Contitutional Amendments

8/19/2019 Contitutional Amendments

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Constitutional History of

Pakistan


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What is a Constitution?

• A constitution is a set of rules for government—often codified as a written document—that enumeratesthe powers and functions of a political entity. n the caseof countries! this term refers specifically to a national

constitution defining the fundamental political principles!and esta"lishing the structure!procedures! powers and duties! of a government. #ylimiting the government$s own reach! most constitutionsguarantee certain rights to the people. %he

term constitution can "e applied to any overall law thatdefines the functioning of a government! includingseveral historical constitutions that e&isted "efore thedevelopment of modern national constitutions.


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mportance of a Constitution

• t lays down the "asic structure of the government underwhich its people are to "e governed. t esta"lishes themain organs of the government ' the e&ecutive!the legislature and the (udiciary.

• %he Constitution not only defines the powers of eachorgan! it demarcates the responsi"ilities of each. tregulates the relationship "etween the different organsand "etween the government and the people.

• A Constitution is superior to all the laws of the country.)very law enacted "y the government has to "e inconformity with the Constitution.

• t spells out the rights of the citi*en


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• %he constitution puts limits on government. t is like a contract"etween the government and the people. %he people who $serve$ inthe government take an oath that they will support and defend theconstitution.

Hopefully that means that they will o"ey the constitution and thespirit and intent of the constitution and will not do anything to aperson that is prohi"ited "y the constitution.

%he supreme court rules on laws and "ehavior of office holders anddetermines if their actions are constitutional or not.

%hat is the importance of it. t is supposed to limit the "ehavior ofthose in office to do harm to the citi*ens! using the power of theiroffice! while they serve in office. And if it works and if those in officeare honest! then the importance to each individual is a high level ofpersonal freedom.


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• +ughal ,a(

• #ritish )ast ndia Company and trade

• -ahangir! Aurang*e"! ir(auddaulah

• ir %homas ,oe• ,o"ert Clive

• Warren Hastings

• ir Charles Canning


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Pre/Partition Constitutional

0evelopment


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1ovt. of ndia Act 2343

• 5irst constitutional document for colonial

ndia

•5ormation of Councils• Powers of ecretary of tate

• Amendment in 2346 and 1overnor

1eneral• ndian Councils Act! 2372 and 2368


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+into/+orely ,eforms 2696/2626

• imla 0eputation and Political Awakening

in ndia

•:ord +orely o and :orn +into ;cryndian Councils Act! 2696

• +ain factors

• ,eaction "y ndians


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+ontague/Chelmsford ,eforms 2626

• %owards ,esponsi"le 1overnment and its causes.• ecretary of tate was head and 1overnor

1eneral under his ccontrol.

• #icameral :egislature• 0irect )lectons

• 0uration of Councils

• Power of Councils and 1overnor 1eneral

• #udget

• 0iarchy


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• imon Comission

• ,ound %a"le Conferences

• ehru ,eport• 2@ points of -innah


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1ovt of ndia Act! 264

• +ain 5eatures

• 5ederal )&ecutive

• 5ederal :egislature• 5ederal Court

• Provincial 1overnments

• Provincial :egislatures• 5ormation of +inistries under this Act


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PA% PAP),


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PA% PAP),


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PA% PAP),


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nterim Constitution

• ndian ndependence Act 26@F

' 1overnment of ndia Act! 264 was the working

constitution of Pakistan

' 5ederal :egislative Assem"ly and Constituent Assem"ly

• Pakistan =Provisional Constitutional>


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INITIAL CONSTITUTIONAL

PROBLEMS• tate and ,eligion

• :anguage

• 0istri"ution of eats "etween Provinces

• 5ederal or Bnitary

• Parliamentary or Presidential

• #icameral or Bnicameral• 5ederation


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C

• ,elations with eigh"ors and the World

• tatus of tates


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%he


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• Wherein the +uslims shall "e ena"led to order their lives in theindividual and collective spheres in accordance with the teachings andreEuirements of slam as set out in the Holy Muran and unnahK

• Wherein adeEuate provision shall "e made for the minorities freely toprofess and practise their religions and develop their culturesK

• Wherein the territories now included in or in accession with Pakistanand such other territories as may hereafter "e included in or accede toPakistan shall form a 5ederation wherein the units will "e autonomouswith such "oundaries and limitations on their powers and authority asmay "e prescri"edK

• %herein shall "e guaranteed fundamental rights! including eEuality of

status! of opportunity and "efore law! social! economic and political (ustice! and freedom of thought! e&pression! "elief! faith! worship andassociation! su"(ect to law and pu"lic moralityK

• Wherein adeEuate provision shall "e made to safeguard the legitimateinterests of minorities and "ackward and depressed classesK

• Wherein the independence of the (udiciary shall "e fully securedK

• Wherein the integrity of the territories of the 5ederation! itsindependence and all its rights! including its sovereign rights on land!sea and air! shall "e safeguardedK

• o that the people of Pakistan may prosper and attain their rightful andhonoured place amongst the nations of the World and make their fullcontri"ution towards international peace and progress and happiness of

humanity L


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• ow! therefore! we! the people of Pakistan!Cognisant of our responsi"ility "efore Almighty Allah and menK

Cognisant of the sacrifices made "y the people in the cause ofPakistanK

5aithful to the declaration made "y the 5ounder of Pakistan! Muaid/i/A*am +ohammad Ali -innahN! that Pakistan would "e ademocratic tate "ased on slamic principles of social (usticeK

0edicated to the preservation of democracy achieved "y the

unremitting struggle of the people against oppression andtyrannyK

nspired "y the resolve to protect our national and political unityand solidarity "y creating an egalitarian society through a neworderK

0o here"y! through our representatives in the ational Assem"ly!adopt! enact and give to ourselves! this Constitution.


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,eaction "y on +uslims

• Prem Hari #arma propsed that the +otion

"e circulated for eliciting pu"lic opinion

thereon

• ris Chandra Chattopadhyaya vehemently

supported it

• :iaEuat Ali Ihan opposed the motionwhich

was put to vote and defeated


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Proposed Amendments

• GWhereas sovereignty over the entireuniverse Jis a sacred trust to "e omitted

• Gtate of Pakistan through its peopleJ

people of Pakistan "e su"stituted• GWherein the national sovereignty "elongs

to the people of PakistanK Wherein the

principle of the state is government of thepeople! for the people! and "y the people


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#asic Principles and


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5urther Constitutional

0evelopments

• +uhammad Ali #ogra 5ormula

• Provincial Autonomy ;s trong Centre

• ssue of ational :anguage

• 0ismissal of 1overnments

• +olvi %amee*uddin Ihan Case

• Bsif Patel Case

• 1overnor 1eneralOs ,eference

• 0octrine of :aw of ecessity


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%he Constitution of 2647

• 8rd +arch 2647

• 8@ Articles! 2 Parts and 7 chedules

' slamic Principles

' 5ederal Constitution "ut comple&

' pecial Provisions for %ri"al Areas

' 5ederal Court

' )mergency Provisions

' #ill of ,ights and Principles of tate Policy


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5urther 0evelopments

• 5irst +artial :aw

• %he 0osso Case

• Action against 1overnment ervants• Action against Politicians

• :and ,eforms

• #asic 0emocracies


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W,% -B,0C%


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PLD 1955 Federal Court 240

FEDERATION OF PAI!TAN AND OT"ER!

#APPELLANT!$%ER!&!

'O&L%I TA'I(&DDIN "AN

#RE!PONDENT$


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!e)uence

• #rief ntroduction• 5acts of the Case

• Appeal in 5ederal Court

• u"missions


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Introduction

• 0issolution of Constituent Assem"ly "y

1overnor/1eneral through proclamation

on 8@


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Contd/

• +aulvi %ami*uddin Ihan invoked the writ

(urisdiction of the Chief Court of ind BD

88/A! 1overnment of ndia Act! 264.

• %he 1overnment$s reply among other

things was that the 0issolution was valid.

•%he Chief Court of indh issued the writsprayed for.


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De*initions

• Writ of mandamus

• Writ of qou warranto


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:aw Points

• Whether ection 88/A of the 1overnment

of ndia Act! 264 empowers the superior

courts to issue writs.

• Whether ection 7 => reEuires 1overnor/

1eneralOs assent for a "ill or act to

"ecome law.


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A++eal in Federal Court

• Arguments "y respondent

• %he proclamation of emergency and the

appointment of the reconstituted Council

of +inisters wereL

a> Bnconstitutional

"> llegal! c> noperative and

d> ;oid


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• %here is no e&press provision for the

dissolution of assem"ly

• Pakistan is Gndependent 0ominion hence

the Constituent Assem"ly is sovereign.

• %he :egislature of the new 0ominion have

full power to make laws for that 0ominion.

Contd/


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• 1overnor/1eneral is not part of :egislature.

• %he assent of the 1overnor/1eneral can only

"e reEuired through creation of the statute.

• u"/ection => of section 7 of the act of 264!

must "e read with section 4 which says thatthe governor/general represents the crownonly for the purposes of the 1overnment.

Contd/


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• ,ule 78 of the G,ules of Procedure of the

Constituent Assem"ly pu"lished in the


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Arguments Advanced "y the Appellants

• %he grounds mentioned in the proclamation

for the dissolution of assem"ly were true.

• ection 88/A! which empowered the HighCourts to issue writs had not received the

assent of the 1overnor/1eneral.

• t was not :aw! therefore the Courts had no

(urisdiction to issue writs.

• %he 1overnor/1eneral was competent to

dissolve the Constituent Assem"ly.


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Conclusions arri,ed at -. t/e

Court and t/e Reasons

• 1overnment is the responsi"ility of the

e&ecutive! if there ensues a conflict

"etween legislature and the e&ecutive! if

the assem"ly does not support the

e&ecutive! the 1overnment must take it

to mean that it had ceased to "e therepresentative of the House.


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• %he Crown is a constituent part of legislature.• 1overnor/1eneral represents the Crown hence

he is also a part of legislature

• %he 1overnor/1eneral have full power to assent

to a law BD 7=>.

• %he provisions relating to statutes do not create

a new right "ut confirm an e&isting right.

• t provides the manner in which that right is to "ee&ercised.

Contd/


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• %he administration of the constitutional

laws "eing part of 1overnment! hence it

can "e e&tended to the making of :aws.

• %he rule 78 of the G,ules of Procedure of

the Constituent Assem"ly can "ecome

law so long as it is not in direct conflict

with the constitutional provisions

Contd/


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• A mere ,ule can not amend the Constitutional

Act any more than a resolution.

• Gection 88/A of the 1overnment of ndia Act

264! under which Chief Court assumed

(urisdiction to issue the writs did not receive

such assent! it is not yet law! and therefore!that court had no (urisdiction to issue writs

Contd/


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O-ser,ations ade -. ustice

Cornelius

• %he Constituent Assem"ly was to "e placed

a"ove the 1overnor/1eneral for the

reasonsL

a> Constituent Assem"ly was a sovereign

"ody and

">%he statutes under which the 1overnor/

1eneral was reEuired to function! were

within the competence of the constituent

assem"ly to amend

C * t/


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Conse)uences o* t/e

decision

• @7 Acts on the statute "ook "ecame

invalid.

• %he country was faced with a legal

vacuum.


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B5 PA%): A0 %W<


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#ackground

• Appellants were proceeded against under

ind Control


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ContdL

• Appellants for their failure to give

security were directed to "e confined

to the prison

1 d f A l " f th Chi f


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1rounds of Appeal "efore the Chief

Court of indL

• %he appeal was made uDs @62of CPC! 2363

• %he appellants prayed that their detention

was wrongful and they "e set at li"erty.

• %his act was passed "y the 1overnor as

the 1overnor ' 1eneral empowered thegovernor to pass such an act. %his action of1overnor/1eneral was ultra/vires.


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0ecision of the Chief Court of indL

%he contentions of the appellant were

repelled "y the Chief court.

C t ti # f th 5 d l


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Contention #efore the 5ederal

Court

T/e ,alidit. o* section 92 A 3as

c/allened T/is 3as t/e natural corollar.

o* 'aul,i Tai6duddin /an7s Case


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ConclusionL

A legislature cannot validate an invalid law ifit does not possess the power to legislate onthe su"(ect to which the invalid law relates.

%he authority to legislate on constitutionalmatters is constituent assem"ly only.

As constitution is not a procedural lawtherefore no amendment can "e made to itwith retrospective effect.


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,eference #y %he1overnor 1eneral

P:0 2644 5C @4


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eEuence

• #ackground

• %he ,eference

•Muestions raised in the ,eference

•


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#ackground

• 'aul,i Taee6 ud

Din /an7s Case

Held

%he assent of

1overnor 1eneral was

necessary for all laws

passed "y theConstituent Assem"ly.


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#ackground

• Eerenc. Po3ers Ordinance 1955

ssued under ec. @8 of 1ovt. of ndia Act 264

"y the 1overnor 1eneral to ;alidate 4 laws "y

giving assent to them retrospectively

• &si* Patil Case

Held L/ Act given under schedule through

)mergency Powers


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ituation in Hand

• No co+etent leislature

•T/reat of Complete "reakdown ofconstitutional machinery

• 8o,ernor 8eneral7s Re*erence underec. 82 of the 1ovt. of ndia Act 264

1 1 lO


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1overnor 1eneralOs

,eference

Initial Re*erence '

whether there was any provision in the

Constitution or any rule of :aw applica"le to

the situation "y which the 1.1 could "y


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cope of ,eference enlarged

• %he court suggested that term of

,eference may "e enhanced to determine

whether the constituent assem"ly was

rightly dissolved?

• )nlarged ,eference

Muestions raised


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Muestions raised


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#asis of the 0ecision

Necessit. ;no3s no la3 =Chitty>

Necessit. a;es la3*ul 3/ic/ ot/er3ise is not

la3*ul =#racton>


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Gu"(ect to the condition of a"soluteness !

e&tremeness and imminence and act

which would otherwise "e illegal "ecomes

legal! if it is done "onafide under thestress of necessity.


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0issent "y Cornelius -.

• 1overnor 1eneral had prerogative power to

dissolve assem"ly

• %he prerogative is not (ustica"le matter so the

Euestion of its "eing rightly performed does notarise.

• %here is no +ro,ision in the constitution and no

rule of law -. 3/ic/ t/e 8o,ernor 8eneral

can.. n the light of Bsif Patel..,alidate t/e la3s whether temporarily or permanently.


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Criticism

• A so/called doctrine! rather than theconstitution! national or international law!"ecame the "asis for decision

• With one "low! Chief -ustice +unirdestroyed the foundations of constitutionalrule in Pakistan.

• n one move! he opened wide the doorfor the army to walk into government anytime it wanted.

, i d i i 0i t t


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,aised uspicions 0istrust

f what is clear and o"vious is sothrilling and full of intrigue! one can

only imagine what would have gone

on "ehind the scenes in this era of

intrigues and conspiracies to "ring all

of this a"out.

=%he Coup! %he Constitution! and the #ureaucratic +usical Chairs=2644/43>


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%he ,easoning

%he C thrice (ustified transitions tomilitary rule ' in 2643! 26FF and 2666 withthe reasoning that the Court must stayopen for "usiness in order to avoid puttingthe country into deeper chaos.

Ghow do you e&pect five men alone!

unsupported "y anyone! to declare martiallaw unconstitutional?

=-ustice 0ora" Patel >

%h M ti


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%he Muestions

• How could all "lame for future use of the0octrine of ecessity can "e put on

-ustice +unir -. alone?

• WouldnOt doing so amount to taking a very

restrictive view of the intelligence and

integrity of all future -ustices of theupreme Court?


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%he Muestions

• s legal theory so rigid and "lind that

anything that once "ecomes precedent

must remain a precedent even though

everyone knows that it is a wrongprecedent?

%he Answer??


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%he Answer??

ndeed! t/e +roraed co+uters who mustdo what they are programmed to do

"ecause of some fantastic lacuna in the

legal theory?ut@


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?ut

are living! "reathing! thinking! and feeling

people—su++osedl. +eo+le o* reat

interit. and


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A Comment

A"out a decade ago! following theinstallation of the last caretaker regime of

the Gdemocratic era in Pakistan!

suggested to a prominent Pakistanipolitician that the doctrine of necessity

was one of PakistanOs core (urisprudential

principles. %o this he replied!

Gyes! too much necessity and not enough

doctrineQQ = )rik -ensen The Asia Foundation’s Senior Legal Advisor)


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T/e !tate >>> A++ellant %!

Dosso and anot/er >>> Res+ondents


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eEuence

• #rief 5acts

• :aw Points

• ,easons

• -udgement Conclusion


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5acts of %he Case

• Proclamation of


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Contd//

• )ffect of Presidential


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Writ n High Court

• ,eference to a council of )lders.

• Convictions of section 22 5C, = of 2692>.

• 1round of attack.

• Contravention of Article 4


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:aw Points

• Whether the writs issued "y the HDC Were

within the am"it of new of article2 of the :aws

Continuing in 5orce


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,elevant Provisions

• Art. /// !%he Pakistan shall "e governed asmay "e possi"le in accordance with the late

Constitution

• %he c and HCs shall have power to issue writs.• All laws made immediately "efore the

Proclamation with such necessary adaptations

as the President deem fit Continue in force until

altered ! repealed or amended "y the competentauthority.

• o court shall call into Euestion any adaptation

made "y the President.


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• %he laws that are in force! according to

Article =iv> of %he Presidential of Article ii of the orderthe writ can only "e the infraction of any of

the laws mentioned in Article iv! or any

right recogni*ed "y that order and not theviolation of a right created "y the late

constitution.

!C7 C l i


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• Bnder the new legal order any law may atany time "e changed "y the Presidenttherefore! there is no such thing as a

fundamental rights.• Article @ of the late constitution laid a

restriction on the power of the legislatureto make laws involving "reaches of 5,and invalidity attached to all e&isting laws !customs and usages if they wereinconsistent with any of the 5, .

!C7s reasons Conclusions

• %his test to determine the validity of the laws and


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y

the fetters on the power of the legislature to

make laws "oth disappeared under the new

order • Bnless therefore! the President e&pressly enacts

the provision relating to 5,s! are not a part of

the law of the land and no writs can "e issued on

their "asis

• Article ii of the Presidential order provides that

Pakistan shall "e governed in accordance with

the late constitution "ut this provision does nothave the effect of restoring 5rs.

• %he position in regard to future writs is that


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• %he position in regard to future writs is that

they lie on the ground that anyone or more

of the laws mentioned in Article iv or anyother right reserved "y the Presidential

order has "een contravened.

• Analy*ing this provision means no writ ororder made after the proclamation shall

have any legal effect unless the writ was

covered in Article iv or any other right kept

alive "y the new order had "een

contravened


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Miss Asma Jilani

versusThe Government of the Puna! an" Another

Criminal A##eal No$ %& of %&'(

On a##eal from the Ju")ment an" Or"er of Lahore *i)h Court

B , "


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Ba+,)roun"

- Mali, Ghulam Jilani arreste" on (.th /e+0

%&'%

- Un"er /efen+e of Pa,istan Rules0 %&'%

- Ne+essar1 for se+urit10 #u!li+ interest an"

"efen+e of Pa,istan

- On 2%st /e+0 %&'% Mr$ Jilani 3as "etaine" in

his house un"er Martial La3 Re)ulation No$

'4 of %&'%


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- %5 Jan0 %&'( Writ of Habeas Corpus in Lahore

*i)h Court

- State v. Dosso and others

- Coup d’etat of (5 Mar+h %&6& re+o)ni7e" as a

revolution

- Juris"i+tion of Courts !arre" !1 Juris"i+tion of

Courts 8Removal of /ou!ts9 Or"er 2 of %&6&

- Courts havin) no authorit1 to +hallen)e

Martial La3 Re)ulations

- A##eal a)ainst *i)h Court:s "e+ision

; ti


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;uestions

-


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A1u! @han to ?ah1a @han

It is 1our legal and constitutional responsibility to "efen" the +ountr1 not onl1a)ainst eternal a))ression0 !ut also to save it

from internal "isor"er an" +haos$ The natione#e+ts 1ou to "is+har)e this res#onsi!ilit1 to #reserve the se+urit1 an" inte)rit1 of the+ountr1 an" to restore normal so+ial0 e+onomi+

an" a"ministrative life0 let #ea+e an" ha##iness !e !rou)ht !a+, to this an)uishe" lan" of %(.million #eo#le$

J " t


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Ju")ment

- Chief Justi+e *amoo"ur Rehman- Le)al Theor1 of *ans @elsen misrea" an" misa##lie" in

State vs. Dosso

- @elsen never favore" =totalitarianism:- The Comman"erDinDChief is not in the ultimate resort

the real master of the soverei)nt1

- ?ah1a:s Martial La3 neither a revolution nor a Coup

d’etat - Martial La3 onl1 3hen

> Civil Courts an" other Civil Authorities fail to fun+tion

-


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- Not a)ainst the ri)hts of +iti7ens

> Must not run +ontrar1 to the #oli+1 of la3ful soverei)n

- Courts +om#etent to hear an" "etermine an1 matter0

even thou)h it ma1 relate to its o3n uris"i+tion

- Both the or"ers Juris"i+tion of Courts 8Removal of

/ou!ts9 Or"er 2 of %&6& Martial La3 Re)ulation '4

of %&'% ille)itimate

- Justi+e Muhamma" ?aFu! Ali

- Tamizuddin Khan Case an" The State vs. Dosso ma"e a=#erfe+tl1 )oo" +ountr1 a lau)hin) sto+,:


94/268

- La3s that "e#rive Courts of their le)al fun+tions are

re#u)nant to the !asi+ la3s of Pa,istan

- artial !a" is neither more nor less than the "ill ofthe #eneral "ho commands the $rmy. %n fact& artial

!a" means no la" at all $ /u,e of illin)ton

- East Pa,istan a +lassi+al eam#le of a su++essful

revolution 3hi+h "estro1e" the National Le)al Or"eran" !e+ame a ne3 La3 +reatin) entit1

- Justi+e Saa" Ahma"- Onl1 those la3s of ?ah1a:s re)ime vali" that 3ere

a!solutel1 ne+essar1 on the !asis of "o+trine of

ne+essit1 3ithin the limitations of that "o+trine to !e

a"u")e" !1 the Courts


95/268

- Justi+e ahee"u""in Ahma"

- Justi+e Salahu""in Ahma"- Presi"ential Or"er No$ 2 restri+tin) the uris"i+tion of

Courts in+onsistent 3ith the Rule of La3 as it refle+ts

in"ivi"ual:s "ominant 3ill an" it sou)ht to ma,e Or"er

of a Martial Authorit1 immune from an1 atta+,

- Eisten+e of Revolution a Fuestion of fa+t0 onl1 to !e

"e+i"e" u#on evi"en+e an" +annot !e assume"

C t ti f Att G l


96/268

Contention of Attorne1 General

- Re)ime ha" re+eive" le)al re+o)nition of the Su#reme Court

- Base" on the +ases of uhammad %smail vs. The State an"

ian 'azal $hmad vs. The State ()*. Both the +ases 3ere

"e+i"e" !1 Justi+e *amoo"ur Rehman


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?eu Nusrat ?/utto > #Petitioner$

%s

C/ie* o* Ar. !ta**and

Federation o* Pa;istan > #Res+ondents$

PLD 19 !C 5


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!E&ENCE


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!E&ENCE

• #rief "ackground• Constitutional Articles Hit

• Precedents related to case

• ssues of -urisprudence nvolved• Contentions of the Appellants

• u"missions of the ,espondents

• ,easoning and -udgment of the Court• Conclusion emerging from discussions ofcase.

?RIEF ?AC8RO&ND


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?RIEF ?AC8RO&ND

•


101/268

?RIEF ?AC8RO&ND

• #hutto further angered military (unta in hishateful speeches and +ohammad Ahmed

Ihan =Ahmed ,a*aSs father> case added

fuel to fire• #hutto carried away "y peopleSs

enthusiasm and response

• #hutto arrested again on charges ofmurder

CON!TIT&TIONAL ARTICLE! "IT


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CON!TIT&TIONAL ARTICLE! "IT

• Article 23@ =>L

+aintaina"ility of petition

• Article 23@ => read with Article 266L

Aggrieved person

PRECEDENT RE ATED TO CA!E


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PRECEDENT RELATED TO CA!E

• Asma -illaniSs case L apprehension that

C decision rendered all successive

governments illegal for this period.

I!!&E! OF &RI!PR&DENCE IN%OL%ED


104/268

I!!&E! OF &RI!PR&DENCE IN%OL%ED

• IelsonSs theory of revolutionary legality• IelsonSs Pure theory of :awL not universally

accepted nor is it "ased on "asic doctrine ofscience.

• IelsonSs theory open to Criticism onsociological and moral grounds.

• 0octrine of ecessity =necessity makes

prohi"ited things permissi"le>• Bsurpation of power does not always amountto usurpation of power.

CONTENTION! OF T"E APPELLANT!


105/268

CONTENTION! OF T"E APPELLANT!

• %hat C


106/268

REA!ONIN8 OF T"E CO&RT


107/268

• Widespread allegations of massive

interference with the "allot papers• %hese allegations generated national

resentment

• 0istur"ances were "eyond control of civilarmed forces causing heavy loss of life andproperty

• %hat allegations esta"lished "y (udicial

decisions• %he C)C pu"lically confirmed the allegation

"y opposition



108/268


• %hat PPP/PA dialogue! if fails! wouldcause terri"le e&plosion

• n deadlock of PPP/PA dialogue! the

PPP Pun(a" issued fire/arm licenses to itsparty mem"ers

• As result of agitation !all economic! social

and educational activities stood seriouslydisrupted causing incalcula"le loss

&D8'ENT OF T"E CO&RT


109/268


%he C 'r !An3aar &l "a)!concluded thatL

%he e&tra/constitutional step taken "y thearmed forces of Pakistan was (ustified "y

reEuirements of tate necessity and welfare

of the people. As a result the presentpetition fails and is here"y dismissed.



110/268


• -ustices Waheedudin Ahmed! 0ora" Patel!+uhammad Haleem and 1.afdar hah

concurred with the C-! while! +ohammad

Af*al Cheema! +uhammad Akram! MaiserIhan and asim Hassan hah agreed with

C- and wrote separate short (udgments of

their own.

CONCL&!ION


111/268

CONCL&!ION

• Whenever a separation is made "etween

li"erty and (ustice! neither! in my opinion!

is safe.G =)dmund #urke>

CONCL&!ION


112/268

CONCL&!ION

8ood


113/268

and others J.. Appellants

versus

Ha(i +BHA++A0 A5B::AHIHA

and others J.,espondents

#ackgroundL


114/268

0ismissal of -une(o government in+ay 2633

u"seEuent dismissal of Provincial

Assem"lies Application for Writ of +andamus

in the :ahore High against the

dissolution of the Assem"lies

ContdL


115/268

ContdL

:HCOs refusal to grant the writprayed for

Points of :aw "efore the C to

d id


116/268

decideL

s the power conferred on thePresident "y the article 43=8>="> isa"solute or a Eualified one

0oes this discretionary power of thePresident ousts the (urisdiction ofthe uperior Courts of (udicial,eview

ContdL


117/268

ContdL

Can the date appointed for theholding of 1eneral )lections on thedissolution of Assem"lies fall

outside the contemplated period of69 days

Can a care/taker government "econstituted without a Prime +inister

ContdL


118/268

Can the word GPrime +inister in

the articles 68=8>! 83! 86 and theoaths in the third schedule "esu"stituted "y the word GPresident

without amending the Constitution

Was the dissolution of the

Provincial Assem"ly "y the1overnor without the approval ofthe President sustaina"le in law

Contd.


119/268

Contd.

s the Assem"ly constituted on the"asis of Partyless elections! a

departure from the constitution

1rant of relief under Article 266 is a

discretion of the court


120/268

learned CourtL

%he Article @3=8> read with the Article 43=8>="> "rings the

discretionary powers of the

President under the latter article

within the power of the -udicial

,eview "y the C

Article @3=8>


121/268

otwithstanding anything contained

in clause =2>! the President shall actin his discretion in respect of any

matter in respect of which he is

empowered "y the constitution to do

so =and the validity of anything done

by the President in his discretionshall not be called in question on

any ground whatsoever >

Arti+le 548(9

Not3ithstan"in) an1thin) +ontaine" in


122/268

Not3ithstan"in) an1thin) +ontaine" in

the +lause8(9 of Arti+le H40 the Presi"entma1 also "issolve the National Assem!l1

in his "is+retion 3here0 in his o#inionD

8a9$8!9 a situation has arisen in 3hi+h the

Government of the e"eration +annot !e

+arrie" on in a++or"an+e 3ith the #rovisions of the Constitution an" an

a##eal to ele+torate is ne+essar1

ContdL


123/268

ContdL n order to dissolve the Assem"ly the

President has to make an Gopinion asa precondition for his action asreEuired "y the Article 43=8>=">. %hus

this discretionary power of thePresident is a Eualified one.

%his word Gopinion has "een defined"y the uperior courts in A"ul Ala

+audoodi vs. 1overnment of WestPakistan.

t was admitted that sufficient


124/268

t was admitted that sufficient

(ustification e&ists to allow the

)lections to "e held "eyond 69 days

so that allocations of seats in the

ational Assem"ly can "e made"ased on the census of 2632 and

new constituencies "e delineated.


125/268

%here must "e a Prime +inister

heading the Ca"inet as demanded "ythe Article 62

G%here shall "e Ca"inet of +inisters!

with the Prime +inister at its head! to

aid and advise the President in the

e&ercise of his functions.


126/268

%he word GPrime +inister can "e a

su"stituted "y GPresident in the


127/268

%he act of 1overnor to dissolve theProvincial Assem"ly is not

sustaina"le in law as the

preconditions laid in the Article

228=8>="> were not met "ut the said

Assem"ly will not "e restored in thelarger interest of Pakistan


128/268

ConclusionL%h C h ld h d i i f h


129/268

%he C upheld the decision of the

:HC and o"served that the petitionersmade the petition only when the

President Ria ul HaE disappeared

from the scene to make ploiticalgains. As the time for the 1eneral

)lections has "een fi&ed so the

uperior Courts cannot "ecome aninstrument of political gain thus the

Petitioners are not given any relief.

%he Constitution of 2678


130/268

• Presidential 5orm of 1overnment• Centrali*ed 5ederal ystem

• Bnicameral Central :egislature

• 1overnors and Provincial :egislatures

• -udiciay

• slamic Character

%he nterim Constitution of 26F8


131/268

• Presidential 5orm of 1overnment•


132/268

• 5undamental ,ights• 0irective Principles of tate Policy

• Parliamentary form of 1overnment

• President and the Ca"inet• #icameral at Centre and Bnicameral atProvinces

• -udiciary

• slamic Provisions• )mergency Provisions

Amendments


133/268

2. ,ecognition of #angladesh

8. Ahmedis as on +uslims

. %he PC< 2632

2. 5ederal hariat Court

8.


134/268

• %hirteenth Amendment• 5ourteenth Amendment

• 5ifteenth Amendment #ill

2Fth Amendment


135/268

• :egal 5ramework


136/268

ntroduction


137/268

• Pakistan is a pluralistic society with differentethnic! linguistic! cultural! religious! sectarianand parochial segments of the populationliving together. All such groups have their own

distinct demands and aspirations to which theconstitutional and legal frame work mustrespond with clarity! sincerity andtransparency. Political demands and issuescannot "e pushed under the rug "y assuming

that diversity is of no conseEuence in view ofthe fact that 63 percent of the population is+uslims

ssues


138/268

• Weak Political Parties• 0e"ate over 5orm of 1overnment

• ,ole of :egislature

' overeign of u"ordinate?

• ,ole of -udiciary

' ndependent or u"ordinate?

• ,ole of the +ilitary

' +aster or ervant of the tate?

ssues


139/268

• ,ole of the #ureaucracy ' Pu"lic


140/268

• 5undamental ,ights and Civil :i"erties• Corruption and Coercion in the corridors of

Power

• Pakistan at crossroads

Conclusion


141/268

%he progressive political forces have in thepast lost ground to retrogressive ones. %his is

a great "etrayal of the people of Paksitan who

have repeatedly re(ected those who advocate

an o"scurantist! theocratic state. t is also a

"etrayal of the vision of the founder of the

natio who wanted Pakistan to take an

honoured place in the comity of nations as adeveloped and enlightened democratic state.

Conclusion


142/268

t is a fact of history that +uslims progressed!prospered and en(oyed peace during times

when religion was not imposed from a"ove "y

the state. t is universally acknowledged that

+uslims in the eras of A""asids in #aghdad!

the +oghals in ndia! and the


143/268

Whatever the shortcomings of democracy!it has produced "etter results than any

other system of governance in the course

of human history. een in the light ofhistorical e&perience and contemporary

realities! it can concluded that Pakistan

can only progress and prosper as a

modern progressive democratic state


144/268


145/268

Constitution making 26@F to 2647


146/268

• %he modified 1overnment of ndia Act=264> "ecame the nterim Constitution of

Pakistan in 26@F.

• %he Constituent Assem"ly =CA> was giventhe task of framing the Constitution.

Constituent Assem"ly


147/268

• Pakistan$s first Constituent Assem"ly cameinto "eing on -uly 87! 26@F and its inauguralsession was held on August 29! 26@F.

• towork out the principles on which theConstitution was to "e drafted.


148/268

• %he


149/268

• Constituent Assem"ly for lavishing attentionon this piece of rhetoric which was of no

practical "enefit to anyone. =Ayya* Amir>

• )ven +aulana +aududi was disappointedwith the fact that it did not produce any

positive results. According to him! it was such

a rain which was neither preceded "y a

gathering of clouds nor was it followed "yvegetation.

• %he #asic Principles Committee =#PC>


150/268

p = >

consisting of 8@ mem"ers was made to

work for the constitution.

• %he various su"/committees on 5ederal

and provincial duties! 5ranchise! -udiciary!

and 5undamental ,ights started working.

• #oard of %alimat/i/slamia was also set to

look for advice on the religious matters.

#asic Principles Committee =st0raft>


151/268

83th eptem"er 2649• %he


152/268

• :ower House =House of People> on the"asis of Population/@99 mem"ers.

' #oth Houses will en(oy )Eual powers.

L %he Head of tate elected "y (oint sessionwould "e for five years =%wo times only>.


153/268

y = y>• President had power of emergency

proclamation.• Appointment and other powers.• was not responsi"le to give answer to

anyone.• can "e a +uslim or non/+uslim.• would "e assisted "y the Prime +inister =P+>

and Ca"inet .

• Parliament can charge him "y 8D ma(ority.• He was given the power to "reak theconstitution.


154/268

@L Ca"inet was responsi"le to "oth theHouses.

4L Brdu will "e national language.

Criticis:


155/268

• %his report was severely critici*ed.

• %he religious group o"(ects that the report

contained nothing a"out slamisation.

• %his report was critici*ed strongly "y .C.Chattopadyaya and )ast Pakistan.

%h f iti i l t d t


156/268

• %he cru& of criticism was related to

underrepresentation in the central legislature andthe proposal for a strong center with vast powerson financial matters.

• )ast Pakistan was given eEual num"er of seats in

Bpper House! the same as West Pakistan.• %hus it reduces the principle of ma(ority andturned )ast Pakistan into a minority.

• +oreover! the interim report was preposterous for

the )ast Pakistan since it Brdu as nationallanguage and #engali was nowhere in theconstitutional arena.

?asic Princi+le Coittee

Re+ort ul. 1952 #2nd Dra*t$


157/268

Re+ort ul. 1952 #2 Dra*t$

• Head of tate would "e +uslim and no

change in powers.

• )Eual representation to )ast and West wingsL

• BH =Bpper House/House of Bnits> 79! 79.

• :H =House of People> 899! 899.

• +ore powers were given to :ower House.

• Ca"inet was made responsi"le to :ower

House.


158/268

• t was promised that law making would "ein accordance with :A+.

• o law would "e made in diso"edience of

slamic principles.• Advisory #oard of five slamic scholars

was founded.

• Muiet on national language again.

Criticism


159/268

• :ike the first report this was also critici*ed "ut thistime criticism arose from Pun(a" which consideredthe federal formula to "e defective.

• %hey demanded eEual representation for various

units in lower house and eEual power for "othHouses.

• %he Pun(a" mem"ers in the #asic PrinciplesCommittee and the 5ederal Ca"inet disliked the

formula "ecause they felt )ast Pakistan wouldeasily dominate West Pakistan which had "eendivided into nine units.


160/268

#ogra 5ormula


161/268

• +ohammad Ali #ogra! presented his packagepopularly known as the $#ogra 5ormula$.

• %he #ogra 5ormula was discussed in detail

and was approved "y the Assem"ly "ut"efore it could "e written down in the form of

constitution! the Constituent Assem"ly was

dissolved "y the then 1overnor general!

1hulam +uhammad! on


162/268

•


163/268

.

une>ul. 1955• 1hulam +uhammad called a Conventionon +ay 29! 2644.

• All its mem"ers were to "e electedindirectly ="y the provincial assem"lies>.

• n this way! the 8nd CA came into

)&istence.

One &nit !c/ee Octo-er 1955


164/268

• %he presence of different provinces in theWP had complicated the issue of the

WPO representation in the CA.

• t was handled "y uniting all the WP unitsinto a;in


165/268

•


166/268

• %he main points of this constitution are as followsL• Pakistan was to "e federal repu"lic "ased on slamic

deology.• A detailed and comprehensive list of fundamental

rights with an ndependent -udiciary was provided in

the constitution.• %he system of the parliamentary form of government

was adopted "oth at the Centre and in the provinces.• %here was distri"ution of powers "etween the Centre

and the provinces.

• %he constitution provided for Pakistan! whereineEuality "etween )ast and West wings had "eenmaintained.

5 th di t i" ti f "( t " t th


167/268

• 5or the distri"ution of su"(ects "etween the

centre and the provinces! three lists of su"(ecthad "een drawn up.

• %here was a special procedure to "e adoptedfor the amendment of the constitution! yet it

was the least rigid constitution. t wasreasona"ly fle&i"le.

• t had provided for two ational languages

Brdu for the West Pakistan and #engali forthe )ast Pakistan.

• nstead of dou"le citi*enship! one

citi*enship system was provided for the


168/268

citi*enship system was provided for the

5ederation of Pakistan.• %he constitution was silent as to "e

method of conducting elections "oth for

the Central and the Provincial legislatures.• And finally! there were the slamic

characters of the constitution.

slamic provisions of the 2647

constitutionL


169/268

constitutionL• %he name of the country will "e slamic

repu"lic of Pakistan.

• %he pream"le of the constitution em"odied

the sovereignty of 1od Almighty.• %he Head of the tate shall "e a +uslim.

• slamic Advisory Council shall "e set up.

• o :aw detrimental to slam shall "eenacted.

Criticism


170/268

• 8nd CA passed the Constitution "ased onar"itrarily made compromises. ConseEuently

the Constitution could not ensure sta"ility.

• %he most adverse implication was itsdecision to vest e&tra/ordinary powers in the

President

• 0espite the claim of the Constitution to "e a

parliamentary one. %he Constitution also

could not resolve the issue of the electorate.

• +oreover it created an artificial parity

"etween )ast and West Pakistan "y merging


171/268

y g g

the provinces! states and othersadministrative units of the western wing of the

country into


172/268

•


173/268

Constitutional commission


174/268

• After taking over President Ayu" Ihan setup a constitutional commission under

(ustice haha"/ud/0in to suggest

recommendations for the new constitutionof the country.

• %he commission after through and

lengthy discussion su"mitted its report on7th +arch 2672.


175/268


176/268

• n the view of the recommendation of thecommission a new constitution was not

framed "y a constitutional "ody which was

elected nor did it en(oy popular support.• %he constitution was thrust upon the

people in an undemocratic and

authoritarian manner.

Constitution o* 192

alient 5eatures of the ConstitutionK


177/268

alient 5eatures of the ConstitutionK

• %itle of the tate will "e slamic ,epu"lic of Pakistan.• A Powerful President who was responsi"le foradministration and affairs of the state.

• He should "e a +uslim! no less than @9 years of age!should "e capa"le to "e a mem"er of A.

• He would "e elected through not direct elections for atime of five years.

• f he has held office for more than 3 years! he couldlook for reelection with the support of the A and thePAs.

• ational Assem"ly was given the power to charge thepresident! however it was difficult to achieve.

• President could dissolve the A "ut in that case hemust seek re/election.

• President was the central point of all the)&ecutive! :egislative and -udicial powers.Ca"inet was responsi"le to him. All key

i t t t " d " P id t


178/268

appointments were to "e made "y President.

He could issue


179/268

• %here were two provinces of the federationL )astPakistan and West Pakistan.


180/268

• • ational solidarity would "e o"served.• • nterests of "ackward people would "e

looked after.

• •


181/268

Political Parties Act was introduced in 2678.

•


182/268

• Ayu" Ihan gave the second Constitution

to the country 0iscarding the parliamentary

system! the Constitution adopted thepresidential form of government "ut

without the system of checks and "alances

which is enshrined in democratic

Presidential systems in other countries.


183/268

Tahya Ihan


184/268

• ew Chief +artial :aw Administrator 1eneralTahya Ihan! soon after the taking/overannounced that he would hold elections for theconstituent assem"ly at an appropriate time.

• #efore the elections that were held in 0ecem"er26F9! 1eneral Tahya dissolved


185/268

%he :5< "rought an end to parity "etween

)ast and West Pakistan! accepting thenumerical ma(ority of the eastern wing.

• t also gave up the indirect elections as

had "een introduced "y Ayu" Ihan.• %he 26F9 elections! thus! were the first

general elections in the country to "e held

on the "asis of adult franchise.

• However! the election results that "roughtheikh +u(i"/ur /,ehman$s provincialautonomist Awami :eague as the ma(ority


186/268

autonomist Awami :eague as the ma(ority

party in the ational Assem"ly could not "ereconciled "y the military regime.

• %he failure of dialogue "etween the regime!the Awami :eague and the Pakistan People$s

Party which had emerged as the ma(orityparty in two provinces of West Pakistan / thePun(a" and indh/ paved the way for a crisiswhich the military regime tried to resolve "y

force.• )ast Pakistan was su"(ected to military actionon +arch 84! 26F2

• %he military regime$s failure in crisis

management led to its intensification and


187/268

culminated in the separation of )ast Pakistanon 0ecem"er 27! 26F2.

•


188/268

his interim Constitution to govern thecountry as long as the permanent

Constitution was not made.

• ational Assem"ly approved a temporary

Constitution! which was imposed on April

82! 26F8..

Constitution 'a;in• Constitutional Committee comprising

ational Assem"ly =A> mem"ers from all


189/268

ational Assem"ly =A> mem"ers from all

parties was set up in April 26F8.• :aw +inister was the Chairman of this

Committee.• All parties agreed on the future political

system in


190/268

with two gaps. t remained operational

during following periodsL

• 26F/FFL


191/268

Parliamentary ystem• t was a parliamentary constitution having

powerful Prime +inister =P+> as head of

government with a very weak President.President must act on the advice of P+.

All his orders were to "e countersigned "y

P+. Prime +inister to "e elected "y the

A. P+ e&ercised all e&ecutive authority.

• An important aspect of the Constitution of

26F was the sustaina"ility of the ational

Assem"ly which was elected for the


192/268

Assem"ly! which was elected for the

duration of five years and could "edissolved "y the President only on the

advice of the Prime +inister.

• %his was a normal parliamentary practicethat was incorporated in the Constitution.

• n order to strengthen the parliament! it

was laid down that a Prime +inister


193/268

against whom a resolution for a vote of no/confidence had "een moved in the

ational Assem"ly! "ut had not "een yet

voted upon! or against whom such aresolution had "een passed! or who was

continuing in office after his resignation!

could not recommend the dissolution of

the ational Assem"ly to the President.

• P+ was answera"le to the A. n 2634!

powers of the President were increased.


194/268

p

He en(oyed some discretion inappointments of

• P+. He had power to "reak up the A. He

had the powers of appointment ofcaretaker P+. He gives his assent to "ills

passed "y the parliament or returns these.

PresidentL


195/268

• +ust "e at least @4 years of age! +uslim!Eualified to "ecome mem"er of the A.

• He is elected "y the Parliament and the

Provincial Assem"lies for 4 years.

Parliaent 3it/ t3o /ouses:


196/268

• • Bpper House called enate. n this houseeEual representation is given to Provinces.

• eats are reserved for the tri"al areas!

women and technocrats.

• ts original strength was 7! which was later

raised to 3F and then to 299.

• enate is elected indirectly. tOs a permanent

House as half of its mem"ers are elected

after three years.

:ower House=ational Assem"ly>

• ational Assem"ly is elected on population "asis


197/268

ational Assem"ly is elected on population "asis.

• ts


198/268

• 5ederation of Pakistan has four provincesand federally administered areas. %wo lists

are given in the constitutionL 5ederal list

and Concurrent list.• ,esiduary powers "elong to provinces.

Provincial tructureL

P i i l 1 i t d " th


199/268

• Provincial 1overnors are appointed "y thePresident on the advice of the P+. )lected Chief+inister e&ercises e&ecutive powers.Parliamentary system is there in the provinces.

• i*e of the provincial assem"lies variesL

n 8998L

• Pun(a" F2

• indh 273

• W5P 28@• #alochistan 74


200/268

• )nough provincial independence isguaranteed.

• %radition of strong centre continues

• Centre has emergency powers.• 1overnorOs rule can "e forced if the

government cannot function in the

provinces. Provinces are dependent oncentre for 5inances.


201/268

Principles of PolicyL• slamic provisions are provided in

Principles of Policy.

5undamental ,ightsL• 5undamental ,ights are protected in the

constitution and are implemented through

the highest court.

slamic ProvisionsL

• %itle of the state is slamic ,epu"lic of


202/268

Pakistan.• %he o"(ectives resolution was the

Pream"le in the initial constitution "ut

through article 8/A of 3th amendment itwas inserted in the constitution in 2634.

• slam was declared the tate ,eligion of

Pakistan.


203/268

• 0efinition of +uslim was included "y anamendment.

• Principles of Policy also carry some

slamic clauses.• Council for slamic deology is recogni*ed

under the constitution.

• 5ederal hariat Court was added in 2632.

ational :anguageL

• Brdu is declared ational :anguage!however )nglish may "e used for official


204/268

g y

purposes until preparations would "e madefor its replacement "y Brdu.

• Provincial Assem"ly may prescri"e measuresfor teaching! promotion and use of aprovincial language in addition to the nationallanguage.

ational ecurity CouncilL

• ational ecurity Council was added in 8998in advisory capacity.

-udiciaryL

• An independent (udiciary is given under


205/268

the constitution. upreme Court ofPakistan is the highest court.


206/268

Amendments in constitution of

26F

3th Amendment =43/8">

• %he )ighth Constitutional Amendment


207/268

• %he )ighth Constitutional Amendment

added a clause to the Article 43 giving to

the President the power to dissolve the

ational Assem"ly in his discretion where!

in his opinion!an appeal to the electoratewas necessary.

.


208/268

• %his clause had far reaching implicationsnot only in making the assem"ly

dependent and su"servient to the

President! "ut also drastically changing

the parliamentary character of the

Constitution! tilting it towards a

presidential one.

• After "eing inducted in the Constitution!

this clause was invoked "y the President


209/268

on four occasions in a short span of nineyears "etween 2633 and 2667. %his

clause was repealed in the %hirteenth

Constitutional Amendment passed on April

9@!266F =awa* harif govt>.

• %he )ighth Amendment had given similar

power to the governors with respect to the

provincial assem"lies.

2th Amendment

• %he parliamentary character of the


210/268

Constitution was restored as a result ofthe %hirteenth Amendment =266F>.

• Which also accompanied the restoration

of the prime ministerial advice as "eing"inding for the President with respect to

the appointment of governors and taking

away of the discretionary powers of the

President to appoint the three chiefs of the

armed forces.

2Fth Amendment


211/268

• However! the eventeenth Amendment =wasan amendment to the Constitution of Pakistan

passed in 0ecem"er 899! after over a year

of political wrangling "etween supporters and

opponents of Pakistani President Perve*+usharraf> once again shifted the pendulum

to the side of the President.

• %he President can now once again dissolvethe ational Assem"ly at his discretion.

23th Amendment


212/268

• Was passed "y the ational Assem"ly ofPakistan on April 3! 8929! removing the

power of the President of Pakistan to

dissolve the Parliament unilaterally!

turning Pakistan from a semi/presidential

to a parliamentary repu"lic.

"i/li/ts o* t/e 1Ht/

Constitutional Aendent:


213/268

• Amendment to Article 7 seeks to pre/empt

military coups in future.

Article 43=8"> to "e repealed! su"stituted

with U0issolution of ational Assem"lyO President may dissolve A in case no/

confidence vote passed against P+

%otal strength of ca"inet should not e&ceed

22V of total mem"ership of parliament.

• 1overnor should "e a resident and registeredvoter of hisDher province! heDshe would "eappointed "y president on prime ministerOs


214/268

pp y p p

advice Provinces reEuired "y law to esta"lish

local government systems! devolve political!administrative and financial responsi"ility and

authority to elected representatives P+ to "e chairperson of CC! mem"ers toinclude C+s! mem"ers from federal govt

Amendment to Article 24F says federalgovernment must consult provincialgovernment "efore installing hydroelectricpower stations in any province.

• P+ to forward three names for office ofC)C! in consultation with opposition leader inational Assem"ly! to a parliamentary


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committee for confirmation Committee proposes insertion of Article

2F4=a> to deal with appointment of (udges toupreme Court! high courts! 5ederal hariat

Court Committee proposes su"stitution of Article

8@! says federal government Ushall havecontrol and command of armed forces!

supreme command of armed forces shallrest withN J president

• President to appoint -oint Chiefs of taff

Committee chairman! chief of army staff!


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chief of naval staff! chief of air staff W5P will "e renamed UIhy"er/

PakhtoonkhawahO

tate will provide free! compulsory

education to children aged "etween 4 and27 years


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Amendments to Clause 2 seek su"stitutionof U#aluchistanO with U#alochistanO! UindO with

UindhO

nsertion of clause sought to "ar persons

acEuiring citi*enship of foreign country fromcontesting elections to parliament

All elections under constitution! other than

those of P+ and C+! to "e "y secret "allot.

82st Amendment• #Does an.one ;no3 t/e 21st aendent to t/e &! Constitution $

• !/ort title and coenceent:


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• %his Act may "e called the Constitution =%wenty 5irst Amendment> Act! 8924.• t shall come into force at once.

• %he provisions of this Amendment Act shall remain in force for a period of two years

from the date of its commencement and shall cease to form part of the Constitution

and shall stand repealed on the e&piration of the said period.

• Aendent o* Article 15 o* t/e Constitution: n the Constitution of the slamic,epu"lic of Pakistan! hereinafter called the Constitution! in Article 2F4! in clause =>!

for the full stop at the end a colon shall "e su"stituted and thereafter! the following

proviso shall "e inserted! namelyL/

• Provided that the provisions of this Article shall have no application to the trial of

persons under any of the Acts mentioned at serial o. 7! F! 3 and 6 of su"/part or

Part of the 5irst chedule! who claims! or is known! to "elong to any terrorist group ororgani*ation using the name of religion or a sect.

• E!lanation"# $n this !roviso% the e!ression &sect’ means a sect of religion and does

not include any religious or !olitical !arty regulated under the Political Parties 'rder%

((*

82st Amendment ContdJ

•


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•Aendent o* First !c/edule o* t/eConstitution: n the Constitution! in the 5irst

chedule! in su"/part of Part ! after entry 4! the

following new entries shall "e added! namelyL/

• %he Pakistan Army Act! 2648 =XXXXX of 2648>.• %he Pakistan Air 5orce Act! 264 =; of 264>.

• %he Pakistan avy .

• %he Protection of Pakistan Act! 892@ =X of 892@>.4N

Anal.sis o* 21st Aendents in t/e Constitution o*

Pa;istan 19J Pa;istan Ar. Act 1952 Etc:

• %hese amendments have "een made for two yearsL/

https://en.wikipedia.org/wiki/Twenty-first_Amendment_to_the_Constitution_of_Pakistanhttps://en.wikipedia.org/wiki/Twenty-first_Amendment_to_the_Constitution_of_Pakistan


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• Ieeping in view the a"normal circumstances during this war againstterrorism.

• %o protect the tate and the ation.

• %o give protection of the constitution to these amendments in the

laws and other measures.

• %o protect Pakistan from the terrorist groups or their mem"ers oraiding them in the name of religion or sect.

• %o ensure the speedy trial and conclusion of the cases.

• Ieeping in view the weaknesses of the nvestigations.

• %o protect the witnesses! investigating officers! prosecutors (udges

"y providing them a secured environment.

• %o release the witnesses! investigating officers! prosecutors (udges

from threats and influence

• %o save the fundamental rights! powers of the Provinces from

suspension during the war against terrorism under article 88 of the

Constitution


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Constitution.

• %o restrain to invoke the authorities under Article 2@4 of the

Constitution regarding calling the Armed 5orces.

• %o constitutionali*e legali*e these amendments through the

Parliament to save it from challenging "efore the courts.

• %o give effect laws through the 82st Amendment in the Constitutionwhich would strengthen the ational Action Plan.

• Note: > Y%he wrong application of these laws and or in/(ustice would

"e resulted against the tate the ation.

• Note:> Y%he #ar Councils #ar Associations have passed the

,esolutions against it as well as the Petition against it have "een filed"efore the August upreme Court of Pakistan on the plea that it is

against the independence of the -udiciary.


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• ection 39L Iinds of Court +artial.

• 1eneral Court of Commander/in/Chief

• 0istrict Court +artial.

• 5ield general Court +artial


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5ield general Court +artial.

• ummery Court +artial.

• Note: Head of Court +artial is called President.

• ection 228L u"(ect to the provisions of this ActK ,ule of evidence

like in Criminal Courts.

• entenceL 2st step. 5indings of entences• 8nd step. Confirmation or ,evise "y the Higher


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• ection 2L #ar to AppealL o appeal lie against 0ecision or proceedings ofthe Court +artial.

• ection 2@L Pardon or ,emissions.

• ection 2@@L uspension of entence.

• ection 2@7L ,elease on suspension.

• ection 2@3L ,elease on set/aside.• #Anneure ?$

• Analysis of the Protection of Pakistan Act 892@ =P. =5or %wo Tears>

• %he pecial Courts for peedy %rial of the cheduled


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A%


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1overnment of Pakistan in -anuary 8924 to crack down on terrorism and tosupplement the ongoing anti/terrorist offensive in orth/Western Pakistan. t

is considered as a ma(or coordinated state retaliation following the deadly

Peshawar school attack. %he plan received unprecedented levels of support

and cooperation across the country$s political spectrum! inclusive of the

federal and provincial governments.

• t com"ines foreign and domestic policy initiatives aimed to crackdown and

eventually eliminate proscri"ed organi*ations across the country. %he plan

was provided the framework for the %wenty/first Amendment to the

Constitution of Pakistan which esta"lished speedy trial military courts for

offences relating to terrorism. t has also led to the resumption of capitalpunishment and mandatory re/verification through fingerprint recognition of

all su"scri"ers on mo"ile telephony


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%H) P:A• After the Peshawar incident! government decided to proceed with the

e&ecution of e&tremists convicted in terror related cases. %he 1overnment has


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already started implementation.• pecial courts! headed "y the officers of the armed forces! will "e esta"lished

for the speedy trial of terrorists. %hese courts will "e esta"lished for a term of

two years.

• 5ormation of armed militia will not "e allowed in the country.

• AC%A will "e revived and made effective

• %here will "e a crackdown on hate/speech! and action will "e taken against

newspapers! maga*ines contri"uting to the spread of such speech.

• 5inancial sources of terrorists and terror organi*ations will "e cut.

• #anned outfits will not "e allowed to operate under different names.

• pecial anti/terrorism force will "e raised.

• +easures will "e taken to stop religious e&tremism and to protect minorities.

• +adrassas will "e regulari*ed and reformed.

• Print and electronic media will not "e allowed to give any space to terrorists.

• Print and electronic media will not "e allowed to give any space to terrorists.

• Ieeping the reha"ilitation of 0Ps as the top/most priority! administrative and

development reforms in 5A%A will "e e&pedited.

• Communication systems of terrorist organi*ations will "e destroyed.

• ocial media and the nternet will not "e allowed to "e used "y terrorists to


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ocial media and the nternet will not "e allowed to "e used "y terrorists to

spread propaganda and hate speech! though e&act process for that will "e

finali*ed.

• :ike the rest of the country! no space will "e given to e&tremism in any part of

the Pun(a".

•


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-anuary 8924.

• and

topping them with 8 feet =9.72 m> high ra*or wire.


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topping them with 8 feet =9.72 m> high ra*or wire.

• #y 24 +arch 8924! Pakistan %elecommunication

Authority =P%A>! has verified more than F9 million +Os

and 22 million were "locked due to not having re/

verification.

• 5rom 8@ 0ecem"er 892@ to 84 +arch 8924! law

enforcement agencies arrested 8!@F people on

different charges in 83!387 operations.

•


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• %he constitutional history of Pakistan is areflection of all the peculiarities andcontradictions of its social! economic andpolitical development since independence formore than a Euarter of the century.

• %he struggle over particular formulations invarious drafts of the Constitution which wenton in the legislative "odies was often ane&pression of the clash "etween the vital

interests of the main social groups inPakistan.

• t is not surprising therefore that the

struggle over many constitutional issues


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=the state language! from of elections!division of powers "etween the 5ederation

and the Provinces! etc.> went on for years!

leading to "loody clashes in which

thousands of people were victims and

often precipitating acute political crises.

• %he constitution of 26F was an e&pressionof the "alance of class forces esta"lished


234/268

after the political crises of 26F2 and thecollapse of the military dictatorship.

• %he present Constitution of Pakistan ischaracteri*ed "y such fundamental principles

as a parliamentary repu"lican system! federalstate structure! and proclamation ofdemocracy! freedom! eEuality! tolerance andother "ourgeois/democratic freedoms! and

the attainment of social (ustice as thesupreme aim of the state.

uggested


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,eading

Civil +ilitary ,elations


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• ,esource ' Article

• tate +ilitary and 0emocracy "y Ak"ar Raidi

• Civil +ilitary ,elations "y :auren 1reenwood and

1owthaman #alachandran

' #ooks

• 5rontline Pakistan =+ilitary and +ullah> "y Rahid

Hussain

• +ilitary nc. "y Ayesha iddiEa

History

- Sin+e in"e#en"en+e in %&H'0 Pa,istan has e#erien+e" 2. 1ears of militar1 rule 8%&54


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to %&'%0 %&'' to %&44 an" %&&& to (..49K even 3hen not in )overnment the militar1has +onstantl1 sou)ht to +entralise an" +onsoli"ate #oliti+al #o3er0 an" the militar1

8nota!l1 militar1 intelli)en+e0 the Inter Servi+es Intelli)en+e 8ISI99 eerts si)nifi+ant

overt an" +overt +ontrol over the +ivilian authorities in !oth "omesti+ an" forei)n

affairs$ Given Pa,istan:s volatile relationshi# 3ith In"ia0 +entre" on the "e+a"esDlon)

+onfli+t for +ontrol of @ashmir0 Pa,istan has al3a1s !een a =se+urit1 state:0 an" the

national militar1 has histori+all1 !een a ,e1 #la1er in the )eo#oliti+al arena$*o3ever0 information on Pa,istan:s arme" for+es is ver1 limite"0 an" intera+tion

3ith estern +ivilian an" militar1 institutions is heavil1 +ontrolle"$ The +limate of

se+re+1 3ithin the Pa,istan militar1

an" its asso+iate" se+urit1 servi+es "ire+tl1 an" in"ire+tl1 affe+ts +ivil>militar1

+oor"ination an" #resents humanitarian a+tors 3ith a hi)hl1

+om#li+ate" o#erational environment$


238/268


239/268

T/e relations/i+ -et3een t/eilitar. and Isla

- Praetorianism

- General ia ul *aF:s tenure


240/268

- oun"e" in %&H4 !1 a British arm1 offi+er0 MaorDGeneral R$ Ca3thome0 then /e#ut1 Chief of

Arm1 Staff in Pa,istan0 the a)en+1 3as initiall1 +har)e" 3ith #erformin) all intelli)en+e tas,s

at home an" a!roa"$ Its s+o#e of o#eration eten"e" to all areas relate" to national se+urit1$

Until the %&6.s0 the ISI lar)el1 remaine" an o!s+ure or)ani7ation that +onfine" itself to #la1in)

its s#e+ifie" role$ But in the mi" %&'.s its s+o#e 3as e#an"e" to "omesti+ #oliti+s$ Ironi+all10

it 3as a +ivilian lea"er0 ulfi,ar Ali Bhutto 3ho +reate" the ISI:s internal 3in) 3hi+h #la1e" a

+riti+al role in the oustin) of his )overnment a fe3 1ears later$ It 3as to +ast its heav1 sha"o3over the +ountr1:s #oliti+s in later 1ears$

- or more than t3o "e+a"es the ISI ha" s#onsore" Islami+ militan+1 to +arr1 out its se+ret 3ars$

It 3as a +ru+ial #artner in the CIA:s !i))est +overt o#eration ever0 one that for+e" the Soviet

Union to #ull out of Af)hanistan an" serve" as a +atal1st to the "isinte)ration of the +ommunist

su#er#o3er$ In Af)hanistan0 as 3ell as @ashmir0 the a)en+1 "is+overe" the effe+tiveness of

+overt 3arfare as a metho" of !lee"in) a stron)er a"versar10 3hile maintainin) the element of #lausi!le "enia!ilit1$ The ISI falls "ire+tl1 3ithin Pa,istan:s militar1 +hain of +omman" an"

ha" also serve" as an instrument for #romotin) the militar1:s "omesti+ #oliti+al a)en"a an" the

)uar"ian of its selfD#rofesse" =i"eolo)i+al frontiers: of the +ountr1

Civil 'military interventions


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• Chile!#ra*il!)gypt!1hana!igeria!%urkey!yria! %hailand! ndonesia! orth Iorea and

Pakistan repeatedly e&perienced

disruption of civilian rule and imposition of

military regimes

•

Civil/+ilitary ,elations in Pakistan


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;acuum of democratic leadershipLi. 0emise of -innah 22th eptem"er 26@3

ii. 0emise of :iaEat 27th


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Pro,incialis Pun?enali contro,ers.• 1eographic separation

• )ast West wings

• )conomic disparity

• nstead of politicalsolutions "ureaucratic/military solutions weree&plored

• 0eprivation! alienation

converted into separatistmovement

• Constitution making delayedfor 6 years

• )ast Pak demandedma&imum provincial

autonomy• West Pak advocated strong

center

• )ast Pak had 4@ Vpopulation demanded adult

franchise• +ilitary intervention

Kest East Pa;istan (as on 1961)


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ource

httpLDDwww.(stor.org

Territor. Po+ulation

West Pakistan 29!@9 sE mile @ million

)ast Pakistan 44!287 sE mile 49.6 million

• years long military rule

:ong military rule


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• @ military coups=2643!2676!26FF!2666>

• Pakistan Army eEuipped with nuclear power

• After independence eruption of Cold war era

• After demise of -innahZ :iaEat office of1overnor 1eneral "ecame instrumental forcreating hurdles for democratic process


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) t l th t

Civil/+ilitary ,elations inPakistan


247/268

• )&ternal threats• nternal threats

• ituation strengthened military as a strong

institution

A t h d it lf i t th t t

Highly organi*ed military


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• Army entrenched itself into the state• uspended constitutions

• mposed military rule

• #rought own constitutional recipes• nto profit venture pro(ects

• )sta"lished C /899@

PAI%A


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di d d i t ti l th t t

ndian 5actor


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• ndia regarded as an e&istential threat toPakistan

• Hindu/+uslim antagonism

• Iashmir dispute• Wars 26@F/74/F2/66

• Cross "order terrorism

• 0emise of -innah

nternal 5actors


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• Assassination of :iaEat• With demise of :iaEat the parliamentary era

came to an end

• #ureaucratic interventions started• 1overnors rule imposed! chief ministers

dismissed• 0istance "etween 8 wings gave "irth to

num"er of administrative! political andconstitutional pro"lems

nternal threats


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•

Documents

Contitutional Amendments