Constitution 19-05-24

Mainly focus Constitution + Current Issues

Book
Administrative System of Pakistan Constitutional and
Political History of
WORLD’s LEGAL SYSTEM Pakistan (Hamid Khan)

Inquisitorial system (Civil Law) e.g. Germany, France

 Civil Law countries
 Court is actively involved in investigating the facts of the case proof of facts by
taking investigating of the case
 In this system conduct of the trial is in the hands of the court
 In this system there is little use of judicial precedent.

Adversarial system (Common Law) e.g. UK, USA, Pakistan

 Common law countries
 Court act as referee between the prosecution and defence
 Parties determine what witnesses they call
 In this system previous decisions of higher courts are binding.

CONSTITUION
Aristotle Definition:
“Constitution is the way of life state has chosen for herself.”
Austin Definition:
“Constitution fixes the structure of supreme government.”

Types of Constitution:
 Written or Unwritten
 Rigid or Flexible
 Unitary or Federal
 Parliamentary or Presidential
America’s constitution is considered to be a relatively rigid document. This
means that it is not easily changed or amended. So far, 27 amendments
have been made. To make amendments, you need:
 A two-thirds majority vote in both the House of Representatives and the Senate
 A convention called by two-thirds of the state legislatures. (propose
amendments directly, by passing Congress)
 Any proposed amendments must be ratified by three-fourths of the states.

Why the America’s constitution is kept rigid:

The US Constitution is kept rigid to:
 Keep the government stable and consistent.
 Protect individual rights and freedoms.
 Prevent any one group or person from gaining too much power.
 Ensure careful consideration and debate before making changes.
 Maintain the balance of power between the federal government and states.
This rigidity helps preserve the foundation of the US government and protect its
democratic principles.

Pakistan’s Adversarial System.

Pakistan’s Constitution is Flexible.
 It can be amended through a formal process, allowing for changes to be made
as needed.
 The amendment process is outlined in the Constitution itself, providing a
mechanism for flexibility and adaptability.
 The Constitution has been amended several times since its adoption in 1973,
demonstrating its flexibility in practice.

Pakistan’s Constitution is written.

 Pakistan's Constitution is also written down, meaning it's documented in a
single text.
 This provides clarity and sets out the rules and principles that guide the
government and its citizens.
 It serves as a foundational document for the nation's governance.

Pakistan’s constitution is Preamble:

 a. Sovereignty e. Fundamental Rights
b. Principles f. Judicial Independence
c. Muslims and Minorities j. Territorial Integrity
d. Territories

Pakistan’s constitution is Trichotomy:

"Trichotomy" typically refers to the separation of powers within a governmental
system, dividing the responsibilities among three branches: the executive,
legislative, and judicial.
1. Executive: Who make sure laws are followed and carried out. (Law
enforcement)
2. Legislative: Who make the laws. (Law Making-Parliament)
3. Judicial: Who make sure laws are fair and decide legal disputes.
(Interpretation of Laws)

"Rule of law" simply means that everyone, from ordinary citizens to

powerful leaders, must obey the law. It's about fairness and equal
treatment under the law for everyone.

Due process of Law:

 Due process developed from clause 39 of Magna Carta in England
 Administration of justice
 Safeguard from arbitrary denial of rights

Due Process in Pakistan's Constitution:

1. The law protects people's lives and freedom.
2. Everyone has rights to fairness and equality in court.
3. Legal rules must be followed before taking away someone's freedom.
4. Judges make sure laws are applied fairly.
5. These rules ensure that people's rights are respected and protected by the law
in Pakistan.

Separation of Powers:
  Separation of power is political doctrine originating in the writings of
Montesquieu (French philosopher and political thinker).
 Three separate branches of Government which have defined abilities
to check the power of other branches (the executive, legislative, and
judicial)
 Heavily influence in the writing of the USA constitution.
 In Pakistan, no separation of power due to parliamentary system.
 In America, separation of power due to presidential system.

Functions of the Constitution:

 Declares territorial and administrative structure of the state
Article 1: Declares the territories that comprise Pakistan, including
4 provinces, Islamabad Capital Territory, Federally Administered
Tribal Areas (FATA), and other territories that may be included in
the future.
Article 257: of the Constitution of Pakistan acknowledges the
special status of the territories of Azad Jammu and Kashmir (AJK)
and Gilgit-Baltistan.

 Regulate and defines the power of the institutions of the state

Article 41 to 100 deal with the powers and functions of
various institutions, including the President, PM, Cabinet,
Parliament and Judiciary
1. Article 50: Defines the powers and role of the Federal
Government.
2. Article 51: Specifies the powers of the Senate and the National
Assembly.
3. Article 89: Deals with the powers and functions of the President of
Pakistan.
4. Article 90-91: Specifies the powers and functions of the Prime
Minister.
5. Article 175-183: Deals with the powers and functions of the
Judiciary.
 6. Article 70: Deals with the money bills and their passage through
NA

 Defines rights and responsibilities of the citizens

Articles 8-28: Define the fundamental rights of citizens,
including
1. Article 9: Right to life and liberty
2. Article 13: Protection against self-incrimination
3. Article 19: Freedom of speech and expression
4. Article 20: Freedom of Religion
5. Article 25: Equality before the law
6. Article 25-A: Right to education

 Constitution defines nature of relationship between Center and unit

1. Article 142: Specifies the relationship between the
Federation and the Provinces, including the distribution of
legislative powers.
2. Article 143: Deals with the distribution of revenue between
the Federation and the Provinces.
3. Article 144: Specifies the duties of the Federation and the
Provinces in relation to each other.
4. Article 154: Established a Council of common Interests (CCI),
which resolved disputes between center and provinces.
5. Article 245: Deals with the role of the Federal Government in
maintaining law and order in the provinces.

Referendum: A referendum is like a direct vote where people express

their opinions on a specific proposal or issue. Referendums can lead to new
policies or law, or they may provide advisory input for policymakers.

Plebiscite: A plebiscite is like a big vote where people in a specific area

decide on their future. It's often used to determine if they want to be
independent, join another country, or have more autonomy.
For example, in Pakistan, a plebiscite was held in 1947 in the princely state
of Jammu and Kashmir to decide its future. The people were given the
choice to join either India or Pakistan, or to remain independent. However,
the plebiscite was never fully conducted, and the issue remains
unresolved, leading to ongoing tensions between India and Pakistan over
the region.
De facto means illegal or improper existence of anything.
E.g., General Pervez Musharraf's rule in Pakistan from 1999 to 2008 is often
described as a de facto government. He seized power through a military
coup in 1999 and ruled the country without being democratically elected,
which made his government de facto in nature.
De jure means legal or proper existence of anything.
E.g., Asif Ali Zardari, the former President of Pakistan, was a de jure
president. He was democratically elected and sworn into office according to
the constitutional provisions of Pakistan, making his presidency legally
recognized and valid.
Forms of Governments
Parliamentary and Presidential System
Parliamentary:
 It is the structure in which the executive branch derives it democratic legitimacy
from legislature (Parliament) and also accountable to it.
 In parliamentary system head of the state is normally different from the head
of the government e.g. Pakistan, India etc.
Merits-

 The executive is the part of the legislature and hence it allows for greater
coordination between them.
 This system is also called 'Responsible Government' because the members
of the legislature address issues of public concern.
 This system prevents autocracy as the government can be removed from
power by passing a no-confidence motion in the parliament.

Demerits-

 The government is unstable and can be removed from office by passing a

no-confidence motion in the parliament.
 Due to the instability, the governments are often reluctant to take
important and radical long-term decisions.
 Whenever a different party comes to power, it tries to ignore the
development projects started by the previous government.
Presidential:
 It is the system the office of the head of the government and head of
the state is combined in a single man i.e. the President.
 All the executive power is vested in the president and all government
actions are his responsibility.
Merits:

1. Strong Executive Power: Direct election of the president provides a mandate

for strong and decisive leadership.
2. Separation of Powers: Clear division between executive and legislative
branches helps maintain checks and balances.
3. Stability and Continuity: Fixed terms ensure stability and allow for long-term
planning and policy implementation.
4. Direct Accountability: Presidents are directly accountable to the electorate
through elections, enhancing transparency and responsiveness.
5. Efficient Decision-Making: Ability to make swift decisions without the need for
consensus-building can lead to effective governance.

Demerits:

1. Potential for Gridlock: Separation of powers can lead to legislative gridlock if

the president's party does not control the legislature.
2. Limited Checks and Balances: Weaker legislative oversight compared to
parliamentary systems may lead to concentration of power in the presidency.
3. Rigidity in Leadership Change: Fixed terms can make it difficult to remove
ineffective presidents before their term ends.
4. Polarization: Presidential elections can exacerbate political polarization and
societal divisions.
5. Risk of Authoritarianism: Strong executive powers may lead to concerns about
authoritarian tendencies and abuse of power.

Unitary system versus Federation:

 In a unitary government system, a single central government has
total power over all of its other political sub divisions. In this system
 central government has total authority all over the country e.g. UK,
France etc.
 In a federation powers and responsibilities are divided. In federation
provinces and territories enjoys some rights and powers are shared
between the federation and units e.g. Pakistan, India etc.
 Unitary Merits and Demerits
Merits:

1. Simplicity and Efficiency: Centralized decision-making leads to

streamlined governance and efficient implementation of policies.
2. Uniformity and Consistency: Laws and policies are consistent nationwide,
promoting national unity and coherence.

3. Clarity of Authority: Central government holds ultimate power, reducing

jurisdictional conflicts and ensuring clear governance.
4. Ease of Coordination: Centralized structure facilitates smooth
coordination between central and local governments.
5. Flexibility in Crisis Management: Central government can quickly
mobilize resources and respond to emergencies without bureaucratic
obstacles.

Demerits:

1. Limited Local Autonomy: Local governments have restricted decision-

making powers, potentially neglecting regional needs.
2. Potential for Over centralization: Concentration of power at the center
may stifle local innovation and responsiveness.
3. Risk of Political Unrest: Centralized governance can lead to regional
discontent or separatist movements.
4. Administrative Burden: Managing diverse regions centrally may lead to
inefficiencies and bureaucratic delays.
5. Vulnerability to Government Failures: Ineffectiveness or failures at the
central level can disrupt governance nationwide without regional buffers.

 Federation Merits and Demerits

Merits:
 1. Decentralization of Power: Federal systems allow for local autonomy and
decision-making, distributing power between central and regional
governments.
2. Regional Diversity: Regions can implement policies that reflect local
preferences, cultural differences, and economic conditions.

3. Balanced Governance: Division of powers between federal and state

governments helps prevent the concentration of power and promotes
checks and balances.
4. Flexibility and Adaptability: Federal systems can respond effectively to
diverse regional needs and challenges.
5. Protection of Minority Rights: Federalism safeguards minority rights by
allowing regions to govern according to local values and beliefs.

Demerits:

1. Complexity and Duplication: Overlapping jurisdictions between federal

and state governments can lead to administrative complexities and
duplicated efforts.
2. Potential for Disunity: Differences in policies across regions may create
disparities and challenges in achieving national unity.

3. Coordination Challenges: Collaboration between federal and state

governments may be cumbersome, impacting effective governance.
4. Risk of Regionalism: Strong regional identities can lead to conflicts
between federal and state governments, affecting national priorities.
5. Inflexibility in Crisis Management: During emergencies, delays in
decision-making between federal and state governments can hinder swift
responses.

Tiers of Government in Pakistan

 Federal Government Article 41 primarily
deals with the
 Provincial Government qualification for the
office of President
 Local Government and the process of
their election.
FEDERAL LEVEL
Federal Government (Article 90)
1. Prime Minister (Chief executive of Federation) is the head of Federal
government.
2. Federal Ministers (Appointed by President on advice of PM)
3. Executive authority of the federation shall exercise in the name of the
President by federal government
4. President is responsible for signing official notifications (Article 41)
Cabinet (PM plus federal minsters)
Article 91 delineates the powers and responsibilities of the Prime Minister,
Federal Ministers (FM), and the federal cabinet, including their collective
responsibility to the Parliament.
Parliament (Majlis e shura) consists of three components i.e. the
President, National Assembly and Senate

Article 49 (MCQs)
If the President's seat becomes vacant (such as death, resignation, or removal
from office), the Chairman of the Senate assumes the role of Acting President
until a new President is elected (30 days) through the specified constitutional
process.
If Chairman Senate is not available then Speaker of NA will act as President.

EXECUTIVE BRANCH (President, PM and Cabinet)

THE PRESIDENT
 Muslim-45 years-Eligible to be elected as member of NA
 Procedure to elect president
 Electoral college
 Duration 5 years
  Impeachment
 President office become vacant

AUTHORITIES OF PRESIDENT
 Head of the state
 Administrative powers
 Establishment of cabinet
 Appointing other ministers
 Appointments
 Law making powers
 Judicial powers

THE PRIME MINISTER

 Age: 25
 Eligible for MNA
 Leader of the cabinet
 Chief executive
 Coordination between President and Cabinet
 Vote of no confidence

LEGISLATIVE BRANCH (Senate and NA)

SENATE
 It is continuous and could not be dissolved
 Total Seats 104 / (reduced to 96 in next tenure)
 18th ...VS... 25th amendment
 6 years term
 Half of the members retired after 03 years
  All provinces have equal representation/23 seats from each
province
 Electoral college
 Election of senate is under single transferable vote/STV

Seats distribution in Senate

Provinces General Technocrats/Ulema Women Non- Total
Muslims
Punjab 14 4 4 1 23

Sindh 14 4 4 1 23

KPK 14 4 4 1 23
Balochistan 14 4 4 1 23
Federal 2 1 1 - 4
Capital
FATA 8 - - - 8
Total 66 17 17 4 104

NATIONAL ASSEMBLY
 Total seats: 342 (reduce to 336 in next tenure)
 Seats distribution is on the basis of population
 Term: 5 years
 Age: 25 minimum
 Headed by speaker and Deputy speaker
 Current seats allocation
Provinces General Women Non-Muslims Total
Punjab 148 35 -- 183
Sindh 61 14 -- 75
KPK 35 8 -- 43
Balochistan 14 3 -- 17
Federal 02 -- -- 02
Capital
FATA 12 -- -- 12
Total 272 60 10 342
Seats allocation in new session
Provinces General Women Non-Muslims Total
Punjab 141 32 -- 173
Sindh 61 14 -- 75
KPK 45 10 -- 55
Balochistan 16 4 -- 20
Federal 03 -- -- 03
Capital
FATA -- -- -- --
Total 266 60 10 336
Electoral College in Pakistan has the following functions:
1. Chooses the President of Pakistan through an indirect
election.
2. Comprises the Senate, National Assembly of Pakistan, and the
Provincial Assemblies of the four provinces.
3. Senators = term of six years.
4. The votes of the members of the Senate and National
Assembly are counted as single votes.

Power of Senate & N.A:

Common Powers of both
 Legislative authority: lawmaking alongside the NA.
 Can review, amend, or reject bills passed by NA.
 Equal Provincial representation
 Investigation and inquiry
 Constitutional amendments with a two-thirds majority.
 Budget approval
 Electoral college: Election of the President of Pakistan.
Powers held with NA only
Equal legislature powers subject to two powers which are
exclusive right of NA (MNA). NA is more powerful in these two
aspects than Senate.
a. Power to elect & remove PM
b. Money Bills

Article 89 outlines the conditions and limitations under which the

President can exercise legislative powers through the issuance of
ordinances in Pakistan.

Article 45 to 47 relates to Judicial powers of President

Article 95 relates to vote of no confidence

 Constitution

Executive Legislative Judicial

PM Senate (Age 30 y) i. Supreme Court

6 years
ii. High Court
Upper House
iii. District Court
NA
5 years
Lower House

Supreme Court related provisions:

 Establishment and jurisdiction of courts
Article 175: Establishment and Jurisdiction of the Supreme
Court of Pakistan as the apex court in the country and outlines
its jurisdiction, composition, and powers.

 Original jurisdiction of Supreme Court

Article 184: Supreme Court is original jurisdiction in matters
of public importance involving fundamental rights. It
empowers the Supreme Court to enforce fundamental rights
through the issuance of writs.
 Appellate jurisdiction of Supreme Court
Article 185: Supreme Court is appellate jurisdiction.
"The Supreme Court shall have the power to hear and
determine appeals from judgments, decrees, or orders of the
High Courts and the Federal Shariat Court."
 Advisory jurisdiction of Supreme Court
Article 186-A: Advisory jurisdiction of the Supreme Court.
"If, at any time, the President or the Governor of a Province
considers it necessary to obtain the opinion of the Supreme
Court on any question of law, he may refer the question to the
Court for consideration, and the Court shall, after hearing the
parties, deliver its opinion thereon."
 Decision of the Supreme Court is binding on other courts
Article 189: Binding nature of Supreme Court decisions.
"Any decision of the Supreme Court shall, to the extent that it
decides a question of law or interprets a provision of the
Constitution, be binding on all other courts in Pakistan."

Federal Shariat courts (1980)

 Laws accounting to Islamic share
 Functions
- Checks if laws follow Islamic principles
- Hears appeals
- Gives legal opinions
- Reviews decisions
- Ensures laws align with Islam
General provision relating to the judicature: (175 to 189)
 Contempt of court (r/w contempt of court ordinance 2003)
 Supreme judicial council
Supreme Judicial Council (SJC) is a constitutional body in Pakistan
responsible for investigating allegations of misconduct or incapacity
against judges of the superior courts

PROVINCIAL LEVEL
Provincial government
1. Chief Minister (Chief executive of Province)
2. Provincial Ministers
3. Executive authority of the province shall exercise in the name
of the Governor by Provincial government
Governor
 Nominal head of province
 Appointment
 Executive powers
 Judicial powers
 Duties during emergency
 Law making powers
 Dissolution of provincial Assembly
Chief minister
 Administrative head of province
 The provincial cabinet

Powers of chief minister and cabinet

 Appointment of ministers
 Administrative powers
 Financial powers
Legislative
 Provincial assemblies
 Seats
 Punjab: 371
 Sindh: 168
 KPK: 145
 Balochistan: 65

PROVINCIAL JUDICIARY
 HIGH COURT
 DISTRICT COURT
 REVENUE COURT
High Court
 Interpretation of Law
 Public Interest cases
 Administrative accountability- citizens

 Jurisdiction of the High Court

 Decision of the High Court is binding on sub ordinate courts
 High Court shall supervise and control all courts subordinate to it

District Court

Revenue Court
Local Government system
For devolution of power
 District council
 Tehsil council
 Union Council

 Nazim/Meir
 Naib nazim/ deputy Meir
 Counselor

Central and provincial combined organizations

 Planning commission of Pakistan (1953, 1960 separate entity)
Sets economic goals and develops plans to achieve them.

 Islamic ideological council (1962, 1974 renamed)

Advises on Islamic principles and ensures laws align with
Islamic teachings.

 Council of common interest (1971)

A forum for federal and provincial governments to discuss and
resolve issues of common interest.

 National economic council (1960, 1974 renamed)

Advises on economic policies and strategies for national
development.
Constitution 26-05-24

TYPES OF WRITS
Whenever violation of fundamental right (article 8-28) happens, writ can
be filed under articles:
u/a 199 in High Court
u/a 184 in Supreme Court
Writ can also be filed against a private person. Person who files the writ is called
petitioner and who’s against is filed is called respondent.

Writ of Prohibition: (To prevent)

A Writ of Prohibition can be issued to prevent a government official or authority from

performing an act that would violate the fundamental rights of a citizen, under the
constitution.

Writ of Mandamus: (mandatory, to do this act)

A writ issued by a higher court to compel a lower court, government official, or public
authority to perform a specific duty that they are legally obligated to perform.

Writ of Certiorari: (to declare void, illegal)

A writ issued by a higher court to review the decision of a lower court or tribunal to
determine whether it has exceeded its jurisdiction or made an error of law.

Writ of Quo-Warranto: (By what authority you are holding the office)

A writ issued to inquire into the legality of the claim of a person or authority to hold
an office or position of public importance.

Writ of Habeas Corpus: (illegal confinement)

A writ used to bring a person before a court or judge to determine whether their
detention or imprisonment is lawful, and to secure their release if it is found to be
unlawful.
Interim constitution: adaptation of government of Indian Act, 1935

 Under the provisions of the Indian independence act, 1947, the government of
Indian act, 1935 became with certain adaptations, the working constitution of
Pakistan.
 The Pakistan order 1947, established the federation of Pakistan which included
the four provinces of
East Bengal, West Punjab, Sindh, NWFP, Baluchistan
 Karachi as capital

 Role of Governor General (Powers of GG)

 Appoint and dismiss PM and Federal Ministers, Military officers, Provincial

Governors, Judges, High Officials
 Head of the executive branch
 Commander-in-Chief of the armed forces
 In-charge of Federal List
 Can suspend provincial govt and rules by decree
 Could override decisions of the council of ministers
 Diplomatic and emergency powers, including the power to negotiate
treaties and agreements
 Dispute resolution
 Could veto laws passed by the legislature
 Could dissolve the legislature and call elections
 Grant assent to bills passed by the legislature

 Role of Constituent Assembly

 It act as a Federal Legislation

 To draft the constitution
 To make recommendations on the matters referred to it by the Governor-
General
 To have the power to amend or modify the Act itself
The Assembly was also subject to the veto power of the Governor-General. Despite these
limitations, the Constituent Assembly played a significant role in the eventual formation
of the Constitution of Pakistan in 1956.

Constitutional and Political History

  Quaid-e- Azam was the First Governor General (GG) and the first President of
Constituent Assembly (CA)

 Liaquat Ali khan was the first PM .

 After death of Quaid in 1948, second GG was Khawaja Nazimuddin and Maulvi
Tamizuddin was second president of CA.

Basic principles and other important committees

 The constituent assembly setup several committees and sub committees,

amongst these was the basic principles committee.

 It was appointed on 12th march, 1949 when the objective resolution was passed
by the constituent assembly.

 Its task was to report in accordance with the objective resolution on the main
principles of future constitutions.

BASIC PRINCIPLE COMMITTEE

The basic principal committee consists of 24 members and setup three sub
committees;

i. Sub committees on federal and provincial constitutions and distribution of

powers.

ii. Sub committees on franchise

iii. Sub committees on judiciary

iv. Another sub committee dealing with Fundamental Rights of the Citizens of
Pakistan & Matters Relating to Minorities
Basic principal committee submitted its interim report on 07 th September, 1950
and its final report in December, 1952.
(The interim report of the Basic Principal committee had to be withdrawn because it
was undemocratic and unpopular. Few members were added in the CA, to represent
communities, such as Christians. The discussion on minorities took a long time because
of the complexity of its task and the time taken in obtaining the opinions of minority
communities. Minority community demanded that the Hindus should be given
representation in legislature not only according to their numbers but also some
weightage should be given to them. In East Bengal Hindus were 23% of entire
population, it was demanded that they should get 41% of seats in east Bengal
legislature.)

OBJECTIVE RESOLUTION 1949:

The first significant step towards the framing of a constitution was taken by the CA in
March 1949 when it passed a resolution on the “Aims and Objectives of the
Constitution”, popularly known as Objective Resolution.
 Liaqat Ali Khan moved the resolution and resolution was adopted on 12 th
March, 1949.
 Aims and objectives of the Constitution
i. To create a democratic polity based on the principles of Islam.
ii. To ensure the welfare and well-being of the people.
iii. Adequate provision shall be made for the minorities freely to profess and practice
their religions and develop their cultures
iv. To ensure social and economic justice.
v. To provide for the basic rights and fundamental freedoms of citizens.
vi. To create a federal system with autonomy for the provinces.

 It laid the foundation of the Constitution and indicated the broad outlines of its
structure.
 Initially, Objectives Resolution was part of preamble of the Constitution of
Pakistan and later on incorporated in Article 2A of the Constitution
 Salient features of the Objective Resolution
i. Declaration of Pakistan as an Islamic State
ii. Sovereignty belongs to Allah (God)
iii. Supremacy of the Constitution
iv. Protection of fundamental rights and freedoms
v. Islamic principles as the basis for legislation
vi. Democratic polity

Reaction by Non-Muslims
• Prem Hari Barma proposed that the Motion be circulated for eliciting public
opinion thereon.
• Sris Chandra Chattopadhyaya vehemently supported it.
• Liaquat Ali Khan opposed the motion which was put to vote and defeated by 21
vs 10.
• After voting on amendment, the resolution was adopted on 12 March 1949
Conclusion:
 Objective Resolution have sown the seeds of suspicion among the minorities
against the majority (Muslims). It cannot be denied that some of the proposed
amendments were quite reasonable and moderate and their point of view ought
to have been accommodated in the larger national interest.

 After the death of Jinnah, Liaquat chose to remain PM which meant that the
Cabinet form of government was to become effective. Khawaja Nazimuddin
became GG. During that period, the position of the GG was the same, he became
the constitutional figurehead, while real power was exercised by the PM and his
cabinet. This harmony continued until the death of Liaquat on 16 Oct, 1951.
 After the assassination of Liaquat Ali Khan, Khawaja Nazimuddin became 2nd PM
leaving the post of GG vacant. Then, Ghulam Muhammad (Finance Minister
earlier) became 3rd Governor General.
 Second draft of the Basic Principles Committee, which was presented by PM
Khawaja Nazimuddin in 1952, came under severe criticism, especially from Punjab.
 Khawaja Nazimuddin imposed martial law in Lahore in 1953 (by Major General
Azam) to quell political unrest
 Dismissed by Governor-General Ghulam Muhammad in 1953. On 17 Apr 1953,
Khawaja Nazimuddin was summoned by Ghulam Muhammad along with his
cabinet and ordered to resign. When Khawaja Nazimuddin declined, he was
dismissed along with his cabinet.
 On the dismissal of Khawaja Nazimuddin, Bogra became 3rd PM.

 BOGRA FORMULA:
It was presented to CA in 7 Oct 1953 and adopted by CA on 6 Oct 1954.
Bogra recommended to make a bicameral system instead of unicameral. Proposed
a formula for the distribution of powers between the center and provinces.

Lower House Upper House Total

East Pakistan 165 10 175
West 135 10*4= 40 175
Pakistan

 When Khawaja was removed from PM office by Ghulam Muhammad (GG), then
Tamizuddin (President of CA) had proposed amendment in Sec 10 of Indian Act,
1935 (Sec 58 (2) (b) of present constitution) related to powers of GG (to dismiss
ministers)
 CA did this to prevent the repetition of acts such as dismissal of Khawaja cabinet in
Apr 1953.
 It could be described as an important step towards the growth of parliamentary
democracy in Pakistan, but the amendment was made in such haste that it could
be termed a “constitutional coup”.
 Ghulam Muhammad (GG) dissolved CA on 24 Oct 1954 and has announced a
Proclamation of state of emergency. He did not specified any provisions of law
under which the power is exercised to proclaim state of emergency.
 Ghulam Muhammad instructed M. Bogra (PM), to form a cabinet without the
benefit of Parliament. Cabinet consisted of Gen. Iskandar Mirza, Dr. Khan Sahib,
Gen. M. Ayub Khan.

MAULVI TAMIZUDDIN KHAN’S CASE (PLD 1955 FC 240)

PLD = Pakistan Legal Decision Year = 1955 FC = Federal Cout Pg. No. = 240

 Maulvi Tamizuddin Khan, being the president of the Constituent Assembly

challenged the proclamation of the Governor General in the chief court of Sindh
as unconstitutional, illegal, ultra vires without jurisdiction and inoperative.
 He asked for writ of mandamus (to restrain the government from interfering with
the exercise of functions of the President of CA) and a writ of quo warranto (to
determine the validity of certain appointment made by the Govt to fill the
cabinet)

JUDGMENT CHIEF COURT OF SINDH

 The full bench of chief court of Sindh decided unanimously in favor of MTK and
allowed his writ petition (discuss grounds of acceptance)
 On the power of GG to dissolve the CA, it was held that the Indian Independence
Act 1935 did not contains any express provision for the dissolution of the
Assembly, and therefore, the GG had no power of any kind to dissolve the CA. It
was a sovereign body created for a special purpose and it was to function till that
purpose was accomplished. The right to dissolve the legislature, it was observed,
had ceased to be a prerogative in England and it was difficult to hold that the
prerogative which had ceased in England was revived in Pakistan after 1947.
 The Chief Court of Sindh, thus, issued quo warranto to the ministers in the new
Cabinet prohibiting them from exercising the office of minister and the writ of
mandamus resorting MTK to the office as President of CA was issued restraining
respondents from interfering with his duties and from obstructing him in the
exercise of his functions.
 FEDERAL COURT JUDGMENT
 An appeal was filed by government in FC.
 By a majority of 4 to 1, the federal court, decided on 21 st March, 1955 in favor of
Govt and rejected the MTK’s petition challenging the proclamation of GG. (discuss
grounds of rejection)
 Arguments by respondent (MTK)
 The proclamation of emergency and the appointment of the reconstituted
Council of Ministers were:
a) Unconstitutional
b) Illegal,
c) Inoperative and
d) Void
 There is no express provision for the dissolution of assembly
 Pakistan is “Independent Dominion” hence the Constituent Assembly is
sovereign.
 The Legislature of the new Dominion have full power to make laws for
that Dominion.
 Governor-General is not part of Legislature.
 The assent of the Governor-General can only be required through creation
of the statute.
 Sub-Section (3) of section 6 of the act of 1935, must be read with section
5 which says that the governor-general represents the crown only for the
purposes of the Government.
 Rule 62 of the “Rules of Procedure of the Constituent Assembly”
published in the Official Gazette of Pakistan was passed on the 24 th
February, 1948, dispensed with the Governor-General’s assent.
“When a bill is passed by the Assembly a copy thereof shall be signed by
the president.”
 Arguments Advanced by the Appellants
 The grounds mentioned in the proclamation for the dissolution of
assembly were true.
 Section 223-A, which empowered the High Courts to issue writs had not
received the assent of the Governor-General.
 It was not law, therefore the Courts had no jurisdiction to issue writs.
  The Governor-General was competent to dissolve the Constituent
Assembly.
 Conclusions arrived at by the Court and the Reasons
 Government is the responsibility of the executive, if there ensues a conflict
between legislature and the executive, if the assembly does not support the
executive, the Government must take it to mean that it had ceased to be
the representative of the House.
 The Crown is a constituent part of legislature.
 Governor-General represents the Crown hence he is also a part of
legislature
 The Governor-General have full power to assent to a law U/S 6(3).
 The provisions relating to statutes do not create a new right but confirm an
existing right.
 It provides the manner in which that right is to be exercised.
 The administration of the constitutional laws being part of Government,
hence it can be extended to the making of Laws.
 The rule 62 of the “Rules of Procedure of the Constituent Assembly” can
become law so long as it is not in direct conflict with the constitutional
provisions
 A mere Rule can not amend the Constitutional Act any more than a
resolution.
 “Section 223-A of the Government of India Act 1935, under which Chief
Court assumed jurisdiction to issue the writs did not receive such assent, it
is not yet law, and therefore, that court had no jurisdiction to issue writs”

 The most significant point in FC’s judgement was that it did not go into the
question of whether the CA was rightly dissolved by the GG. It reversed the
judgement of Sindh High Court on technical grounds namely, that Section 223-A of
Indian Act, 1935 as adapted in Pakistan by virtue of which Sindh Court issued the
writ in favor of MTK was ‘not yet a law’ because it had not received the assent of
GG. The court held that the enactments of the CA, whether it functioned as the
central legislature or as the constitution-making body, required the assent of the
GG and since Section 223-A of Govt of India Act had not received such assent, it
was not yet law, and, therefore, the Sindh Court had no power to issue the writs.
 The majority in the FC, interpreting the provision of the Indian Independence Act,
1947, concerning assent by the GG, held that it made the GG a constituent part of
the legislature in as much as the right to give assent necessarily included in it the
right to withhold assent. Every bill must, therefore, be presented to him to
 provide him an occasion to exercise that right and, unless a bill was so not
function and the proposed legislation become law.

USIF PATEL’S CASE “USIF Patel ...VS... The Crown” (PLD 1955 FC
387)
Six days after the MTK judgment the GG promulgated Emergency Powers Ordinance IX
of 1955 and assumed powers to:
i. Make provisions for framing the constitution of Pakistan.
ii. Make provisions to constitute province of West Pakistan.
iii. Validate laws which had been passed by CA but had not received the assent of
GG.
iv. Authenticate the central budget.
v. Name east Bengal as east Pakistan.
 Moreover, GG added Section 92-A to the Govt of Indian Act 1935
Section 92-A of the Government of India Act, 1935, empowered the Governor-
General (GG) to make ordinances for the federal legislature and constitution,
which effectively gave the GG the power to unilaterally amend the constitution
and legislative framework.
 Governor of Sindh enacted a law called The Sindh control of Goondas Act,
1952.
 Background
 Appellants (Usif Patel) were proceeded against under Sindh Control of
Goondas Act
 The appellants were declared to be Goondas
 They were directed to furnish heavy security
 Appellants for their failure to give security were directed to be confined
to the prison
 Grounds of Appeal before the Chief Court of Sindh:
 The appeal was made u/s 491of CPC, 1898
 The appellants prayed that their detention was wrongful and they be set
at liberty.
 Power of making constitution or ordinance lies with the CA.
  Emergency order issued by GG was illegal, hence Sec-92-A is illegal and
the Goondas Act under Which Usif was arrested is also illegal. Hence, he
should be set free.

 Decision of the Chief Court of Sindh:

 The contentions of the appellant were repelled by the Chief court.
 And they were set free.
 Contention Before the Federal Court
 The validity of section 92 – A was challenged. This was the natural
corollary of Maulvi Tamizduddin Khan’s Case.

FEDERAL COURT JUDGMENT

 Power to make provisions to the constitution of the country could not be
exercised by the GG by means of Ordinance
 Held Section of the Ordinance as Ultra vires
 Further, it was held that legislation could only be passed by CA though with the
assent of GG.
 The said judgment presented the country with a constitutional crisis of greater
magnitude then when the GG had dissolved the CA
Repercussions of Usif Patel case:
 No federal legislature in existence to validate laws
Doctrine of Law of necessity:
 Validate the laws listed in the schedule of emergency power ordinance 1955 till
the arrival of new govt or new CA.

Second Constituent Assembly And Constitution of 1956:

 The federal court’s decision in the reference by the GG cleared the way for
summoning the second CA.
 The federal court unanimously declared that the task of framing the
constitution had to be performed by CA.
Federal Court decision and Second Constituent Assembly
 Ghulam Muhammad, Muhammad Ali Bogra (3rd PM) and Cabinet
 Resignation of Ghulam Muhammad and entry of Major General Sikandar Mirza
as the 4th and the last GG.
 2nd Constituent Assembly Federal Court
is replaced by
1. General Sikandar Mirza
Supreme Court
2. General Ayub Khan
 Chaudary Muhammad Ali as the 4th PM of Pakistan
 First Constitution on 23 March 1956 (given by 2nd CA)
 Parliamentary Constitution
 Governor General seat was abolished
 Major General Sikandar Mirza—the First President after the constitution, 1956
 Chaudary Muhammad Ali as the 4th PM of Pakistan
 Two languages
 234 articles, 13 parts, 6 schedules

CHALLENGES BEFORE THE CONSTITUENT ASSEMBLY AND CAUSE OF

DELAY IN FRAMING CONSTITUTION
o Form of government (Parliamentary or Presidential)
o Controversy of provincial autonomy and strong center
(East Pak demanded maximum provincial autonomy & West Pak desired strong
center)
o Units and federal divisions of powers
(For the distribution of subjects between the center and the provinces, three
lists of subject had been drawn up.)
o Distribution of seats of federal legislature
(Bogra formula was not implemented while making the constitution)
o Distrust between East and west Pakistan and issue of regionalism and
provincialism
o Amendments in PARODA Act and Government of Indian ACT 1935
 (Revising and adapting British-era laws to suit Pakistan's needs)
o Political and financial issues
o Military intervention

o Dissolution of First Constitutional Assembly

o Role of Judiciary and Doctrine of necessity (Tamizuddin case, Usif patel case)
o Administrative issues of Pakistan
o Objective resolution (minorities rights)
o Murder of Liaquat Ali Khan
o Role of religion
o Right of minorities (23% minorities were neglected)
o National Language (Bengali or Urdu or both)
o Franchise/Suffrage issue (Right to vote)
1. Universal suffrage: Everyone is allowed to vote.
2. Restricted suffrage: Specific class is allowed to vote.
3. Separate Electorates and Joint Electorates: In Separate electorate, Muslim
can only vote Muslim candidates and non-Muslim can only vote non-Muslim
candidates. While in joint electorate system, 18 and above can vote to anyone
irrespective of religion.
o Status of princely states
o Hostile neighbor and Kashmir war
President Sikandar Mirza had publicly voted his conviction that religion and
politics ought to be kept quite separate, and that some sort ‘controlled’
democracy and executive appointed for a fixed term and not dependent for its
existence on a shifting and uncertain parliamentary majority was the best
form of polity to aim at.
 First Martial law (7th Oct 1958)
o On October 07, 1958, President Iskander Mirza imposed Martial Law in the
country and abrogated the Constitution
o General Muhammad Ayub Khan as the Chief Martial Law Administrator
o Twenty days later on October 27, 1958, Ayub Khan overthrew Mirza and
assumed the office of the President as well.
o Title “Field Martial” is given to General Ayub by President General Ayub
o After 3 days, 10 Oct 1958, the Laws (Continuation in Force) Order was
promulgated with a view to bringing about a new legal order.
o It restored the jurisdiction of all courts including SC and HC.

Dosso Case- Conviction (PLD 1958 SC 533)

under FCR-LHC decision and SC decision

o Facts of The Case

 Proclamation of October 7,1958.
 Annulment of The Constitution.
 Dismissal of The Assemblies.
 Dissolution of Cabinet.
 Declaration of Martial Law.
 Promulgation by The President ---The Laws Continuance in Force Order,
1958.

o Background:
 Dosso was a commoner and charge of murder was put on him by Frontier
Crime Regulations (FCR). FCR ordered to hang him till death.
 He filed appeal in Lahore High Court (LHC) against the decision of FCR.
 LHC ordered that when we have our own constitution, then you cannot
convict under FCR rules.
  According to decision of LHC, those who implemented martial law can be
convicted.
 Ayub Khan filed writ in Supreme Court (SC) and decision was in his favor.
 Thus, Dosso was convicted.

Supreme Court Decision:

 The FCR held by the HC to be invalid on the ground that it contravened
Article 5 of the late constitution.
 SC held that Article 5 itself had now disappeared from the new legal
order and all proceedings in these cases and validity of that regulation
had been called in question have abated
 The conviction recorded and the references made to the council of elders
are good.

Basic Democracy Orders 1959:

o A year later on October 27, 1959, Ayub Khan introduced the Basic Democracies
Order creating 80,000 BD member who had to serve as the electoral college
o Later through this electoral college, Ayub got elected as President (75283 votes,
95.6%) in a referendum on February 14 1960.
o Ayub was not only elected as president for 5 years but also got a mandate to
give Pakistan a constitution of his own choice.

Constitution Commission (17 Feb 1960) and its Report:

o After taking over President Ayub Khan set up a constitutional commission under
justice Shahab-ud-Din to suggest recommendations for the new constitution of
the country.
o The commission after through and lengthy discussion submitted its report on
6th March 1961.
o The report was examined by president.
o In its report the commission highlighted the reasons of the failure of
parliamentary democracy in Pakistan: -
 It fixed the responsibility for the debacle of democracy on the lack of
dedicated leadership.
  Absence of well-organized political parties.
 And the self-aggrandizement of the greedy politicians.
o In the view of the recommendation of the commission a new constitution was
not framed by a constitutional body which was elected nor did it enjoy popular
support.
o The constitution was thrust upon the people in an undemocratic and
authoritarian manner.

Second Constitution of Pak on 8 June 1962

o On the promulgation of the 1962 constitution, three and a half year martial law
era of Ayub came to an end and a civilian constitutional govt under Ayub
replaced his previous political regime.
o Under Article 225 of the 1962 Constitution, the Presidential Proclamation made
on 7 Oct 1958, imposing martial law throughout the country was revoked with
effect from the convening day.
o The Laws (Continuation in Force) Order, 1958 and certain other President’s
Orders were also replaced.
o Presidential Form of Government
o Centralized Federal System
o Unicameral Central Legislature
o Governors and Provincial Legislatures
o Judiciay
o Islamic Character
o Title of the State will be Islamic Republic of Pakistan.
o A Powerful President who was responsible for administration and affairs of the
state.
o National Assembly was given the power to charge the president, however it was
difficult to achieve.
o President could dissolve the NA but in that case he must seek re-election.
o President could issue Ordinances. He could also announce State of Emergency
in the country.
o NA had all the powers of law making but law was to be finally ratified by the
president. President could sign, reject or return the bill.
o Provincial governments were directly under the control of President. There was
a strong center with a Powerful President. He had enough powers to manage
provincial affairs. In case of emergency powers Central government could take
direct control of the province.

Criticism
o Ayub Khan gave the second Constitution to the country Discarding the
parliamentary system, the Constitution adopted the presidential form of
government but without the system of checks and balances which is enshrined
in democratic Presidential systems in other countries.
o Moreover, the Constitution gave over whelming powers to the President who
dominated the entire constitutional system.

1965 Election January 2, 1965

o First indirect election in Pakistan.
o Ayub Khan Vs Fatima Jinnah
o Ayub Khan was the candidate for the Convention Muslim League and Fatima
Jinnah was the candidate for the Combined Opposition Parties.
o Ayub Khan won the election by receiving 64% of the vote.
o The election was controversial and many believed that Ayub Khan rigged the
election.

1965 Indo-Pak
o The number of clashes between the Indian and Pakistani forces on the cease-
fire line in Kashmir greatly increased during 1964, and increased the fang in the
first half of 1965.
o In April and May 1965, there were serious skirmished between the armed
forces of Indian and Pakistan in the region known as the Rann of Kutch.
o Pakistan’s armed forces gave a good account of themselves which might have
given rise to misplaced confidence in the mind of the military leadership that it
could take on Indian military.
o Finally, a serious crisis in Indo-Pakistani relations precipitated on 5 Aug 1965
when freedom fighters from Azad Kashmir began entering Indian occupied
Kashmir in an unsuccessful attempt to foment revolt.
o Further parties of freedom fighters entered on 18 Aug. India protested against
what it called ‘infiltration’, but such protestations were rejected by Pakistan.
o On 16 Aug, Indian troops crossed the border and occupied Pakistani border
posts.
o In early Sept, Pakistani forces advanced into the Indian Sector, capturing a key
post on 5 Sept.
o On the same day, the Indian Defense Ministry noised a Pakistani aircraft of
attacking an Indian to force ground unit near Amritsar, without causing any
damage.
o On the following day, Indian troops launched an offensive across the Punjab
frontier into West Pakistan.
o Indian Defense Minister claimed as justification for crossing international
borders that the Indian attack had been launched in order to pre-empt an
attack by Pakistan on Indian Punjab.
o Z.A. Bhutto (Foreign Minister) and Aziz Ahmad (Foreign Secretary) assured
Ayub and Commander-in-Chief of Army that India would not cross international
borders to attack Pakistan.
o They had even suppressed a message from the Pakistani High Commission in
New Delhi sent through the Turkish Embassy to the Foreign Office in Islamabad,
that India was planning to launch an attack on Pakistani territory on 6 Sept.
o Ayub was woken up at 4 o’ clock in the morning on 6 Sept and given the news
of the Indian advanced towards Lahore.
o He telephoned General Musa, Commander-in-Chief of Pakistan Army, who said
he had also heard the news but was waiting for confirmation.
o All this badly exposed the military genius of Ayub and his army chief.
o In a broadcast on 6 Sept, Ayub declared “We are at war”, and proclaimed a
state of emergency, although an Indian govt spokesman commented: “India is
 not at war with Pakistan or the Pakistani people. India’s operations are
intended to destroy Pakistan military bases from where they attack India”
o On 11 Sept, the Khem Karan counter-offensive ran around and with that
collapsed Pakistan’s entire military strategy.
o For Pakistan, the war was over.
o Fighting continued on all fronts until 23 Sept.
o The UN Security Council adopted a resolution which demanded cease-fire
should take place on Wednesday, 22 Sept 1965 at 0700 hours GMT and calls
upon both govt to issue orders for a cease-fire at that moment and a
subsequent withdrawal of all armed personnel back to the positions held by
them before 5 Aug 1965.
o Entry of PPP- Z.A Bhutto
o Ayub's Constitution lasted as long as he survived in office.
o With his departure his system was also folded.

Second Martial Law (25 March 1969)

o In fact, Ayub himself announced the imposition of Martial Law on March 25,
1969.
o General Yahya Khan -3rd President
o New Chief Martial Law Administrator General Yahya Khan, soon after the taking-
over announced that he would hold elections for the constituent assembly at an
appropriate time.
o Before the elections that were held in December 1970, General Yahya dissolved
One Unit and restored the former provinces along with the creation of the
Province of Baluchistan in the western part of the country.
o He also announced the Legal Framework Order (LFO) 1970.
o The LFO brought an end to parity between East and West Pakistan, accepting
the numerical majority of the eastern wing.
o It also gave up the indirect elections as had been introduced by Ayub Khan.
o The 1970 elections, thus, were the first general elections in the country to be
held on the basis of adult franchise.
o East Pakistan=Awami League got 151 seats, while West Pakistan=PPP got 81
seats.
o Awami League (AL) secured the mandate of East Pakistan
o Pakistan People's Party (PPP) gained a mandate in Punjab and Sindh
o AL won majority general seats over PPP
o Under pressure by the PPP, President Yahya postponed the National Assembly
session so government was not transferred to the Awami League and resulted
in destruction of national unity
o The election results that brought Sheikh Mujib-ur -Rehman's provincial
autonomist Awami League as the majority party in the National Assembly could
not be reconciled by the military regime.

o Sheikh Mujeeb ur Rehman six points

1. Through a federal parliamentary system based on direct adult franchise
representation of provinces would be based on population in the
federal legislature.
2. The federal government will be restricted only to foreign affairs,
defense and currency. And even concerning foreign affairs, the subject
of economic issues would rest with the provinces.
3. There would be either two different currencies for the two wings or a
single one with a separate Federal Reserve System for each wing.
4. The power of implementing and collecting taxes would rest with the
provinces. The federal government will be given enough shares to fulfill
its tasks of foreign affairs and defense.
5. There would be separate accounts of foreign exchange earnings for
each wing.
6. East Pakistan would be entitled to have militia or paramilitary force
solely under its jurisdiction.
o Awami League launched a non-co-operation movement
o Military intervention in East Pak and Operation Searchlight
o The failure of dialogue between the regime, the Awami League and the Pakistan
People's Party which had emerged as the majority party in two provinces of
 West Pakistan - the Punjab and Sindh- paved the way for a crisis which the
military regime tried to resolve by force.
o East Pakistan was subjected to military action on March 25, 1971
o The military regime's failure in crisis management led to its intensification and
culminated in the separation of East Pakistan on December 16, 1971.

Indo-Pak war and Creation of Bangladesh

o Indian troops crossed the borders into East Pakistan in the first week of
November.
o On 26 Nov, Dr. Malik left for Islamabad to advise the President to avert the war,
either by seeking UN intervention or by making political settlement with AL.
o He knew that in case of an all-out war, East Pakistan would be lost.
o He returned to Dhaka on 1 Dec and expressed dissatisfaction about his talks
with Yahya.
o Although, Jessore had been captured by the Indian Army on 6 Dec, Yahya was
not conveyed this news till 8 Dec.
o Moreover, the unrealistic attitude adopted by Pakistan’s representative at the
Security Council was a indication to Dr. Malik that the correct mitt position of
East Pakistan was not been communicated to Yahya.
o As the situation became critical, both Niazi and Dr. Malik badgered Islamabad
for the promised help. Gen Niazi even west to the US Council in Dhaka to as “if
US military assistance was to be provided”.
o Yahya’s response was precise and self-explanatory. He replied “we are praying
for you”.
o Yahya did not make any serious effort for political settlement before the war
although he knew that Pakistan’s position was weaker and India had made
preparation for inflicting a military defeat Pakistan.
o On 9 and 10 December, Gen Niazi messages to Chief of General Staff that a
regrouping of troops and true adjustment of battle positions was not possible.
He stated that air bridges and heavy weapons was sent damaged. He requested
for reinforcement by airborne troops to protect Dhaka.
o Gen Niazi’s message clearly stated that the situation was critical and the
resistance of the Pakistan army was likely to last only a few more days.
o On 10 Dec, Dr. Malik sent another message to Yahya requesting him to arrange
an immediate cease-fire and negotiat a political settlement.
o In response, Yahya authorized the Governor of East Pak decisions as required by
the East-West Pakistan and said that he would approve all measures taken by
him.
o AT the same time, Yahya directed Gen Niazi to follow decisions taken by the
Governor.
o After the receipt of this message, Dr. Malik contacted the Assistant Secretary
General of UN, and delivered a message demanding a peaceful transfer of
power to the people’s representatives though the UN after the cease-fire and
the withdrawal of the Indian Army.
o Facilities for the repatriation of Pak army and protection of non Bengali
population was also demanded.
o The message made it clear that there was no question of surrender.
o Yahya buried the message as soon as he came to know of it and an official
spokesman denied its dispatch.
o On 11 Dec, Pakistan invoked its understandings with friendly powers to come to
its assistance. Dhaka was told that help was expected from friends, which never
arrived, and the war continued.
o By 15 Dec, Indian forces had reached the outskirts of Dhaka.
o On 14 Dec, the Governor’s house was rocketed by Indian planes as a result of
which the Governor and his cabinet resigned and sought protection from the
Red Cross.
o Gen Niazi again met the American Counsil-General and requested him to
arrange for an immediate cease-fire.
o On 16 Dec, the instrument of surrender was signed by Gen Niazi and Gen Jagjit
Singh Aurora (Commander Chief, India) and Dhaka fell.
o Mujib-ur-Rehman became PM and Justice Abu Sayeed became President.
o On December 20, 1971, General Yahya Khan resigned and handed power to
the leader of the Pakistan People's Party, Zulfikar Ali Bhutto who took charge
as President as well as Chief Martial Law Administrator.
o Mujib-ur-Rehman was set free on 8 Jan 1972.
o Key industries, including banking, steel, and basic industries, were nationalized,
leading to significant shifts in the economic landscape and relations with private
enterprises.
o Economic Reforms order, 1972 on 3 Jan 1972.
o 11 Mar 1972, Land Reforms Regulation restricted individual land holdings
o Bhutto lifted Martial Law in 21 April 1972.
o He got the approval of the Opposition for his interim Constitution to govern the
country as long as the permanent Constitution was not made.
o National Assembly approved a temporary Constitution, which was imposed on
April 21, 1972.
o Bhutto was sworn in as President under the Interim Constitution.

Constitution Making:
o Constitutional Committee comprising National Assembly (NA) members from all
parties was set up in April 1972.
o Law Minister was the Chairman of this Committee.
o All parties agreed on the future political system in October 1972.
o The Committee reported on December 31, 1972. After long deliberations and
compromises final draft was approved commonly on April 10, 1973.
o Zulfikar Ali Bhutto took the oath of PM (14 Aug 1973 to 05 Jul 1977) according
to 1970 elections before new constitution was officially declared.

3rd Constitution of Pak

o The new Constitution was imposed on August 14, 1973.
o Bicameral constitution, Parliamentary system
o The Constitution functioned since then with two gaps. It remained operational
during following periods:
 i. 1973-77: Operational
ii. 1977-1985: Suspended
iii. 1985-1999: Operational after changes
iv. 1999-2002: Suspended
v. 2002 onwards Operational after changes

Bhutto Downfall
o Z.A. Bhutto appointed Zia ul Haq Army chief of Staff (superseding 7 or 8
Lieutenant Generals)
o Bhutto's rule faced challenges, including allegations of authoritarianism,
economic mismanagement, and political opposition. Tensions escalated, leading
to protests and dissent against Bhutto's government.
o On 7 Jan 1977, Bhutto announced elections.
o 7 and 10 March as polling dates on NA and PA
o PNA boycotted elections scheduled on 10 march a day before stating them
rigged and unfair.
o PNA demanded Bhutto’s resignation and new elections under impartial
auspices.

Third Marshal law 1977 (Zia-ul-Haq)

o On night of 4-5 july,1977, Gen. Zia took over and kept PPP leaders under
`Protective Custody`.
o Assemblies dissolved, M.Law imposed and political activities banned.
o Constitution suspended and Laws (Continuance in Force) Order, 1977
promulgated.
o Good relationship between Bhutto and Zia but `a meeting` in Murree marred
the relationship
o Bhutto and others were released on 29 Jul 1977
o Elections date was announced as 18 October.
o Bhutto launched election campaign of PPP and toured Multan, Lahore, Karachi
and Peshawar.
o Bhutto further angered military junta in his hateful speeches and Mohammad
Ahmed Khan (Ahmed Raza`s father) case added fuel to fire
o On 3 Sep 1977, Bhutto was arrested In Ahmed Khan murder case and was
granted bail on 13 Sept 1977.
o After bail, he went to Leghari house , where he addressed party workers.
o He made an extremely hated speech against military junta, using threatening
words against Zia and his military colleagues.
o Bhutto carried away by people`s enthusiasm and response
o Bhutto was arrested again on 17 Sept, 1977 this time under martial law.
(charges of murder.)
o Military trial, in order dated 9 oct, 1977, evidence of motive on the part of
Bhutto who had been threatening Ahmad Raza on the floor of NA.
o It was clear by Feb 1978, that Zia and his colleagues in the military junts had
decided to continue their rule and avoid election on one pretext or the other.
o On 4 April, 1979, Bhutto was hanged at 2 am.

Nusrat Bhutto case PLD 1977 SC 657

Begum Nusrat Bhutto - (Petitioner) Vs. Chief of Army Staff and
Federation of Pakistan - (Respondents)

o Islamization in Zia Period (Pg. 946)

o In Feb 1979, Zia announced elections on 17 Nov 1979. This was done to fulfill
the promise made with PNA parties which were in govt.
o After execution of Bhutto in April, Zia and the PNA had separated their ways;
PNA withdrawn from government.
o Zia and his military coterie had no intentions of giving up power, after removal
of the main hurdle in their way-Bhutto.
o Zia postponed 17 Nov elections by declaring that local bodies elections would
take place first.
o 28 September 1979 local bodies elections were held on non-party basis.
o Reason: Zia did not want any party to show its strength in this election and
the people elected on non-party basis would be obliged to him. He wanted to
create a political cadre for himself.
o Local bodies elections were likely to reveal the strength and weakness of Zia’s
opponents.
o Zia indicated that the method of elections was totally un-Islamic and that there
was no concept of political parties in Islam.
o On 16 oct 1979, Zia announced postponement of elections indefinitely;
all political parties were dissolved and all political activities banned,
newspapers and journals said to be involved in anti-national activities
were closed; press censorship was imposed; the right to strike by
workers and the right to lock out by factory owners was rescinded;
criminal cases being heard in Martial Law courts could not be challenged
in civil courts; and the process of Islamization was to be speeded up.

Movement for Restoration of Democracy (MRD)

o On 6 Feb 1981, the PPP and several smaller parties who had never been or
were no longer associated with PNA, formed a group named Movement for
Restoration of Democracy (MRD) that would work both for putting an end to
Martial Law and for free holding elections in accordance with the suspended
1973 Constitution.
o Zia’s govt was in trouble for some time due to agitation in various cities.

o Plane Hijack
o Hijacking of PIA plane in March 1981 by Al-Zulfikar an organization led by one of
Bhutto’s sons, from Karachi first to Kabul and then to Damascus, deflected
people’s attention.
o The hijackers killed a young army officer while the plane was in Kabul and the
incident created reaction amongst the people against PPP once again.
 o Zia arrested a large number of people and held them under preventive
detention.

Provisional Constitution Order

o PCO was enforced in 1981, 1973 constitution was held in abeyance, while
adopting 138 articles if constitution.
o MRD agitation was undone by a speech of Indira Gandhi in the Indian
Parliament supporting the objectives of opposition in Pakistan.
o USA and other western powers impressed upon Zia the need to create a
semblance of democracy that would give him his regime some appearance of
legitimacy.
o Zia decided to workout the framework of a civilian government while
continuing as President.
o Fundamental changes were made in 1973 constitution and new order namely
Revival of the Constitution of 1973 Order 1985 (RCO) was
promulgated immediately after the election of Feb 1985.

o 8th Amendment 58 (2) (b)

o Later got incorporated in the constitution as 8th amendment (Semi Presidential)
President will dissolve the assembly within 48 hours
on the advice of PM.
Qanoon-e-Shahadat
October 1984 Replaced by President could dissolve the assembly,
but in such as event, fresh elections would have to be
held within 75 days.

Referendum Order 1984

o The 1984 referendum question posed by General Muhammad Zia-ul-Haq was:
“Whether the people of Pakistan endorse the process
initiated by General Muhammad Zia-ul-Haq, the President
of Pakistan, for bringing the laws of Pakistan in conformity
with the injunctions of Islam as laid down in the Holy
Quran and Sunnah of the Holy Prophet (PBUH) and for the
preservation of the Islamic ideology of Pakistan, for the
continuation and consolidation of that process, and for
 the smooth and orderly transfer of power to the elected
representatives of the people.”
o The referendum results claimed a 98.5% approval rate from the people, which
led to the enforcement of Sharia law in the country.
o After referendum, Zia announced elections for NA and PA on 25 Feb and 28 Feb
1985 respectively.
o Opposition parties (MRD) boycotted the elections because:
 Their demand for party based elections and restoration of 1973
Constitution in toto were not met.
o Jamat-i-Islami was only allowed but it lost miserably.
o Junejo as PM in 1985 elections

o Zia ul Haq lifted martial law on 30 Dec 1985 (8.5 years longest)
o All martial law regulations and martial law orders by CMLA and MLA cancelled.
o However, 9 martial law orders and 4 martial law regulations issued by CMLA
and specified in the schedule to MLO 107 were saved with some modifications.
o 9th amendment (not approved/rejected)
o By late 1986, relationship between Zia and Junejo was marked by increasing
suspicion and mutual distrust.
o However, countdown to the 29 May operation began in Nov 1987 with the
easing out of Sahibzada Yaqub Khan as Foreign Minister. Yaqub’s exit was
followed by an informal instruction by the PM (Junejo) that henceforth no file
from the Foreign Office would be sent to President (Zia).
o On 29 May 1988, Zia dissolved assemblies.

o Death of Zia
o Muhammad Zia-ul-Haq, the sixth president of Pakistan, died in a plane crash on
17 Aug, 1988, in Bahawalpur, Pakistan. Circumstances of his death include the
following:
 Zia-ul-Haq was on a C-130 plane that took off from Bahawalpur Airport with
29 other people on board.
 The plane crashed just two minutes into the flight, with no survivors.
  The investigation into the crash was assisted by a team from the United
States Air Force.
 The U.S. team concluded that a mechanical failure caused the crash, but the
Pakistani team concluded that an act of sabotage was more likely.

o General Elections 1988

o Elections to NA and PA were held on 16 and 19 Nov 1988.
o PPP won; Benazir became the first female prime minister of a Muslim country
on 1 Dec 1988.
o Ishaq Khan as President.
o Benazir Bhutto's party formed an alliance with the Muttahida Qaumi Movement
(MQM) and JUI (FR) to form the government.
o On 23 Oct 1989, COP handed over the Secretary of NA a note for a no-
confidence resolution against Benzair. She claimed the support of 129 to 135
MNA including 14 MQM members.

1084
o PML- Nawaz Sharif
o Discuss governments till present
o
o

CONSTITUTIONAL CASES
1. MOLVI TAMEEZUDDIN CASE: PLD 1955 FC 240
2. DOSSO CASE: PLD 1958 SC 533
3. ASMA JILLANI CASE: PLD1972 SC139
4. NUSRAT BHUTTO CASE: PLD 1977 SC 657
5. ZULFIQAR ALI BHUTTO CASE: PLD 1979 SC 53
6. ZAFAR ALI SHAH CASE: PLD 2000 SC 689
1. ASMA JILLANI CASE: PLD1972 SC139
Supreme Court held that Yahya khan is usurper and all his actions were also
declared illegal. Asma Jilani's case paved the way for the restoration of
democracy in the country.
2. NUSRAT BHUTTO CASE: PLD 1977 SC 657
On November 10, 1977 the Supreme Court unanimously validated the
imposition of martial law by Zia Ul Haq , under the doctrine of necessity
3. ZULFIQAR ALI BHUTTO CASE: PLD 1979 SC 53
Pakistan's Supreme Court rejected an appeal to lift the death sentence against
former Prime Minister Zulfikar Ali Bhutto. The court uphold Bhutto's death
sentence and conviction on charges of having ordered the murder of a political
opponent.
4. ZAFAR ALI SHAH CASE: PLD 2000 SC 689
Supreme Court validated the military takeover by Pervez Musharraf by restoring
the doctrine of necessity (Hens Kelson theory).