Amendmments 1973

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Revised Edition
November 2015
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NOVEMBER 2015
Amdments o
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Revised Edition
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Amdments o
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PILDAT is an independent, nonpartisan and notforprofit indigenous research and training institution with the
mission to
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CONTENTS
Abbreviations and Acronyms
Foreword
Profile of the Author
Introduction
First Amendment
Second Amendment
Third Amendment
Fourth Amendment
Fifth Amendment
Sixth Amendment
Seventh Amendment
Revival of Constitution 1973 Order 1985 (RCO) and Eighth Amendment
Ninth Amendment
Tenth Amendment
Eleventh Amendment
Twelfth Amendment
Thirteenth Amendment
Fourteenth Amendment
Fifteenth Amendment
Sixteenth Amendment
Legal Framework Order (LFO) and Seventeenth Amendment
Eighteenth Amendment
Nineteenth Amendment
Twentieth Amendment
TwentyFirst Amendment
Conclusion
Table 1: Allocation of seats for nonMuslims in the Provincial Assemblies of Pakistan; provided in
RCO 1985
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Amendments to the Constitution
of Pakistan
of Pakistan
Revised Edition: November 2015
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Abbreviations and Acronyms
ANP
Awami National Party
FATA
Federally Administered Tribal Areas
LFO
Legal Framework Order
MQM
Muttahida Quami Movement
PLO
Pakistan Legal Decisions
PMLN
Pakistan Muslim League (Nawaz Group)
PPP
Pakistan Peoples Party
RCO
Revival of Constitution Order 1985
SAARC
South Asian Association for Regional Cooperation
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FOREWORD
FOREWORD
he Constitution works as the basic law of a country. The Parliament may make amendments in special circumstances
if the
T need arises. Amendment to the Constitution is therefore considered a democratic parliamentary function.
Almost every
written constitution of the world contains rules and procedures to make amendments to it, albeit these procedures are
more
stringent than the procedures of amending ordinary legislation.
The Constitution of Pakistan has also undergone substantial changes since 1973. However, in the case of Pakistan,
the
Constitution has been amended not only by democraticallyelected Parliaments but also by military dictatorships
although these
amendments were later ratified by the elected Parliaments. The original fabric of the 1973 Constitution has, thus,
been
completely transformed and cannot be comprehended without a meticulous understanding of its amendments.
Amendments to the Constitution of Pakistan a Briefing Paper by PILDAT, is an effort in this regard. It aims to
familiarise the
Parliamentarians with the details of constitutional amendments so far brought to the Constitution as well as provides
them with a
critical analysis of the role that previous Parliaments have played in handling the amendments.
Authored by Mr. Hamid Khan, an academic expert in Constitutional Law and a Senior Advocate, the paper traces
the history of
amendments from the first amendment to the twentyfirst todate. The paper was first published in August 2004
reflecting the
analysis of Constitutional amendments till the time; it has been revised in the light of later developments by Mr.
Hamid Khan and
covers updated analysis.
The author and PILDAT have made significant efforts to ensure the accuracy of the contents of this paper. We,
however, do no
accept any responsibility of any omission or error, as it is not deliberate.
The views expressed in this paper belong to the author and are not necessarily shared by PILDAT.
Islamabad
November 2015
07
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r. Hamid Khan is a Senior Advocate, Supreme Court
M of Pakistan. He is married and has three sans and a
daughter. He has to his credit L.L.M. from University of
Illinois, USA (1973) and LLB from University Law College
Punjab University (1966). He has also attended many
academic programs: to name a few, the Orientation
Program in American Law (OPAL) in 1970 and Academic
Programme at the South Asia Institute. University of
Heidelberg. Germany (1986).
His professional career as an advocate began in 1968,
after which he enrolled as an Advocate in High Court
(1970). Later in 1979 he enrolled as an advocate in
Supreme Court. He was elected as Secretary, Lahore High
Court Bar Association in 197879. Later he was elected as
a Member of Punjab Bar council and served from 1979 to
1988 during which period he became Vice Chairman,
Punjab Bar Council in 1986. He is a member of Pakistan
Bar Council, elected in 1990 and reelected in 1995 and
2000. He is the Chairman of Legal Education Committee of
Pakistan Bar Council since 1995. During 19921993
Hamid Khan became President of the Lahore High Court
Bar Association, He has also been President for Supreme
Court Bar Association of Pakistan for the years 200103.
Hamid Khan is a partner of the reputed law firm Cornelius,
Lane & Mufti. Lahore.
Mr. Khan has an extensive teaching experience on the
ABOUT THE AUTHOR
ABOUT THE AUTHOR
subject of law. He has been a guest speaker at the National
Institute of Public Administration since 1978, a guest
speaker at Pakistan Administrative Staff College and also a
visiting lecturer of Law, Punjab University Law College in
Lahore from 1973 to 1980. He has also served as a Head
Examiner in 'Public International Law' at the University of
Punjab from 1981 to 1984.
Hamid Khan has penned many books during his illustrious
and high profile academic career. These include
'Constitutional and Political History of Pakistan' (2001),
'Principles of Administrative Law' (2000), 'Eighth
Amendment Constitutional and Political Crisis in Pakistan'
(1994), 'Administrative Tribunals for Civil Servants in
Pakistan' (1990) and 'Islamic Law of Inheritance' (1980),
just to name a few.
Over his brilliant career of more than 30 years, Hamid Khan
has also written numerous articles on law related matters.
Some of the prominent and highly acclaimed articles are
'Judicial Review of Administrative Actions in Pakistan'
(1982), 'An Outline of Constitutional History of Pakistan'
(1987), 'Government and Judiciary: 1994 to 1997, The
Crisis of State' (1998) and 'A history of Legal Profession in
Pakistan' (1998).
His insightful professional career has made him serve as a
lecturer, an advocate, a researcher and he has attended
many conferences in Pakistan and abroad. He represented
Pakistan bar Council in Biennial Conference of
International Bar Association (IBA) at France (1992),
LAWASIA Business Law Conference in Hong Kong (1996)
and SAARC Law Conference at Karachi (1997). He served
as a resource person/keynote speaker at many of the
conferences/workshops.
Hamid Khan was awarded the Dorab Patel Award for Rule
of Law (2002) and MadareMillat Award (2003).
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INTRODUCTION
INTRODUCTION
t is a parliamentary function in any democracy to make amendments in the Constitution. No constitution in the
World can be so
I rigid that it cannot be amended. Therefore every written constitution provides for the procedure of amendment of
the
Constitution which is generally different and more stringent than the manner and procedure of ordinary legislation.
Article 51 of the Constitution of Pakistan 1973 provides that the Parliament of Pakistan consists of the President and
two Houses
to be known as the National Assembly and the Senate. The Constitution provides for procedure to amend the
Constitution under
its Article 238 and 239. The Constitution, or any of its provisions, can be amended by an Act of Parliament provided
it is passed
by the votes of not less than twothirds of the total number of members of the National Assembly and the Senate,
each House
voting separately. However, no amendment of a constitutional provision affecting the limits of a province can be
made unless
such amendment had been approved by a resolution of its Provincial Assembly by the votes of less than twothirds
of the total
1
membership of that assembly.
Unfortunately, ever since the commencement of the Constitution on August 14, 1973, Pakistan has suffered from
absence of the
Parliament for sustained periods of time. During the Martial Law of General Zia, both the Houses of the Parliament
were
suspended for about eight years (from July 1977 to March 1985). Similarly during the military regime of General
Musharaf, both
the Houses of the Parliament remained suspended for three years (October 1999 to October 2002). In addition, the
National
Assembly was dissolved in 1977, 1988, 1990. 1993 and 199697, the total period of dissolution adds up to more
than one and
half years. In this way, the Parliament did not exist or was not functional for a total period of twelve and half years
out of fortytwo
years of the commencement of the Constitution.
During the course of Pakistan's chequered constitutional and political history, the Constitution has undergone
frequent and
comprehensive changes in the shape of Constitutional amendments which are briefly discussed ahead.
1. Khan, Harnid, Constitutional and Political History of Pakistan. Edition 2001, Oxford University Press, Karachi, p.504
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First Amendment
Consequent to the recognition of Bangladesh in 1974, the
Constitution (First Amendment) Act, 1974 was passed on
May 8, 1971. The Act deleted Clause (2) from Article 1
which provided for representation of East Pakistan in the
federation of Pakistan after the effect of foreign aggression
2
over there were eliminated.
Other important amendments to the Constitution brought
about by the First Amendment were as under:
i. Article 17 pertaining to the freedom of association
was amended providing for reasonable restriction on
this freedom to form associations imposed by law in
the interest of sovereignty or integrity of Pakistan.
Such law was also to provide that where the Federal
Government declared that any political par ty had been
formed or was operating in a manner prejudicial to the
sovereignty or integrity of Pakistan, the Federal
Government should, within fifteen days of such
declaration, refer the matter to the Supreme Court
whose decision on such reference would be final. It
was under this provision of the amended constitution
that the NAP was later dissolved in 1975 and the
matter was referred to the Supreme Cour t.
ii. The maximum period intervening the two successive
sessions of the Senate, the National Assembly, and
the Provincial Assemblies, was reduced from 130
days to 90 days.
iii. Chief Justice of a High Court could require a judge of
another High Court to attend the sittings of his court
provided the judge so asked had consented to it and
the President approved the same after consultation
with the Chief Justice of Pakistan and the Chief
Justice of the High Cour t of which he was the judge.
iv. On the establishment of a service tribunal, all
proceedings pending before any court, in relation to
the terms and conditions of service of employees to
which the jurisdiction of such tribunal extended,
would abate.
2. lbid, pp.51415
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Second Amendment
Clause (3) The Constitution (Second Amendment) Act,
1974 was passed on September 21, 1974 and added to
Article 260 of the Constitution that explains as to who is a
nonMuslim.
This Article pertains to definitions under the Constitution.
The new clause stated that "a person who does not believe
in the absolute and unqualified finality of the Prophethood
of Muhammad (PBUH) as the last of the Prophets or claims
to be a Prophet, in any sense of the word or of any
description whatsoever, after Muhammad (PBUH), or
recognizes such a claimant as a Prophet or a religious
reformer, is not a Muslim for the purposes of the
constitution or law."
Since this definition or explanation did not specifically refer
to the Ahmedis, therefore, Article 106, which pertains to
the formation of Provincial Assemblies and distribution of
the seats within such Assemblies, was also amended to
make mention of Ahmedis amongst the nonMuslim faiths
described in the Article for the purpose of reservation of
special seats for them. They were referred to as “persons
of the Quadiani group or the Lahori Group (who call
themselves 'Ahmedis').”
3. Ibid, pp.51518
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Third Amendment
The Constitution (Third Amendment) Act, 1975 was
passed on February 18, 1975. The Act was introduced to
curtail the rights of a person detained under a law for
preventive detention, extending the powers of the detaining
3
authority.
Article 10 of the Constitution, which provided for certain
safeguards against preventive detention, was amended in
February 1975 under the Constitution (Third Amendment)
Act, 1975 to the following effect:
i. The period of preventive detention for a detainee was
originally fixed at one month, beyond which period no
law for preventive detention could authorize
preventive detention unless the appropriate Review
Board, after affording the detainee an opportunity of
being heard in person, reviewed his case and
reported that, in its opinion, there was sufficient
cause for continuation of detention beyond one
month. This initial period of detention was extended
from one month to three months under the third
amendment.
ii. Under the constitution originally, it was required that a
detainee held under a law for preventive detention
should be communicated the grounds of his
detention not later than one week of such detention so
that he could make representations against the order
of detention at the earliest. Third amendment
extended this period from one week to fifteen days.
iii. The constitution limited the total period of preventive
detention to the maximum of twelve months within a
period of twentyfour months. However, an exception
to this limitation was made for a person who was
employed by, or worked for, or acted on instructions
received from the enemy. Such person could be
detained indefinitely. This exception was extended
under the third amendment to include any person
“who is acting or attempting to act in a manner
prejudicial to the integrity, security or defence of
Pakistan or any part thereof or who commits or
attempts to commit any act which amounts to an anti
national activity as defined in a federal law or is a
member of any association which has for its objects,
or which indulges in, any such antinational activity.”
3. Ibid, pp.52223
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Fourth Amendment
Under the Constitution (Fourth Amendment) Act, 1975,
passed on November 25, 1975, the High Courts were
forbidden from prohibiting the making of an order for
preventive detention of a person or to grant bail to any one
detained. The constitutional jurisdiction of the High Courts
was also curtailed in the matter of stay of recovery,
assessment, or collection of public revenues. Any stay
order granted in such a matter would cease to have effect
on the expiry of sixty days unless the matter was finally
decided by the Court within such time. All such interim
orders made by a High Court before the fourth amendment
5
would cease to have effect on the expiry of sixty days.
The opposition in the Parliament strongly opposed this
Amendment. The opposition members were forcibly
removed by the security staff from the National Assembly.
They included Ch. Zahur Ilahi, Mr. Mahmood Ali Kasuri,
Malik Suleiman, Mufti Mahmood, Prof. Ghafoor Ahmad,
Mr. Ahmad Raza Kasuri, Dr. Ghulam Husain and Mr. Zulfikar
Ali Bajwa.
The redeeming feature of this amendment was the
allocation of six special seats to the nonMuslim minorities
in the National Assembly and an increase in the number of
seats for the minorities in the Provincial Assembly of the
Punjab from three to five.
5. Ibid, pp 52324
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Fifth Amendment
Under the Constitution (Fifth Amendment) Act, 1976,
passed on September 15, 1976, the following major
6
changes in the Constitution were brought about:
i. The Governor of a province was not to be a permanent
resident of that province.
ii. The period for separation of the judiciary from the
executive was enhanced from three years to five
years.
iii. The Chief Justice of the Supreme Court, unless he
retired earlier on attaining the age of sixtyfive, would
hold office for a period of five years.
iv. In the same manner, the Chief Justice of a High Court
would hold office for a period of four years.
v. On the completion of the term of office as the Chief
Justice of the Supreme Court or a High Court, as the
case may be, he would have either of the two options,
to retire from his office and receive the pension to
which he would have been entitled had he retired from
office on attaining the age of retirement; or to assume
the office of the most senior of the judges of the court
concerned and to continue to receive the same salary
which he was receiving while holding the office of
Chief Justice.
vi. A Chief Justice, who continued after the completion of
his term of office as the senior most judge, could not
even be appointed as acting Chief Justice in the
absence of the Chief Justice or when vacancy occur
in the office of Chief Justice.
vii. The term of office of the Chief Justice was to apply to
those Chief Justices too who were appointed prior to
the enactment of the Fifth Amendment.
viii. The power of the Supreme Court to issue directions,
orders, or decrees was made subject to the Article
175(2) of the constitution, which states that: “No
court shall have any jurisdiction save as is or may be
conferred on it by the constitution or by or under any
law.” Thus the Supreme Court's jurisdiction was
restricted to what was expressly granted under the
constitution or a law.
ix. The common High Court of Sindh and Balochistan
was dissolved and separate High Courts for these two
provinces were established.
x. The Supreme Court and the High Court were
forbidden from making any order under Article 199
prohibiting the making, or suspending the operation,
of an order for the detention of any person under any
law providing for preventive detention: releasing on
bail any person detained under any law providing for
preventive detention; releasing on bail, or suspending
the operation of an order for the custody, of any
person against whom a report or complaint had been
made before any court or tribunal, or against whom a
case had been registered at any police station, in
respect of any offence, or who had been convicted by
any court of tribunal, prohibiting the registration of a
case at a police station, or the making of a report or
complaint before any court or tribunal, in respect of an
offence; or granting interim relief to any person
referred to above.
xi. All the orders, whether made by the Supreme Court or
a High Court, making of which was being forbidden
under the Fifth Amendment, were to become
ineffective after the commencement of the Fifth
Amendment and all applications for such orders were
to abate.
xii. A judge of a High Court could be transferred to another
High Court for a period up to one year without his
consent and without the consultation of the Chief
Justices concerned.
xiii. Article 204, regarding contempt of court, was
amended and the power of the High Courts to punish a
person for contempt of court was made subject to
ordinary law.
xiv. A judge of a High Court who refused to accept
appointment as a judge of the Supreme Court would
be deemed to have retired from his office.
6. Ibid, pp.53236
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Sixth Amendment
The Constitution (Sixth Amendment) Act 976 was passed
7
rather hurriedly on January 4, 1977.
While the National Assembly was having its last session
before its dissolution prior to fresh elections, the
Constitution (Sixth Amendment) Bill was placed before the
Parliament and was passed.
The main provision of the Sixth Amendment pertained to
extension in the tenure of the Chief Justices of the Supreme
Court and the High Courts beyond the age of retirement. It
was provided that the Chief Justice of the Supreme Court,
who had attained the retirement age of sixtyfive, and a
Chief Justice of a High Court, who had attained the
retirement age of sixtytwo but had not completed their
term of office of five years and four years, respectively,
would continue to hold office until the completion of their
respective term of office, as the case may be.
7. Ibid, p.538
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Seventh Amendment
The Constitution (Seventh Amendment) Act, 1977 passed
on May 16 1977, provided for a referendum to
8
demonstrate confidence in the Prime Minister.
The referendum was to be held in accordance with a law
made by the Parliament.
A Referendum Commission was set up to hold the
referendum, count the votes, and declare its result. If, on
the final count of votes cast at the referendum, the Prime
Minister failed to obtain a majority of the total votes cast, he
would be deemed to have resigned from office.
Another provision of the Seventh Amendment barred the
High Courts from exercising jurisdiction under Article 199
in relation to any area in which the armed forces were
acting in aid of the civil power in pursuance of Article 245.
However, the proceedings pending before the High Courts
were saved.
8.
Ibid, pp.66566
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Revival of Constitution 1973 ORDER 1985
(RCO) and Eighth Amendment
The Supreme Court of Pakistan, in the case titled “Nusrat
Bhutto V. Chief of Army Staff” (PLO 1977 S.0 657)
conferred the power to amend the Constitution on General
ZiaulHaq.
Exercising such power, General Zia comprehensively
amended the Constitution through a President's Order,
known as Revival of the Constitution of 1973 Order (RCO),
9
on March 2, 1985.
The RCO made fundamental alterations in the Constitution
and made significant departures from its original
concepts. As many as sixtyfive Articles (Out of 280
Articles) were amended/substituted/added
/modified/varied/deleted/omitted. RCO can be regarded
with justification as part of the Eighth Amendment without
which the Eighth Amendment cannot be fully
comprehended.
Important changes brought about by the RCO are briefly
enumerated below:
i.
Article 2A was inserted, making the Objectives
Resolution of 1949 a substantive and effective part
of the Constitution. The Resolution, with some
modifications, had already been adopted as a
preamble to the constitutions of 1956. 1962, and
1973. Now the resolution was reproduced as an
annex and made an operative part, with significant
modification. The sixth paragraph of the Objectives
Resolution in its original form read as follows:
“Wherein adequate provision shall be made for the
minorities freely to profess and practice their
religions and develop their culture".
While reproducing the above paragraph in the Annex,
the word 'freely was omitted.
ii. The electoral college for election to the office of the
President was modified so as to comprise both
Houses of Parliament and all four Provincial
Assemblies (with equal weightage given in terms of
votes to each Provincial Assembly).
iii. The President was supposed to act on the advice of
the Cabinet, the Prime Minister, or the appropriate
minister, but he could require the Cabinet to re
consider such advice.
iv. The President was empowered to dissolve the
National Assembly at his discretion where, in his
opinion, appeal to the electorate was necessary. On
such dissolution, elections were to be called within
one hundred days.
v. On the dissolution of the National Assembly, the
President could ask the Prime Minister to continue in
office until his successor entered the office of Prime
Minister. This apparently applied to the Prime
Minister in the event of either his resignation from
office or where the National Assembly was dissolved
on his advice. Where the National Assembly was
dissolved at the discretion of the President, a
caretaker Cabinet would be appointed till such time
that the election of the Prime Minister had taken
place on the reconstitution of the National Assembly
after the General Election.
vi. The seats reserved for women in the National
Assembly were increased from ten to twenty. These
special seats for women were only available until the
holding of third general election to the National
Assembly under the Constitution.
vii. The number of members in the Senate was
increased from sixtythree to eightyseven, with five
seats from each province reserved for technocrats,
ulema, or professionals. The number of seats for
FATA were increased from five to eight. Seats for the
Federal Capital were increased from two to three.
viii. The period of time provided for the President to give
assent to the Bills passed by the Parliament was
increased from seven to fortyfive days. The
President could return a Bill (other than a Money Bill)
within fortyfive days for reconsideration. This gave
the President a power to veto a Bill, but this could be
overridden by passing the same Bill again by a
majority of the members, present and voting, of both
Houses of Parliament in a joint session.
ix. The President could, at his discretion, appoint any
member of the National Assembly as Prime Minister
who, in his opinion, could command the confidence
of a majority of the members of the National
9. Ibid, pp.53236
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Assembly. However, a Prime Minister so appointed
had to obtain a vote of confidence from the National
Assembly within sixty days. The Prime Minister was
to hold office during the pleasure of the President,
but the President could not remove him unless he
was satisfied that the Prime Minister did not
command the confidence of the majority of the
members of the National Assembly.
x. Federal ministers and ministers of state were to be
appointed by the President on the advice of the Prime
Minister.
xi. Procedure for passing the motion of vote of no
confidence against the Prime Minister was altered
and the requirement of giving the name of an
alternative candidate in such a motion was omitted.
xii. The provision for amendment to the Constitution
was modified and under the new provision, an
amendment to the Constitution could only be passed
by a majority of two thirds of the total members in
the National Assembly and the Senate and by an
absolute majority in all four Provincial Assemblies.
The procedure for amendment to the Constitution
was further modified under Presidents Order 20 of
1985, and the requirement of laying the Amendment
Bill before the Provincial Assemblies was dispensed
with except where such amendment had the effect of
altering the limits of a province. In such a case, the
Provincial Assembly of the concerned province had
to pass the amendment by twothirds of its total
membership.
xiii. The Governor was supposed to act on the advice of
the Cabinet or the Chief Minister, or appropriate
minister, but he could require the Cabinet to
reconsider such advice.
xiv. The period of time provided for the Governor to give
assent to the Bills passed by the Provincial
Assembly was increased from seven to fortyfive
days. The Governor could return a Bill (other than a
Money Bill) within fortyfive days for
reconsideration. This gave the Governor power to
veto a Bill but it could be overridden by passing the
same Bill again by the votes of the majority of the
total membership of the Provincial Assembly.
xv. The Governor could appoint a member of the
Provincial Assembly as Chief Minister who, in his
opinion, could command the confidence of the
majority of the members of the Provincial Assembly.
However, a Chief Minister so appointed had to obtain
a vote of confidence from the Provincial Assembly
within sixty days. The Chief Minister was to hold
office during the pleasure of the Governor but the
Governor could not remove him unless he was
satisfied that the Chief Minister did not command the
confidence of the majority of the members of the
Provincial Assembly.
xvi. Provincial ministers were to be appointed by the
Governor from amongst the members of the
Provincial Assembly on the advice of the Chief
Minister.
xvii. Procedure for passing the motion of vote of no
confidence against a Chief Minister was altered and
the requirement of giving the name of an alternative
candidate was omitted.
xviii. The number of general constituencies (for Muslims)
of the National Assembly was raised from 200 to
207. In addition to that, ten seats for minorities were
reserved. Previously, under the Fourth Amendment,
six seats were provided for nonMuslim minorities.
However, previously the elections to the minority
seats were held in the National Assembly itself,
based on proportional representation with a single
transferable vote. The RCO provided ten seats for
minorities, four for Christians; four for Hindus and
scheduled castes; one for Sikhs, Buddhists, and
Parsee communities and other nonMuslims; and
one for Ahmedis. These members were to be elected
simultaneously with members from general
constituencies, on the basis of separate electorates.
xix. The seats in the Provincial Assemblies of
Balochistan, thethen NWFP, the Punjab, and Sindh
for minorities were raised from one to three, five to
eight and two to nine, respectively. This allocation of
seats to various nonMuslim communities is shown
in the table. These members were to be elected,
simultaneously with members from general
constituencies, on the basis of separate electorates.
xx. Separate electorates for minorities were given
constitutional recognition for the first time in
Pakistan. Zia had previously introduced separate
electorates for minorities in 1979 by amendment to
the Representation of the People Act, 1976. The
20
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RCO, however, gave constitutional status to the
separate electorates.
xxi. One of the most striking changes brought about by
the RCO was a large number of additions to the
qualifications and disqualifications for membership
to the Parliament. Originally, the Constitution
provided for a few qualifications which included
requirements of citizenship and minimum age. The
disqualifications provided originally in the
Constitution were also few, which included insanity,
insolvency, termination of citizenship, and holding of
office of profit in the service of Pakistan. The RCO
made wholesale additions to these qualifications
and disqualifications.
The qualifications added under Article 62 require a
candidate for the Parliament to be someone:
a) of good character and not commonly known as one
who violates Islamic injunctions;
b) with adequate knowledge of Islamic teachings and
practices and obligatory duties prescribed by Islam
as well as abstaining from major sins;
c) sagacious, righteous, nonprofligate, honest and
ameen;
d) with no criminal conviction involving moral turpitude
or for giving false evidence; and
e) after the establishment of Pakistan, never to have
worked against the integrity of the country or opposed
the ideology of Pakistan.
The disqualifications added under Article 63 require a
candidate for the Parliament not to:
a)
be propagating any opinion, or acting in any the
maintenance of public order, or the integrity or
independence of the judiciary of Pakistan, or which
defames or brings into ridicule the judiciary or the
armed forces of Pakistan;
b)
have been, on conviction for any offence which, in
the opinion of the Chief Election Commissioner,
involves moral turpitude, sentenced to
imprisonment for a term of not less than two years,
unless a period of five years has elapsed since his
release;
c)
have been dismissed from the service of Pakistan
on the ground of misconduct, unless a period of five
years has elapsed since his dismissal;
d)
have been removed or been compulsorily retired
from the service of Pakistan on the ground of
misconduct unless a period of three years has
elapsed since his removal or compulsory
retirement;
Maximum Disclosure
Balochistan
1
1
1
Province
Christians
Hindus and
others
belonging to
the scheduled
castes
Sikh, Budhists
and Parsi
communities,
and other non
Muslims
Those others
belonging to
the Qadiani
group or the
Lahori
group(who
call
themselves
Ahmedis)
Sindh
The Nortwest
Frontier Province
1
1
1
The Punjab
5
1
1
1
2
5
1
1
Table 1: Allocation of seats for nonMuslims
in the Provincial Assemblies of Pakistan; provided in RCO 1985
of Pakistan
of Pakistan
Page 23
22
e)
have been in the service of Pakistan or of any
statutory body or any body which is owned or
controlled by the government or in which the
government has a controlling share or interest,
unless a period of two years has elapsed since he
ceased to be in such service;
f)
have been found guilty of a corrupt or illegal
practice under any law for the time being in force,
unless a period of five years has elapsed from the
date on which that order takes effect;
g)
have been convicted under Section 7 of the Political
Parties Act, 1962 0(111 of 1962), unless a period
of five years has elapsed from the date of such
conviction; or
h)
have, whether by himself or by any person or body
of persons in trust for him or for his benefit or on his
account or as a member of a Hindu undivided
family, any share or interest in a contract, not being
a contract between a cooperative society and
government, for the supply of goods to, or for the
execution of any contract or for the performance of
any service under taken by government.
xxii.The RCO also introduced the office of Adviser to the
Prime Minister. The President could appoint up to
five Advisers to the Prime Minister, on the advice of
the Prime Minister. However, these Advisers could
not participate in the proceedings of either House at
the Parliament.
xxiii.The executive authority of the Federation would vest in
the President which should be exercised by him,
either directly or through officers subordinate to
him, in accordance with the Constitution. This was
a clear departure from the original scheme of the
Constitution which provided that the executive
authority of the Federation should be exercised in
the name of the President by the Federal
Government consisting of the Prime Minister and
the Federal Ministers which should act through the
Prime Minister who was the chief executive of the
federation. Thus, the President was given a
preponderant position over the Prime Minister. A
similar provision was made regarding the
relationship between a Governor and the Chief
Minister of a province.
xxiv. The Supreme Court was empowered to transfer
any case pending before any High Court to any
other High Cour t.
xxv. The RCO provided for the first time that the
President could request one of the judges of the
Supreme Court to act as Chief Justice of a High
Court.
xxvi. The permanent Benches of the High Courts were
incorporated in the Constitution and thus their
establishment was made part of the permanent
Constitution. An effort was also made to establish
divisional cour ts and there was specific mention for
their establishment.
xxvii. The President was conferred with the discretionary
power to appoint the Chairman, Joint Chiefs of Staff
Committee, and Chiefs of Army, Naval, and Air
Staffs.
xxviii. All martial law regulations, martial law orders, laws
framed during the martial law regime, and acts and
orders made thereunder were validated under
Article 270A. Complete indemnity against suits
and prosecution was extended to all people or
authorities for or on account of or in respect of any
order made, proceedings taken, or act done under
such regulations, orders, laws, notifications and so
on.
xxix. Appointment of the Governor of a province was left
to the discretion of the President.
xxx. A National Security Council was to be constituted
under Article 152A which was to include the
President, the Prime Minister, the Chairman of the
Senate, the Chairman of the Joint Chiefs of Staff
Committee, and the Chiefs of the three armed
forces.
It was in these circumstances that the Constitution (Eighth
Amendment) Bill was moved. It was passed on November
10
11, 1985. Although the Eighth Amendment did not make
extensive changes like the RCO, yet it modified some of the
alterations already made under the RCO. Eighteen Articles
in all were amended, added, modified, varied, or omitted.
Their cumulative effect was to reduce the powers of the
President a little bit and to correspondingly extend the
10. Ibid, pp.67679
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of Pakistan
Page 24
23
powers of the Prime Minister and the Cabinet. While the
powers of the President were not curtailed in material
terms, the enactment of the Eighth Amendment led the way
to the lifting of mar tial law.
Although the Parliament was forced to accept most of the
constitutional package of the RCO, certain material
modifications were brought about by the Eighth
Amendment which are discussed below:
i. The President was required to act on the advice of the
Prime Minister or Cabinet (but not the appropriate
minister). The President could, however, require the
Prime Minister or the Cabinet to reconsider such
advice.
ii. The period for giving assent by the President to the
Bills passed by the Parliament was reduced from
fortyfive to thirty days, but the rest of the provisions
of the RCO remained the same.
iii. The President retained the power to dissolve the
National Assembly at his discretion, but this power
was made conditional. He could dissolve the National
Assembly provided that, in his opinion, the
government could not be carried on in accordance
with the provisions of the Constitution and an appeal
to the electorate had become necessary. However, the
period for holding elections after the dissolution of the
National Assembly was reduced from 10,0 to 90
days.
iv. The President retained the power to appoint, at his
discretion, Chiefs of armed forces and the Chief
Election Commissioner.
v. The power of the President to appoint the Prime
Minister was limited to a period of five years, that is,
until March 20, 1990 after which date, the President
was required to invite that member of the National
Assembly, who commanded the confidence of the
majority of its members, as ascertained in a session
of the Assembly summoned for the purpose, to
assume the office of the Prime Minister. In other
words, the procedure for the election of the Prime
Minister by majority of total membership of the
National Assembly was restored.
vi. The President retained the power to appoint, at his
discretion. Governors of the provinces but in
consultation with the Prime Minister.
vii. The power of the Governor to appoint the Chief
Minister was limited to three years, that is, until March
20, 1988 after which date, the Governor was required
to invite that member of the Provincial Assembly to be
the Chief Minister, who commanded the confidence of
the majority of its members, as ascertained in a
session of the Assembly summoned for the purpose.
In other words, the election of the Chief Minister by
majority of total membership of the Provincial
Assembly was restored.
viii. The power of the Governor to appoint the Chief
Minister was limited to three years, that is, until March
20, 1988 after which date, the Governor was required
to invite that member of the Provincial Assembly to be
the Chief Minister, who commanded the confidence of
the majority of the members of the Provincial
Assembly as ascertained in a session of the
Assembly summoned for the purpose. In other words,
the election of the Chief Minister by majority of total
membership of the Provincial Assembly was
restored.
ix. The Governor like the President, could also dissolve
the Provincial Assembly at his discretion, but subject
to the previous approval of the President.
x. Article 152A, regarding the Constitution and
establishment of the National Security Council, was
omitted.
Article 270A, regarding validation of the laws, acts, and
orders of martial law regime was extended to cover more
cases. The word 'validation' was substituted by the word
'affirmation.' In addition to the President's order,
ordinances, martial law regulations, martial law orders,
Referendum Order, 1984, the RCO and other constitutional
amendments by Zia from time to time were affirmed and
validated.
of Pakistan
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Page 25
Ninth Amendment
The Constitution (Ninth Amendment) Bill was moved in
1986 during Prime Minister Junejo's government.
In this Amendment Bill, Article 2, which declares Islam as
the State Religion of Pakistan, was to be expanded in order
to include that the Injunctions of Islam, as laid down in the
Holy Quran and Sunna, should be supreme law and source
of guidance for legislation.
However, such legislation was to be enacted by the
Parliament and Provincial Assemblies and would also
extend to policy making by the Government.
This Bill was also intended to enhance the powers of the
Federal Shariat Court to make recommendations for
bringing the fiscal laws and laws relating to the levy and
collection of taxes in conformity with the Islamic
Injunctions.
However, this Amendment Bill was never passed by the
Parliament.
24
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of Pakistan
Page 26
Tenth Amendment
The Constitution (Tenth Amendment) Act, 1987 was
passed on March 29, 1987 reducing the number of days
from 160 to 130 working days that the National assembly
is required to meet each year.
Similarly, under this amendment, the days that the Senate
was required to meet each year was also reduced from
160 to 130 days.
25
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of Pakistan
Page 27
Eleventh Amendment
The Constitution (Eleventh Amendment) Bill was
introduced the Senate on August 31, 1989.
It was moved by Senators Mr. Muhammad Ali Khan, Dr.
Noor Jehan Panezai and Syed Faseih Iqbal as a 'Private
Members' Bill.'
The proposed Amendment sought to restore twenty
women seats in the National Assembly and the Report of
the Standing Committee was presented on August 29,
1990.
However, two years later, on August 23, 1992, the Bill was
withdrawn by its movers after an assurance given by the
Minister for Law and Justice that the Government intends
to introduce the same Bill very soon.
26
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Page 28
Twelfth Amendment
The Twelfth Amendment to the Constitution was passed by
the Parliament on July 28, 1991, the main purpose of
which was the establishment of Special Courts for the trial
11
of heinous offences.
For this purpose, Article 212B was added to the
Constitution. It also provided for appeals against the
judgment and sentence of Special Courts before Supreme
Appellate Courts, each consisting of two High Court
judges and a Supreme Court judge who presided such
Courts.
Other provisions of the Twelfth Amendment related to the
enhancement of salaries of the judges of the Supreme
Court and the High Courts under the Fifth Schedule to the
Constitution. The Twelfth Amendment was a temporary
amendment as far as Article 212E was concerned and was
to last for a period of three years only. Article 212B thus
became ineffective in July 1994.
11. lbid, pp.74849
27
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Page 29
Thirteenth Amendment
The Constitution (Thirteenth Amendment) Act, 1997 was
12
moved and passed in a matter of minutes on April 4, 1997
by relaxing the usual rules regarding constitutional
amendments, particularly those concerning advance
consideration and repeated readings.
The most significant amendment was the deletion of
Article 58(2)(b) of the Constitution vesting discretionary
power in the President to dissolve the National Assembly.
The corresponding power of the Governors to dissolve the
Provincial Assembly under Article 112(2)(b) was also
done away with.
The power of the President to appoint governors was
watered down. Previously, such appointments were made
by the President 'after consultation' with the Prime Minister.
After the Thirteenth Amendment, such power was
exercisable 'on the advice of the prime minister.'
This change made all the difference because the advice of
the Prime Minister is binding on the President. By the
amendment of Article 243 of the Constitution, the
discretionary power of the President to appoint Chiefs of
Armed Forces was also taken away.
12. Ibid, pp.81718
28
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Page 30
Fourteenth Amendment
With twothirds majority in both Houses of Parliament,
Nawaz Sharif had the Constitution (Fourteenth
13
Amendment) Act, 1977 passed on July 3, 1997. This
amendment was apparently introduced in order to put to an
end to the problem of defections. Like the Thirteenth
Amendment, this one too was also rushed through
Parliament in a matter of minutes around midnight.
Opposition attended the session and amendment was
passed unanimously.
The Fourteenth Amendment added Article 63A to the
Constitution. It provides that if a member of Parliament or
Provincial Assembly defects, then the head of the political
party to which he belongs or on whose ticket he was
elected himself or through another person authorized in
this behalf may give notice to him to show cause within
seven days on why disciplinary action be not taken against
him. After the show cause notice, the disciplinary
committee of the party would decide the matter if it
pertains to breach of party discipline such as violation of
the party constitution, code of conduct, or declared
policies.
In case of a decision against such a member, he can appeal
to the head of the party whose decision would be final, In
case a member votes contrary to any direction issued by
the parliamentary party to which he belongs, or abstains
from voting against party policy in relation to any Bill, the
head of the party concerned, after examining his
explanations, would determine whether or not such
member has defected.
The presiding officer of the House to which the member
concerned belonged would be sent the decision who
would transmit it within two days to the Chief Election
Commissioner who, in turn, would give effect to the
decision within seven days of its receipt.
13. Ibid. pp.81819
29
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of Pakistan
Page 31
Fifteenth Amendment
In August 1998, the Nawaz Sharif regime once again tried
to amend the Constitution through introduction of The
Constitution (Fifteenth Amendment) Bill on August 28,
1998. The proposed amendment would have had
profound impact on the character of the Constitution, if
passed by the Parliament. The Bill contained the following
14
provisions:
“Addition of new Article 2B in the Constitution: In the
Constitution of the Islamic Republic of Pakistan,
hereinafter referred to as the said Constitution, after Article
2A, the following new Ar ticle shall be inser ted, namely:
2B. Supremacy of the Quran and Sunnah:
(1) The Holy Quran and Sunnah of the Holy Prophet
(peace be upon Him) shall be the supreme law of
Pakistan.
Explanation: In the application of this clause to the
personal law of any Muslim sect, the expression 'Quran
and Sunnah' shall mean the Quran and Sunnah as
interpreted by that sect
(2) The Federal Government shall be under an obligation
to take steps to enforce the Shariah, to establish salat,
to administer zakat, to promote amr bil ma'roof and
nahi anil munkar (to prescribe what is right and to
forbid what is wrong), to eradicate corruption at all
levels and to provide substantial socioeconomic
justice, in accordance with the principles of Islam, as
laid down in the Holy Quran and Sunnah.
(3) The Federal Government may issue directives for the
implementation of the provisions set out in clauses
(1) and (2) and may take the necessary action against
any state functionary for noncompliance of the said
directives.
(4) Nothing contained in this Article shall affect the
personal law, religious freedom, traditions or customs
of nonMuslims and their status as citizens.
(5) The provisions of this Article shall have effect
notwithstanding anything contained in the
Constitution; any law or judgment of any Court.
Amendment of Article 239 of the Constitution: In the
Constitution, in Article 239, after clause (3) the
following new clauses shall be inser ted, namely:
(3A) Notwithstanding anything contained in clause (1)
to (3), a Bill to amend the Constitution providing for
the removal of any impediment in the enforcement of
any matter relating to Shariah and the implementation
of the Injunctions of Islam may originate in either
House and shall, if it is passed by a majority of the
members voting in the House in which it originated, be
transmitted to the other House; and if the Bill is passed
without amendment by the majority of the members
voting in the other House also, it shall be presented to
the President for assent.
(3B) If a Bill transmitted to a House under clause (3A)
is rejected or is not passed within ninety days of its
receipt or is passed with amendment it shall be
considered in a joint sitting.
(3C) If the Bill is passed by a majority of the members
voting in the joint sitting, with or without amendment,
it shall be presented to the President for assent.
(D) The President shall assent to the Bill presented to
him under clause (3A) or clause (3C) within seven
days of the presentation of the Bill".
The Bill generated heated debate throughout the country.
The opposition in the Parliament was almost united against
the Bill and there was even some resistance from within the
PMLN. Nawaz Sharif called upon the members of the
Parliament from his party, who were opposed to the Bill, to
resign. Consequently the opposition within the party caved
in under such threat.
Though the Bill was somewhat modified to appease such
members of the party, the main provisions were retained.
The clauses relating to executive directives and the
constitutional amendment by simple majority were
withdrawn.
The Bill was tabled before the National Assembly on
October 9, 1998 and it passed by 151 in favour and 16
against it. The members of the National Assembly, voting
in favour of the Bill, included 143 from PMLN, seven from
FATA members and Mir Hasil Bizenjo from Balochistan.
Members belonging to the MQM remained absent from the
House. The members belonging to nonMuslim minorities
were present in the House but they did not participate in the
vote. The ANP and PPP members present in the House
14. Ibid, pp.92730
30
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Page 32
voted against the Bill.
The Bill was not presented before the Senate because
Nawaz Sharif government did not have the required two
third majority there. The Bill was initially kept back to be
tabled after March 2000, when elections to half the
membership of the Senate were due to be held and it was
expected that the PMLN would then acquire twothird
majority in the Senate. Later, however, Nawaz Sharif
government was overthrown through a military takeover in
October 1999, before Senate elections could take place.
31
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of Pakistan
Page 33
Sixteenth Amendment
Article 27 of the Constitution provides for safeguards
against discrimination in services on the ground of race,
religion. caste, sex. residence or place of birth. However,
an exception was made initially for ten years for
reservation of quota for persons of disadvantaged class or
area to secure their adequate representation in the service
of Pakistan. This was indeed an affirmative action to
promote the interest of the people living in areas which
remained backward because adequate educational
facilities were not available in such areas. This period was
extended to twenty years under the Eighth Amendment.
The abolition of quota is very sensitive political issue
particularly with the disadvantaged small provinces and
backward areas within each province. In order to avoid this
issue. Constitution (Sixteenth Amendment) Act, 1999 was
promulgated on August 5, 1999 amending Article 27 and
extending period of quota system in services to forty
years; that is, until August 2013.
32
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of Pakistan
Page 34
Legal Framework Order (LFO) and
Seventeenth Amendment
The Supreme Court of Pakistan granted power to amend
the Constitution to General Musharraf in the judgment of
the case titled “Zafar Ali Shah V. General Pervaiz Musharaf”
(PLO 2000 S.C. 869). Gen. Musharraf in exercise of such
power promulgated Legal Framework Order 2002 (LEO) on
August 21, 2002 amending 29 Articles of the Constitution.
Impor tant features of LFO are enumerated below:
i.
Political parties are required to hold intra party
elections to elect their office bearers and party
leaders. It has also been provided that no political
party should promote sectarian, ethnic, regional
hatred or animosity.
ii.
Musharraf would relinquish the office of Chief
Executive on such day that he might determine in
accordance with the judgment in Zafar Ali Shah's
case. However, he would hold office of President of
Pakistan for a term of five years from the day he
assumed such office.
iii.
The seats in the National Assembly were increased
to 342 with 60 seats reserved for women and 10
seats reserved for nonMuslims. The number of
seats in Provincial Assemblies were also increased.
In Balochistan, the number of seats were raised to
65 (11 seats reserved for women and 3 for non
Muslims); in the thenNWFP, seats were raised to
144 (22 seats reserved for women and three for
non Muslims); in the Punjab, seats were raised to
371 (66 seats reserved for women and 8 seats for
non Muslims); and in Sindh, seats were increased
to 168 (29 seats reserved for women and 9 seats
for non Muslims). The seats in the Senate were
increased to 100 with 16 seats reserved for
women, i.e., 4 from each province.
iv.
Article 58(2)(b), deleted from the Constitution by
Thirteenth Amendment, was revived. The President
was again empowered to dissolve the National
Assembly at his discretion.
v.
New disqualifications were added to Article 63
which included persons convicted and sentenced
to imprisonment as absconders, defaulters in the
payment of loan from banks or cooperative
societies amounting to Rs.2 million or more,
defaulters of the payment of government dues and
utility bills, etc.
vi.
Article 63A, added by the Fourteenth Amendment,
was drastically changed and the defection clause
would only be applicable to a member of a political
party who votes against the direction of his
parliamentary party in relation to election of the
Prime Minister or the Chief Minister; or in a vote of
no confidence; or a money Bill. Defection clause
would only apply to a member of a parliamentary
party, if composed of a single political party in a
House, on his resignation from membership of that
political party or joining of another parliamentary
party.
vii. In case of difference of opinion between the two
Houses of the Parliament on a Bill, it would be
referred to a mediation committee consisting of 16
members, 8 members from each House of the
Parliament.
viii. Whenever the Money Bill would originate in National
Assembly, its copy would be transmitted to the
Senate which may make its own recommendations
on the Bill to the National Assembly within seven
days. However, National Assembly can pass the
Money Bill with or without incorporating the
recommendations of the Senate.
ix.
Where a Bill is passed by both the Houses of the
Parliament and is presented to the President for
assent, he may return the Bill to the Parliament for
reconsideration. However, the Bill can only be
passed with or without amendments by the
Parliament after going through the process of
mediation committee.
x.
A Governor of a province would be appointed by the
President after consultation with the Prime Minister.
xi.
Article 112 (2)(b), deleted by the Thirteenth
Constitutional Amendment, was revived, thus,
conferring discretionary powers on a Governor to
dissolve Provincial Assembly at his discretion
subject to the previous approval of the President.
xii. Article 140A has been added so as to confer
constitutional status to the local government
system.
xiii. Article 152A (National Security Council), which
33
of Pakistan
of Pakistan
Page 35
was deleted under the Eighth Constitutional
Amendment, was added. It included four men in
uniform namely the Chairman Joint Chiefs of Staff
Committee and three Chiefs of Staff of the Pakistan
Army, Pakistan Navy and Pakistan Air Force. The
functions of National Security Council (NSC)
included consultation on strategic methods like
sovereignty, integrity and security of the State and
democracy, governance and inter provincial
harmony.
xiv. Article 209 was modified conferring power in the
Supreme Judicial Council to enquire into the matter
of misconduct of judges on its own motion.
xv. The Election Commission of Pakistan was enlarged
by including four judges of the High Courts, one
from each Province.
xvi. A provision was made whereas the President would
appoint caretaker government on the dissolution of
National Assembly. The Governors would have the
same power in the event of dissolution of Provincial
Assemblies.
xvii. Article 270AA was added validating all the laws
made during the period of suspension of the
constitution and actions taken thereunder.
xviii. Article 270B was added declaring that the elections
held in October 2002 would be deemed to have
been held under the constitution.
xix. Article 270C was added declaring that all the judges
who had taken oath under the Oath of Office of
Judges Order 2000 would be deemed to have been
appointed under the Constitution. Similarly those
who had not taken oath under the said Order would
be deemed to have ceased to continue as judges.
xx. Schedule VI was amended and a number of laws
were added to the list of laws that could not be
altered, repealed or amended without previous
sanction of the President. These laws include State
Bank of Pakistan Act, National Accountability
Bureau Ordinance, Election Commission Order
2002; Conduct of General Elections Order 2002,
Political Parties Order 2002, the Police Order 2002
and all the four Local Government Ordinances for
the four provinces, passed in 2001.
However, LF0 was never submitted before the Parliament
and Seventeenth Amendment Bill only contained
amendments which were being made in the Constitution
under the assumption that LFO had become part of the
Constitution. In fact the amendments were made in the
provisions that were altered /amended /added/varied by
the LFO. The amendments made in Articles 17, 51, 59, 62,
63, 63A, 70, 71, 73, 75,101, 140A, 199, 203C, 209,
218,224, 260, 270B and 270C of the Constitution by LFO
were not touched by the Seventeenth Amendment Act.
These were deemed to have been validly made in the
Constitution under the language used in Article 270AA. In
this behalf, the relevant words in the LFO are reproduced as
under:
“(1) The Proclamation of Emergency of the fourteenth day
of October. 1999, all President's Orders, Ordinances, Chief
Executive's Orders, including the Provisional Constitution
Order No.1 of 1999, the Oath of Office (Judges) Order,
2000 (No.1 of 2000), Chief Executive's Order No.12 of
2002, the amendments made in the Constitution through
the Legal Framework Order, 2002 (Chief Executive's Order
No. 24 of 2002), the Legal Framework (Amendment)
Order, 2002, Chief Executive's Order No. 29 of 2002), the
Legal Framework (Second amendment) Order, 2002
(Chief Executive's Order No. 32 of 2002) and all other laws
made between the twelfth day of October, one thousand
nine hundred and ninety nine and the date on which this
Article comes into force (both days inclusive), having been
duly made or accordingly affirmed, adopted and declared
to have been validly made by the competent authority and
notwithstanding anything contained in the Constitution
shall not be called in question in any court or forum on any
ground whatsoever.” (Emphasis added)
The Seventeenth Amendment Act made amendments in
the following Ar ticles of the Constitution:
i. Article 41 (Election of tire President) was amended. It
added a proviso to paragraph (b) in Clause (7) to the
effect that the disqualification incurred by an MNA for
holding another office of profit would become
effective on December 31, 2004. However, there was
no paragraph (b) in the Constitution. It was
introduced by the LFO. Clause (8) was added to the
Article 41 which provided only for endorsement of
Musharraf's election as President. Clause (9) was
added to Article 41 which authorized the Chief
Election Commissioner to regulate and conduct the
proceedings for vote of confidence for Musharraf and
to count the votes cast during such proceedings. The
34
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Page 36
Clauses (8) and (9) were transitional provisions and
have already become dead letter.
ii. In Article 58, a new Clause (3) was added to provide
for reference to the Supreme Court within 15 days of
dissolution of National Assembly under Article
58(2)(b). The sub clause (b) of clause (2) of Article
58 was deleted by the Thirteenth Amendment Act
1997. It was reinserted by the LFO in 2002. An
identical amendment was also made in Article 112
(Dissolution of a Provincial Assembly by the
Governor), which was also deleted by the Thirteenth
Amendment Act, 1997.
iii. Article 152A (National Security Council) was deleted.
However, this Article did not exist in the Constitution
and was only added by/the LFO.
iv. Article 179 purported to substitute new text in the
Article. The new text (Retiring age of Supreme Court
judges) was already there in the Constitution before it
was changed by the LFO. This amendment erased the
change in the Constitution deemed to have been
affected by the LFO whereby the judges' retirement
age was raised by three years.
v. The substitution of Article 195 (Retirement age of
High Court judges) was similar to that of the
substitution in Ar ticle 179.
vi. Article 268 listed the enactments that could not be
amended or even discussed in the Parliament or the
Provincial Assemblies without the prior approval of
the President. Before the LFO was issued, 24 laws
listed in the Sixth Schedule were so protected. The
LFO added eleven more laws to the list. The
Seventeenth Amendment Act reduced the protection
to provincial local government ordinances and the
Police Order to six years.
vii. Article 270AA, inserted by LFO, was replaced with a
new text. It affirmed and validated all amendments
made by the LFO in the Constitution. It also validated
laws made from October 12, 1999 onward as having
been validly made or accorded affirmation, adoption
and declaration by the competent authority. All orders
made, proceedings taken, appointments made, acts
done by any authority or person under such laws from
October 12, 1999 onwards were validated and
affirmed under Article 270AA. "Competent authority"
was defined as the appropriate legislature in respect
of President's Orders, Ordinances, Chief Executive's
Orders and enactments, including amendments in the
Constitution. Since LFO and its amendments were
made through Chief Executive's Orders, therefore it
would be deemed that the amendments made in the
Constitution by LFO were made by the Parliament
itself.
LFO had amended / added twenty nine Articles in the
Constitution out of which twenty were left untouched by
the Seventeenth Amendment. Only the provisions of nine
Articles namely 41, 58, 112, 152A, 179, 195, 243, 268
and 270AA were amended / deleted / substituted by the
Seventeenth Amendment. Thus, LFO was deemed to have
become par t of the Constitution.
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The Eighteenth Amendment
The PPPP government, elected through the 2008 General
Election, expressed its resolve to restore the Constitution
15
to its original form. The Senators from the Government
and the opposition demanded scrapping Seventeenth
Constitutional Amendment which was brought about to
16
accommodate a military dictator.
Consequently, in pursuance of the Motions adopted by the
National Assembly on April 10, 2009 and the Senate on
April 29, 2009, the Speaker of the National Assembly
constituted Special Committee of the Parliament on
17
Constitutional Reforms consisting of 27 members.
Senator Mian Raza Rabbani of PPP was elected by the
members of the Committee as its Chairman on June 25,
2009.
The Special Committee had representation from all the
18
political parties in the Parliament. The special committee
renamed itself as the “Parliamentary Committee on
Constitutional Reforms” on June 25, 2009 and proceeded
to frame its Rules of Procedure on June 29, 2009.
The Parliamentary Committee formed its Terms of
Reference as: “The committee shall propose amendments
to the Constitution keeping in view the Seventeenth
Amendment, Charter of Democracy (CoD) and provincial
autonomy, in order to meet the democratic and Islamic
19
aspirations of the people of Pakistan.”
The special Committee asked its members to submit their
proposals for amendments to the Constitution by August
10, 2009. The Committee also invited suggestions /
proposals and amendments from the public at large by
August 10, 2009. The Committee received 982
recommendations / proposals and amendments through
20
this process.
The Parliamentary Committee in addition to its Terms of
Reference, while examining various provisions of the
Constitution, 1973, kept in view the following amongst
21
other criteria:
1. Transparency in system
2. Minimizing individual discretion
3. Strengthening Parliament and Provincial Assemblies
4. Provincial Autonomy
5. Independence of the Judiciary
6. Further strengthening fundamental rights
7. The question of merit
8. Good governance
9. Strengthening of Institutions
The committee held a total number of 77 meetings, with
each meeting at an average lasting 5 hours, thus the
Committee spent about 385 hours during its deliberations.
The Committee proposed amendments to 97 Articles in
the Constitution which were contained in the proposed
22
Constitutional (Eighteenth Amendment) Bill, 2010.
The Committee decided to hold all its proceedings in
camera and no press release was ever issued by the
Committee. The decisions of the Committee were taken by
consensus. However, if in a certain case a particular Party
or Parties were not in a position to move from their stated
positions, but in the interest of a consensus agreed not to
oppose the Committee's decision, it was decided that in
such a case the Party or Parties would reiterate their stated
position without prejudice to the Committee decision,
through a note to be called, “a Note of Reiteration.” In this
way a total number of 11 Notes of Reiteration from various
23
par ties were submitted.
Constitution (Eighteenth Amendment) Bill prepared by the
Parliamentary Committee was passed by both Houses of
the Parliament by more than two thirds majority of each
House. It received the assent of the President on April 19,
2010 and thus became Constitution (Eighteenth
24
Amendment) Act, 2010.
The Eighteenth Amendment amended, altered, modified,
varied, substituted, added, omitted or deleted 97 Articles
15. Prime Minister Gilani's statement. DAWN, September 8, 2008.
16. DAWN, 9 September 2008.
17. CIRCULAR dated 23 June 2009 of National Assembly Secretariat attached with the Report of the Parliamentary Committee dated 31 March 2010
which is
available on the Website of National Assembly of Pakistan.
18. Out of 27 members of the Special Committee, 26 participated, 5 from PPPP, 3 from PML(N), 3 from PML(Q), 2 from MQM, 2 from ANP, 2 from
JUI(F), 1
each from PML(F), BNP(A), JI, NP, PPP(S), NPP, PKMAP, JWP and 1 independent. See Report of the Parliamentary Committee.
19. Report of the Parliamentary Committee which is available on the website of the National Assembly with the Eighteenth Amendment..
20. Ibid.
21. Ibid.
22. Ibid.
23. Ibid.
24. PLD 2010 Federal Statutes 1.
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of Pakistan
of Pakistan
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of the Constitution. It also amended, varied, modified or
omitted Annex, Third, Fourth, Sixth and Seventh Schedules
to the Constitution. In this way it has become the most
comprehensive Amendment since the adoption of the
Constitution in 1973.
The salient features of the Eighteenth amendment are as
under:
i.
The Legal Framework Order, 2002 and its various
amendments in 2002 were declared to have been
made without lawful authority and of no legal effect
and therefore stood repealed.
ii. The Constitution (Seventeenth Amendment) Act,
2003 was repealed.
iii. The 'North West Frontier Province', was renamed as
'Khyber Pakhtunkhwa'.
iv. The definition of 'High Treason' under Article 6 was
substituted to include 'suspension' or 'holding in
abeyance' of the Constitution in addition to
'abrogation' or 'subversion' as acts of high treason.
Even 'attempt' or 'conspiracy' to do so can constitute
high treason. Not only 'abettors' but also
'collaborators' would also be guilty of high treason.
Most significantly clause (2) to Article 6 has been
added to postulate that an act of high treason would
not be validated by any court including the Supreme
Cour t or a High Cour t.
v. Fundamental Rights were added such as:
a. Article 10A was added which provides for fair trial
and due process in criminal trials or determination of
civil rights and obligations.
b. Article 19A was added extending the right to every
citizen to have access to information in all matters of
public importance subject to reasonable
restrictions.
c. Article 25A was added obliging the State to provide
free and compulsory education to all children
between five and sixteen years of age.
vi. Article 58 was substituted omitting clause (b) which
empowered the President to dissolve National
Assembly in his discretion.
vii. The strength of the Senate was increased from 100
to 104, adding 4 nonMuslim members, one from
each Province.
viii. Articles 62 and 63 pertaining to qualification or
disqualification of the members of the Parliament
respectively were substituted restating nearly all the
previous contents of these Articles. The reason
appears to be that the addition, substitution or
variation of most of such qualifications or
disqualifications was brought about by the
Restoration of the Constitution of 1973 Order, 1985
(RCO) or Legal Framework Order, 2002 (LFO). The
qualifications or disqualifications contained in the
original Constitution were very few and were added
by the military dictators (General Zial ul Haq and
General Musharraf) under the aforementioned
instruments.
ix. The power to remove a person from membership of a
House of the Parliament or a Provincial Assembly
has been conferred on “Party Head” under
substituted Article 63A instead of the Parliamentary
leader in the concerned House as was the case
before the substitution. In this way the “Party Head”
even if not a member of any House (Parliament or a
Provincial Assembly) has been empowered to have
a recalcitrant member of his party removed from the
House. This power however has been restricted to
voting on four occasions, which are:
a. election of the Prime Minister or a Chief Minister,
b. vote of confidence or vote of no confidence or
c. a Money Bill or
d. a Constitution (Amendment) Bill
x. Article 70 regarding introduction and passing of Bills
in the Parliament was substituted. Under the new
provision if any differences arise between the two
Houses of the Parliament on any Bill, the House,
where it originate, could refer the Bill to be
considered in the joint sitting of the two Houses and
it can be passed by the majority of the members
present and voting in the joint sitting.
xi. A slight variation in the procedure of passing of the
Money Bills was brought about. When a Money Bill is
presented before the National Assembly, a copy of it
is supposed to be sent to the Senate which can make
recommendation thereon within fifteen days and the
National Assembly is supposed to consider such
recommendation while passing the Bill.
37
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of Pakistan
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xii. The President can, under Article 72, withhold his
assent on a Bill passed by both Houses of the
Parliament and can send it back for reconsideration
within ten days. The Bill would then be considered by
the Parliament in joint sitting and can be passed by
the joint sitting with or without any amendment.
xiii. An important amendment has been made in
Ordinance making power of the President and
Governors under Articles 89 and 128 respectively.
An Ordinance passed by the President or a Governor
can only be respectively extended by a resolution of
a House of the Parliament for a further period of 120
days or by a resolution of the concerned Provincial
Assembly for a further period of 90 days. No further
extension in the period of an Ordinance can now be
made and, if not passed as an Act of the Parliament
or a Provincial Assembly, it will expire at the end of
such extended period. This provision has curtailed
the abuse of Ordinancemaking power under which
Ordinance after Ordinance was being passed ad
infinitum.
xiv. Under substituted Article 91, restriction of two terms
for the office of the Prime Minister was removed. The
Cabinet was held to be collectively responsible to the
Senate and the National Assembly (not to the
National Assembly alone as was the case before).
xv. Another progressive step was the reduction in the
size of the Cabinet, federal as well as the provincial.
According to Article 92, the strength of the Cabinet
including Ministers of State would not exceed 11% of
the total membership of the Parliament. According to
Article 130, the strength of a Provincial Cabinet
would not exceed 15 members or 11% of the total
membership of the concerned Provincial Assembly,
whichever is higher.
xvi. Another positive change was brought about in Article
100. Now the Attorney General is forbidden from
engaging in private practice. In the past, Attorney
General, particularly Syed Sharifuddin Pirzada, had
been notorious in doing private legal practice while
being an Attorney General and obviously he was
accused of exploiting the office of Attorney General
for gain in his private practice. Similar restriction has
also been placed on the office of an Advocate
General of a Province under amended Ar ticle 140.
xvii. The Speaker of a Provincial Assembly can act as
Governor in his absence from Pakistan or for any
other reason under Article 104 of the amended
Constitution.
xviii. Clause (b) of Article 112, which empowered the
Governor to dissolve a Provincial Assembly, subject
to previous approval of the President, in his
discretion, has been omitted. This power had been
repeatedly abused in the past.
xix. Article 116 provided similar provisions for assent to
a Bill of Provincial Assembly by the Governor as had
been provided for the assent of the President to a Bill
of Parliament under amended Article 75 of the
Constitution.
xx. Since the Concurrent Legislative List (with 47
entries) in the Fourth Schedule of the Constitution
would be omitted under this Amendment, the
subjects for legislation were strictly bifurcated
between the Parliament and the Provincial
Assemblies. However concurrent power to legislate
laws with respect to criminal law, criminal procedure
and evidence, have been conferred on the
Parliament and the Provincial Assemblies
specifically by amendment in Article 142 of the
Constitution.
xxi. Although Article 143 was substituted, yet the
substituted article provides that Federal laws would
prevail over the Provincial laws if they are on the
same subject. In this way Federal laws that were
passed on account of the “Concurrent List” before
the enactment of Eighteenth Amendment would
continue and would continue to prevail over the
Provincial laws on the subject on which Provincial
laws have exclusive application after the Eighteenth
Amendment.
xxii. The Council of Common Interests (CCI) was
empowered by amendment to Article 154 by
providing that it would be constituted within 30 days
of a Prime Minister taking oath of his office. The CCI
would have a permanent Secretariat and would meet
once in 90 days. Under Article 157, CCI has also
been empowered to resolve disputes between the
Federal government and a Provincial Government in
respect of generation of electricity or construction of
hydroelectric power stations.
xxiii. In order to strengthen provincial autonomy in
38
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of Pakistan
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financial terms, certain measures have been taken
under the Eighteenth Amendment which include the
following:
a. The Federal government would have to consult the
Provincial Government before constructing a hydro
electric power plant in that Province. (Ar ticle 157).
b. The share of a Province in any Award of National
Finance Commission (NFC) would not be less than
the share of that Province in the previous Award.
(Article 160).
c. Both the Federal and Provincial Finance Ministers
would be monitoring the implementation of the
Award of NFC. (Ar ticle 160).
d. The net proceeds of Federal excise duty on oil and
natural gas and royalty collected by the Federal
Government on natural gas would be paid to the
Province in which wellhead of oil or natural gas are
situated. (Ar ticle 161).
e. The mineral oil and natural gas within a Province or
the territorial waters adjacent thereto would vest
jointly and equally in that Province and the Federal
Government (Ar ticle 172).
xxiv. Provinces have been authorized to raise domestic or
international loans on the security of the Provincial
Consolidated Fund within the limits and conditions
specified by the National Economic Council.
xxv. A High Court for Islamabad Capital Territory was to
be established under Article 175 of the amended
Constitution.
xxvi. A new procedure for appointment of judges of the
Supreme Court and the High Courts was prescribed
under the newly added Article 175A reproduced
below:
175A.Appointment of Judges to the Supreme
Court, High Courts and the Federal Shariat Court:
a. There shall be a Judicial Commission of Pakistan,
hereinafter in this Article referred to as the
Commission, for appointment of Judges of the
Supreme Court, High Courts and the Federal Shariat
Cour t, as hereinafter provided.
b. For appointment of Judges of the Supreme Court, the
Commission shall consist of –

Chairman: Chief Justice of Pakistan

Member: the most senior Judge of the Supreme
Court.

Members: a former Chief Justice or a former Judge
of the Supreme Court of Pakistan to be nominated by
the Chief Justice of Pakistan, in consultation with the
two member Judges, for a period of two years;

Member: Federal Minister for Law and Justice;

Member: AttorneyGeneral for Pakistan; and

Member: a Senior Advocate of the Supreme Court of
Pakistan nominated by the Pakistan
B a r
Council for a term of two years.
c. Notwithstanding anything contained in clause (1) or
clause (2), the President shall appoint the most
senior Judge of the Supreme Court as the Chief
Justice of Pakistan.
d. The Commission may make rules regulating its
procedure:

For appointment of judges of a High Court, the
Commission in clause (2) shall also include the
following, namely:

Member: Chief Justice of the High Court to which the
appointment is being made;

Members: two most senior Judges of that High
Court.

Members: The Provincial Minister for Law; and

Member: a senior advocate to be nominated by the
Provincial Bar Council for a period of two years.
Provided that for appointment of Chief Justice of a
High court, the most senior Judge of the Court shall
be substituted by a former Chief Justice or former
Judge of that Court, to be nominated by the Chief
Justice of Pakistan in consultation with the two
member Judges of the Commission in clause (2);
Provided further that if for any reason the Chief
Justice of High court is not available, he shall also be
substituted in the manner as provided in the
foregoing proviso.
e. For appointment of Judges of the Islamabad High
Court, the Commission in clause (2) shall also
include the following, namely:

Member: Chief Justice of the Islamabad High Court;
and

Member: the most senior Judge of that High Cour t
39
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of Pakistan
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Provided that for initial appointment of the Judges of
the Islamabad High Court, the Chief Justices of the
four Provincial High Courts shall also be members of
the Commission:
Provided further that subject to the foregoing
proviso, in case of appointment of Chief Justice of
Islamabad High Court, the provisos to clause (5)
shall, mutatis mutandis, apply.
f.
For appointment of Judges of the Federal Shariat
Court, the Commission in clause (2) shall also
include the Chief Justice of the Federal Shariat Court
and the most senior Judge of that Court as its
members:
Provided that for appointment of Chief Justice of
Federal Shariat Court, the provisos to clause (5)
shall, mutatis mutandis, apply.
g. The Commission by majority of its total membership
shall nominate to the Parliamentary Committee one
person, for each vacancy of a Judge in the Supreme
Court, a High Court or the Federal Shariat Court, as
the case may be.
h. The Parliamentary Committee, hereinafter in this
Article referred to as the Committee, shall consist of
the following eight members, namely:
1. four members from the Senate; and
2. four members from the National Assembly
i.
Out of the eight members of the Committee, four
shall be from the Treasury Benches, two from each
House and four from the Opposition Benches, two
from each House. The nomination of members from
the Treasury Benches shall be made by the Leader of
the House and from the Opposition Benches by the
Leader of the Opposition.
j.
Secretary, Senate shall act as the Secretary of the
Committee.
k. The Committee on receipt of a nomination from the
Commission may confirm the nominee by majority
of its total membership within fourteen days, failing
which the nomination shall be deemed to have been
confirmed:
Provided that the Committee may not confirm the
nomination by threefourth majority of its total
membership within the said period, in which case
the Commission shall send another nomination.
l.
The Committee shall forward the name of the
nominee confirmed by it or deemed to have been
confirmed to the President for appointment.
m. No action or decision taken by the Commission or a
Committee shall be invalid or called in question only
on the ground of the existence of a vacancy therein
or of the absence of any member from any meeting
thereof.
n.
The Committee may make rules for regulating its
procedure.
xxvii. The minimum age for appointment as judges of
High Courts under Article 193 was raised from
forty to forty five years and would be deemed to be
so from 21 August 2002 (the date when LFO was
promulgated).
xxviii. Article 209 has been amended empowering
Supreme Judicial Council to take notice of the case
of a judge who is incapable of performing the duties
of his office by reason of physical or mental
incapacity or has been guilty of misconduct.
However the power appears to be conferred to the
extent of holding an inquiry but the reference for
removal of a judge continues to be the exclusive
power of the President.
xxix. The procedure for appointment as Chief Election
Commissioner (CEC) was changed. The
amendment in Articles 213, 215, 216, 218, 219
and 221 provided a new machinery for holding
elections.
In the first place, the responsibilities of Chief
Election commissioner (CEC) were transferred to
the Election Commission of Pakistan (ECP), which
consisted of CEC as the Chairman and four
members, one from each Province. Secondly, the
CEC and the members of ECP (who were to be
former judges of High Courts) were to be selected
by a Parliamentary Committee consisting of no
more than twelve members, half from the Treasury
Benches and half from the Opposition Parties in the
Parliament.
40
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of Pakistan
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The Parliamentary Committee would be constituted
by the Speaker of the National Assembly.
One third of the members of the Parliamentary
Committee would be drawn from the Senate.
The Prime Minister, in consultation with the Leader
of the Opposition in the National Assembly, would
forward three names for the appointment of CEC
and three names each for each appointment of
members of ECP for hearing and confirmation of
one person for each. If no consensus was reached
between the Prime Minister and the Leader of the
Opposition, each would forward separate lists to
the Parliamentary Committee for consideration
which may confirm any one name for each of the
offices concerned.
In this way, a permanent Election Commission
would be constituted with the Chairman and each
member to serve for a term of five years. Neither the
Chairman nor a member of the ECP could be
removed except through the procedure provided
under Article 209 of the Constitution for removal of
judges of the superior Cour ts.
xxx. Article 224 was amended and certain substantial
changes were brought about. On the completion of
the term of an Assembly, National or Provincial, the
elections to the Assembly would be held within
sixty days of such expiry.
A new procedure for appointment of caretaker
government was adopted. The President would
appoint caretaker Prime Minister and a caretaker
Cabinet in consultation with the Prime Minister and
the Leader of the Opposition in the outgoing
National Assembly.
Similarly, the Governor would appoint caretaker
Chief Minister and Caretaker Cabinet for the
Province in consultation with the Chief Minister and
the Leader of the Opposition in the outgoing
Provincial Assembly. However the members of the
Federal and Provincial caretaker Cabinets would be
appointed on the advice of the caretaker Prime
Minister or the caretaker Chief Minister, as the
case may be. The members of the caretaker
Cabinets and their immediate family members
(Spouse and children) would not be eligible to
contest elections to any of the assemblies.
xxxi. All elections under the Constitution, except those of
the Prime Minister and the Chief Minister, would be
held by secret ballot under Ar ticle 226.
xxxii. In respect of proclamation of emergency under
Article 232, it has been provided that if such
emergency is imposed on account of internal
disturbances beyond the powers of a Provincial
Government to control, a Resolution from the
Provincial Assembly of that Province would be
required. All such Proclamations would have to be
placed before both Houses of the Parliament for
approval by each House within ten days.
xxxiii. Article 243 was substituted providing for the
Federal Government to have control and command
of the Armed Forces with the President as the
Supreme Commander. The appointment of all
Chiefs of Staff of Armed Forces and their Chairman
would be made by the President on the advice of the
Prime Minister. The requirement of advice by the
Prime Minister appears to be redundant because all
acts and appointments by the President under the
Constitution have to be made on the advice of the
Prime Minister. Nevertheless, this requirement has
been stated keeping in view the chequered history
of appointment of the Chiefs of armed forces in the
past whereby such appointments had frequently
become a course of dispute or conflict between the
President and the Prime Minister.
xxxiv. By amendment in Article 270A, the name of and
reference to General Zia ul Haq was deleted.
xxxv. Article 270AA was substituted with the following
effects:
a.
The Proclamation of Emergency by General
Musharraf on October 14, 1999, the Provisional
Constitution Order of 1999, the Oath of Office
(Judges) Order, 2000, Chief Executive's Orders of
2002 making amendments in the Constitution
through Legal Framework Orders of 2002 were
declared as having been made without lawful
authority and of no legal effect regardless of any
judgment of the Supreme Court or a High Court in
this behalf.
b.
All laws including President's Orders, Acts,
Ordinances, Chief Executive Orders, regulations,
41
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Page 43
notifications, rules, orders or byelaws made
between October 12, 1999 and October 31, 2003
were saved and continued in force until altered,
repealed or amended by the appropriate Legislature
or the competent authority.
c.
Judges of the Supreme Court and the High Courts
who had been deposed for not taking oath or being
given oath under Oath of Office (Judges) Order,
2000 would be deemed to have continued to hold
office.
d.
All orders made, proceedings taken, appointments
made and acts done by any authority in purported
exercise of authority under a law were saved and
validated.
e.
On the omission of the concurrent Legislative List,
the process of devolution of the matters contained
in the said list to the Provinces would be completed
by June 30, 2011.
f.
An Implementation commission would be
constituted within 15 days of the commencement
of the Eighteenth Amendment to oversee the
devolution process.
xxxvi. The Objectives Resolution, which was made
“Annex” to the Constitution under the Eighth
amendment in 1985, the word “freely” in respect of
practice and propagation of religion was
deliberately omitted by General Zia ul Haq. It goes to
the credit of the Eighteenth Amendment that the
word “freely” was inserted in accordance with the
original Objectives Resolution.
xxxvii.The Concurrent Legislative List including its 47
entries was omitted. However some of its entries
(10 of them) like electricity; major ports; census,
legal, medical and other professions; and inter
provincial matters etc. were added to Part II of the
Federal Legislative List.
Eighteenth Amendment Challenged
It has been discussed above that the Eighteenth
Amendment introduced Article 175A providing for a
detailed method of appointment of judges of the Supreme
Cour t of Pakistan and the High Cour ts.
It provided for a two steps process. The initial selection for
such appointment had to be made by the Judicial
Commission constituted under Article 175A and the same
had to be confirmed by a Parliamentary Committee of eight
members drawn from the government and the opposition
from both Houses of the Parliament. Thus the process of
appointment became complex and politicized.
Many a Bar Associations including Supreme Court Bar
Association of Pakistan decided to challenge Article 175A
being ultra vires of the basic features and basic structure of
the Constitution. The Chief Justice formed a Bench of all
the seventeen judges of the Supreme Court with himself as
its head. The hearings on these petitions were held for
several months and the entire court was bogged down
with the hearing of these cases.
The cases were not finally decided and an interim order
25
was passed on October 21, 2010; extracts of which are
reproduced below:
“10. Most of the petitioners who had challenged
Article 175A of the Constitution raised serious
issues regarding the composition of the Judicial
Commission and Parliamentary Committee and
veto power given to the latter. It was contended that
there was a wellknown practice, when the
unamended provision was in vogue that Chief
Justice would consult most senior Judges of the
Supreme Court before finalizing the
recommendations. Instead of bringing any drastic
change, the said practice should have been
formalized. It was, therefore, suggested during
arguments that to ensure that the appointment
process is in consonance with the concept of
independence of judiciary, separation of powers
and to make it workable, Article 175A may be
amended in following terms:
(i)
That instead of two most senior Judges of the
Supreme Court being part of the Judicial
Commission, the number should be increased to
four most senior Judges.
(ii) That when a recommendation has been made by
the Judicial Commission for the appointment of a
candidate as a Judge, and such recommendation is
not agreed/agreeable by the Committee of the
Parliamentarians as per the majority of 3/4th, the
25. Nadeem Ahmed, Advocate v. Federation of Pakistan (PLD 2010 S.C.1165).
42
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of Pakistan
Page 44
Committee shall give very sound reasons and shall
refer the matter back to the Judicial Commission for
reconsideration. The Judicial Commission upon
considering the reasons if again reiterates the
recommendation, it shall be final and the President
shall make the appointment accordingly.
(iii) That the proceedings of the Parliamentary
Committee shall be held in camera but a detailed
record of its proceedings and deliberations shall be
maintained."
"14. This is for the first time ever in our national, judicial
and constitutional history that such a serious
challenge has been thrown by a cross section of
society including some premier Bar Associations
of the country to a legislation which was no
ordinary piece of legislation but was a
constitutional amendment. By making this
unanimous reference to the Parliament for re
consideration, we did not consider the sovereignty
of the Parliament and judicial independence as
competing values. Both the institutions are vital and
indispensable for all of us and they do not vie but
rather complement each other so that the people
could live in peace and prosper in a society which is
just and wherein the rule of law reigns supreme. We
can also not lose sight of the fact that we, as a
nation, are passing through testing times facing
multidimensional challenges which could be best
addressed only through measures and methods
where societal and collective considerations are
the moving and driving force. We had two options;
either to decide all these petitions forthwith or to
solicit, in the first instance, the collective wisdom of
the chosen representatives of the people by
referring the matter for reconsideration. In adopting
the latter course, we are persuaded primarily by the
fact that institutions may have different roles to
play, but they have common goals to pursue in
accord with their constitutional mandate."
"15. Notwithstanding the pendency of these petitions,
the constitutional provisions under challenge have
come into effect. Prior to the Eighteenth
Amendment, several appointments of Additional
Judges have been made in various High Courts and
the issue of fresh appointments is likely to come up
in near future. In these circumstances and till such
time these petitions are decided, Article 175A has
to be given judicial enforcement by way of a
construction which is in consonance with the other
constitutional provisions underpinning judicial
independence. While doing so we take note of the
fair stand taken by Mian Raza Rabbani, Chairman of
the Special Committee of the Parliament for
Constitutional Reforms and the AttorneyGeneral
for Pakistan to which reference has been made in
Para12 above and hold that Article 175A shall be
given effect to in the manner as under:
(i)
In all cases of an anticipated or actual vacancy a
meeting of the Judicial Commission shall be
convened by the Chief Justice of Pakistan in his
capacity as its Chairman and the names of
candidates for appointment to the Supreme Court
shall be initiated by him, of the Federal Shariat Court
by the Chief Justice of the said Court and of the
High Cour ts by the respective Chief Justices.
(ii) The Chief Justice of Pakistan as head of the Judicial
Commission shall regulate its meetings and affairs
as he may deem proper.
(iii) The proceedings of the Parliamentary Committee
shall be held in camera but a detailed record of its
proceedings and deliberations shall be maintained.
The Parliamentary Committee shall send its
approval of recommendations of the Judicial
Commission to the Prime Minister for onward
transmission to the President for necessary orders.
If the Parliamentary Committee disagrees or rejects
any recommendations of Judicial Commission, it
shall give specific reasons and the Prime Minister
shall send copy of the said opinion of the
Committee to the Chief Justice of Pakistan and the
same shall be justiciable by the Supreme Cour t.”
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of Pakistan
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Nineteenth Amendment
As a consequence of order of the Supreme Court dated
October 21, 2010, Constitution (Nineteenth Amendment)
Act, 2010 was passed by the Parliament at the end of
December 2010 and was assented to by the President on
January 1, 2011. Certain other necessary amendments
were also made in the Constitution in this Amendment Act
26
discussed as under:
a.
Article 81 was amended to include the judges of the
Islamabad High Court amongst the persons whose
remuneration and expenditures would be charged
upon the Consolidated Fund. Similarly, the
administrative expenses incurred and remuneration
payable to officers and servants of the Supreme
Court, the Islamabad High Court, the department of
Auditor General, the Office of the Chief Election
Commissioner and of the Election Commission and
the Secretariats of the Senate and the National
Assemblies would also be charged upon the
Federal Consolidated Fund.
b.
Article 175 was amended. The Islamabad High
Court was included within the meaning of the
expression 'High Cour t'.
c.
Article 175A was amended and the number of
judges of the Supreme Court on the Judicial
Commission of Pakistan was enhanced from two to
four senior most judges. The qualifications of a
member of the Judicial Commission who was to be
the nominee of the concerned Provincial Bar
Council were clarified to mean an advocate having
not less than fifteen years practice in the High
Court. It was also provided that the Parliamentary
Committee for confirmation of judges would
consist of only the members of the Senate if at the
given time the National Assembly stood dissolved.
It was also provided that the Parliamentary
Committee for appointment of judges may not
confirm the nomination recommended by three
fourth majority of its total membership within a
period of 14 days after such nomination is received
from the Judicial Commission. However, the
Parliamentary Committee has to record reasons for
not confirming any nomination forwarded by the
Judicial Commission. It was also provided that if a
nomination is not confirmed by the Parliamentary
Committee, it would forward its decision with
reasons recorded to the Judicial Commission
through the Prime Minister. The Judicial
Commission in the event of a nomination not being
confirmed could send another nomination.
d.
Article 182 was amended and it was provided that
the appointment of ad hoc judges of the Supreme
Court was to be made by the Chief Justice of
Pakistan in consultation with the Judicial
Commission of Pakistan.
e.
Article 213 was also amended and the
Parliamentary Committee for appointment of the
Chairman and the Members of the Election
Commission of Pakistan is required to consist of
twelve members out of which one third would have
to be from the Senate.
f.
Article 246 was amended to include Tribal Areas
adjoining to Lakki Marwat and Tank Districts within
the meaning of Federally Administered Tribal Areas.
g.
It is noticeable that the Supreme Court in the light of
its order dated October 21, 2010 succeeded in
getting two of its judges added to the Judicial
Commission which gave the judges in the Judicial
Commission above two third majority.
26. PLD 2011 Federal Statutes 19.
44
of Pakistan
of Pakistan
Page 46
Twentieth Amendment
During the course of hearing of a number of cases in
relation to the Election Commission of Pakistan, certain
anomalies were discovered in respect of the provisions of
the Constitution regarding Election Commission of
Pakistan due to the Eighteenth Amendment in the
Constitution establishing Election Commission of Pakistan
consisting of a permanent Chairman and four members for
a period of five years.
Many provisions in these Chapters (Chapters 1 and 2 of
PartVIII) of the Constitution were left unamended with the
result that several anomalies in the functions of the
Election Commission, and what was previously the Chief
Election Commissioner, became obvious and apparent.
In order to resolve that, Constitution (Twentieth
Amendment) Act, 2010 was promulgated on February 28,
27
2012. As a result, the following modifications in the
Constitution came about:
i. Article 48 of the Constitution was amended providing
for holding of General Elections to the National
Assembly and appointment of Caretaker Cabinet in
accordance with the provisions of Article 224 or as
the case may be, Ar ticle 224A.
ii. Articles 214, 215 and 216 were amended to bring the
provisions of these Articles in the proper context of
Election Commission of Pakistan in respect of Chief
Election Commissioner.
iii. Article 224 was amended in which a proviso was
added that if the Prime Minister or a Chief Minister and
their respective Leader of the Opposition do not agree
on any person to be appointed as Caretaker Prime
Minister or the Caretaker Chief Minister, as the case
may be, then the provisions of Article 224A should be
followed.
iv. Another amendment was made in Article 224
concerning reserved seats for women or nonMuslim
in the National Assembly or a Provincial Assembly. It
was provided that if at any time the party list
submitted by a political party for such reserved seats
at the time of general elections was exhausted, the
concerned political party might submit a nominee for
any vacancy which might occur thereafter.
v. Article 224A was inserted in the Constitution and it
was provided that if the Prime Minister and the Leader
of the Opposition in the outgoing National Assembly
do not agree on any person to be appointed as the
Caretaker Prime Minister within three days of the
dissolution of the National Assembly then they shall
forward two nominees each to a Committee to be
immediately constituted by the Speaker of the
National Assembly comprising eights members of
the outgoing National Assembly or the Senate or both
having equal representation from the Treasury and
the Opposition. Similar provisions were made in
respect of a Chief Minister and the Leader of the
Opposition in the outgoing Provincial Assembly in
respect of appointment of Caretaker Chief Minister of
the concerned Province. The Committee so
constituted in this behalf had three more days to
nominate a Caretaker Prime Minister or a Caretaker
Chief Minister as the case may be in case the
Committee so constituted was unable to decide the
matter in the aforesaid period, the names of the
nominees would be referred to the Election
Commission of Pakistan for final decision within two
days. However, the incumbent Prime Minister and the
incumbent Chief Minister would continue to hold
office till appointment of the Caretaker Prime Minister
or the Caretaker Chief Minister as the case may be.
27. PLD 2012 Federal Statutes (Supplement I) 355.
45
of Pakistan
of Pakistan
Page 47
Twenty First Amendment
The Twenty First Amendment was a reaction to the brutal
,
acts committed by terrorists on December 16 2014 in the
Army Public School, Peshawar, where more than 150
children and their teachers were massacred. An All Parties
Conference was called by the Prime Minister in which the
Chief of Army Staff and ISI Director General participated
and a National Action Plan (NAP) was launched. Out of the
20 points of the NAP, one was the establishment of military
courts for trial of civilians for acts of terrorism in the name
of religion or sect.
The Twenty First Amendment was hurriedly passed on
January 6, 2015. The salient features of this amendment
were:
i. This Amendment was made for a period of two years
from the date of its commencement and would cease
to be part of the Constitution and would stand
repealed on the expiration of said period.
ii. A proviso was added as Clause (3) of Article 175 of
the Constitution wherein certain laws were placed
beyond the jurisdiction of the High Courts under
Article 199 and the Supreme Court under Article 184
(3) of the Constitution. Hence, any matter arising out
of such statutes would not be justiciable before the
High Cour ts and the Supreme Cour t.
iii. The four statutes referred to in the proviso to Clause
(3) of Article 175 are the Pakistan Army Act, 1952,
The Pakistan Air Forces Act, 1953, The Pakistan Navy
Ordinance, 1961 and the Protection of Pakistan Act,
2014. These statutes were added to the First
Schedule in sub par t III of Par t I after Sr. No.5
TwentyFirst Amendment Challenged
A number of Bar Associations throughout Pakistan and
certain individuals challenged the Twenty First Amendment
to be declared invalid being violative of basic structure /
features of the Constitution.
It has been mentioned above that the cases in which
Eighteenth Amendment was challenged in the year 2010,
only an interim order was passed on October 21, 2010 but
all these cases were kept pending.
However, the Supreme Court decided to hear all the cases
together in which the Eighteenth and Twenty First
Amendments were challenged before the full court of 17
judges.
After arguments over a couple of months, judgment in
these cases was announced on August 5, 2015 holding
that all the petitions were maintainable by a majority of 13
to 4, that the petitions against Eighteenth Amendment were
dismissed by majority of 14 to 3 and that the petitions
against Twenty First Amendment were dismissed by a
majority of 11 to 6.
Consequently, Article 175A added by the Eighteenth and
Nineteenth Amendments and military courts being
established under the Twenty First Amendment were
28
upheld as valid under the Constitution.
28. District Bar Association Rawalpindi vs. Federation of Pakistan and others (PLD 2015 Supreme Court 401)
46
of Pakistan
of Pakistan
Page 48
Conclusion
From the above narration it is selfevident that the Constitution of Pakistan has been repeatedly and frequently
amended.
Some of these amendments particularly the Eighth and the Seventeenth Amendments had virtually changed the face
of the
Constitution. The Constitution became a different legal and political document than it was when originally adopted
in 1973. Its
structure. particularly in terms of provisions relating to the parliamentary system of government and the provincial
autonomy,
had undergone a complete volteface.
Another important feature of these amendments was that only 18 out of 65 Articles amended by the RCO were
modified by the
Eighth Amendment.
Similarly, only 9 out of 29 Articles introduced by LFO were modified by the Seventeenth Amendment.
Thus Generals ZiaulHaq and Pervez Musharraf were able to incorporate amendments in as many as 67 Articles of
the
Constitution without any meaningful parliamentary debate on these amendments.
The validity of these Amendments was based on the validation affirmation provisions set out in Article 270A (for
the RCO) and
Ar ticle 270AA (for the LFO).
In this way, the Constitution of Pakistan has a unique, rather dubious, distinction of a history of its amendments,
some by the
Parliament and others by the military rulers, who made such amendments with the primary purpose of perpetuating
themselves
in power.
First seven Amendments were passed during the government of Zulfikar Ali Bhutto. The Eighth Amendment was
passed in 1985
during the Prime Ministership of Muhammad Khan Junejo but under the gaze of General Zia. The Tenth
Amendment was also
passed during Junejo government.
The Twelfth Amendment was passed during the first government of Nawaz Sharif. Thirteenth, Fourteenth and
Sixteenth
Amendments were passed during the second government of Nawaz Sharif.
The Seventeenth Amendment was passed during Jamali Government but obviously at the behest of General
Musharraf.
The Eighteenth Amendment was an effort to bring about major corrections in the Constitution which were needed
because of
meddling of the military dictators from time to time particularly under Eighth and Seventeenth Amendment.
The entire Constitution was reviewed by the Constitution Committee working on the draft of Eighteenth amendment
and many
anomalies that had appeared in the Constitution were removed. Similarly, the provisions which have been specially
incorporated
in the Constitution for perpetuation by the military rulers like ZiaulHaq and Musharraf were deleted from the text
of the
Constitution
One of the main impacts of the Eighteenth Amendment is that the Provincial Governments have been given greater
autonomy
under the Constitution by abolishing the Concurrent List and certain other similar provisions. The result of the
abolition of
Concurrent List is that subjects of legislation, which were then in the common competence of Federal and Provincial
legislatures, were now given exclusively to the Provincial legislature.
The Eighteenth Amendment reduced the mandate of several Federal Ministries with corresponding increase in the
role and
responsibilities of the related institutions at the provincial level.
As discussed above, Nineteenth Amendment arose out of the interim order of the Supreme Court passed on October
21, 2010 in
the cases challenging Eighteenth Amendment.
47
of Pakistan
of Pakistan
Page 49
Twentieth Amendment was necessitated by the need to provide for interim governments after the dissolution of
National and
Provincial Assemblies to be headed by caretaker Prime Minister and caretaker Chief Ministers.
The TwentyFirst Amendment was a consequence of the heinous acts of terrorism committed on the children
studying at the
Army Public School, Peshawar on December 16, 2014. A National Action Plan (NAP) was agreed between the
leadership of the
Political Parties and the Armed Forces. One of the points in NAP was creation of military courts to try civilians for
terrorist acts for
religious or sectarian reasons.
A peculiar feature of the history of the Constitutional Amendments is that most of the Amendments were passed
hurriedly
without reference to Parliamentary Committees. Even there were no formal readings of the amendment Bills and the
vote in both
Houses of Parliament on such Bills which were rushed on the basis of brute majority.
In the case of Fourth Amendment, the opposition members were physically thrown out of the Parliament at the time
of the
passing of the Amendment. An Amendment Bill was moved and passed around midnight. Even the parliamentarians
did not have
the copy of the Bill before it was actually moved in the Parliament.
Where there was an impression that the amendment Bill would not be favoured by the President or the
Establishment,
clandestine strategies were adopted, particularly in case of Thirteenth and Fourteenth Amendments, so that the
Establishment
would not have time to react and defeat such Amendment Bills.
The Eighth Amendment was passed after lengthy Parliamentary debate spread over six to eight weeks. There was
some
Parliamentary debate over the Second and Fifth Amendment. The Sixth Amendment, which was meant to favour
one person,
was passed clandestinely without any debate. The Seventeenth Amendment was deliberately rushed through the
Parliament
with Establishment breathing down the neck of the Parliament in order to ensure that it was passed by both Houses
before the
holding of the SAARC Conference in the first week of January 2004.
The Eighteenth Amendment was passed after a lengthy deliberation by the members of the Constitution Committee,
representing all the political parties in the Parliament. However, no debate took place in the Parliament before
passing the
Eighteenth Amendment. Similarly, Nineteenth, Twentieth and Twenty First Amendments were passed without
debate in the
Parliament.
Hence, in Pakistan, the convention of Parliamentary debates, an essential feature of Parliamentary democracy, is yet
to develop.
It has been mainly stifled by the military rulers but unfortunately some of the civilian rulers have not fared much
better.
48
of Pakistan
of Pakistan
Page 50
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278, F8, Postal Code: 44220, Islamabad, Pakistan
Lahore Office: P. O. Box 11098, L.C.C.H.S, Postal Code: 54792, Lahore, Pakistan
Email: info@pildat.org | Website: www.pildat.org
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