Council would consider the complaint.
Another major innovative introduction in the Constitution is the establishment of the National Finance Commission (NFC), consisting of the Provincial and Finance Ministers and other members, to advise on the distribution of revenues between the federation and the provinces.
10. Separation of Powers
The 1973 Constitution of Pakistan, containing more than 250 articles and several important amendments, establishes a federal state with a bicameral legislature and parliamentary form of government at the centre and four federating units. The national power is divided between the three branches, namely the Executive, Legislature, and Judiciary. In addition to these three branches, the Constitution also provides for an Ombudsman or Mohtasib. The holder of this office is tasked with enforcing administrative accountability and investigating wrongs committed against citizens by members of the government. However, the Mohtasib does not have jurisdiction over any cases involving personal grievances of government officials, foreign affairs, national defence, or the armed services.
Assessment
Keeping in view the peculiar conditions of a country that had recently been divided into two and was facing an existential threat, internally and externally, the 1973 Constitution was the best compromise possible over several issues. Passed unanimously by the parliament and all the parties represented in the parliament, it tried to maintain a delicate balance of power among the country’s institutions on the one hand and between the centre and the provinces on the other.
Besides introducing a robust mechanism of checks and balances and separation of powers, the Constitution of 1973 also strikes a fairly good balance between rigidity and flexibility. As per universal practice, it does allow constitutional amendments but requires a two-thirds majority of the parliament (National Assembly and Senate) to approve them.
Because of the above-mentioned inherent strengths of the 1973 Constitution of Pakistan, it is an excellent social contract and does not need to be replaced by any new social contract, as advocated by a tiny minority in Pakistan. It has stood the test of time; that’s why the two dictators amended it drastically to suit their respective personal interests but did not dare to abrogate it.
As the abrogation of the 1956 Constitution was one of the main reasons for the bifurcation of Pakistan in 1971, the abrogation of 1973 would lead to the balkanization of present-day Pakistan
