Constitution Of Pakistan 1973

Constitution Of Pakistan 1973

1.      The Constitution of Islamic Republic of Pakistan 1973 (as amended upto date).

What is constitution? Constitution does mean structure and composition.Its ordinary meaning is composition. According to political science it means structure of the government. Legally it means an instrument which gives the structure of government and which is generally considered supreme. It is in writing generally except British constitution most part of which is unwritten. The entire rest world has written document, which is called constitution. It provides structure of government. State contains population, government, people, and sovereignty. Government of the people runs the affairs of state. Government has three organs, i.e., legislation which is parliament, executive consists on President and Prime Minister, and judiciary which are courts.

Legislation is the body, which makes the laws. People link to keep them together. Government rules and runs affairs of state by policy decisions and serves and helps the people. Constitution is considered supreme law of the land/state. Its organs are relationship with people.

Constitution of Islamic Republic of Pakistan consists on 12 parts, 1 annexure, and 7 schedules. 280 Articles are distributed in 12 parts. Prior to these parts there is preamble then parts come.

Brief detail of entire 12 parts is as follows:

1.      Part I.        Introduction, republic and its territory, Islamic Religion, objective resolution etc.

2.      Part II.       Fundamental Rights and Principles of policies.

3.      Part III.     Federation of Pakistan, President, Parliament, Federal Government etc.

4.      Part IV.     Provinces, Governor, Provisional Assemblies, and Provincial Governments.

5.      Part V.      Relation with Federation and Provinces.

6.      Part VI.     Finance, property, and contracts.

7.      Part VII.    Courts, judicature, or judiciary.

8.      Part VIII.   Elections which are related to federation.

9.      Part IX.     Islamic provisions.

10.  Part X.       Emergency.

11.  Part XI.     Amendments in constitution.

12.  Part XII.    Miscellaneous.

Annexure contains objective resolution.

Detail of Schedules is as under:

1.      Schedule I.            Exempted laws.

2.      Schedule II.           Election of President.

3.      Schedule III.         Oath of officers.

4.      Schedule IV.         Distribution of power.

5.      Schedule V.          Salaries of judges.

6.      Schedule VI.         Special laws. These laws can’t be amended before the sanctioning of the President.

7.      Schedule VII.        Special laws. These laws can’t be amended before the sanctioning of the President.

Fundamental rights are those which are recognized and protected by the society. They are different from legal rights which law protects. Maintenance of child is legal right while love with parents or respect them are social thus fundamental rights. Out of these rights certain rights are placed or put in the constitution, which is supreme law of the land. In this way we give them more importance. Rights placed in constitution are not taken as ordinary. Another ordinary law can change legal right or can reduce its importance, but ordinary law can never repeal the constitutional law.

Ordinary law cannot change provisions of the constitution. So it is more protected. Constitution is amended by special process, which is not too easy.

Need for putting them into constitution: Since Fundamental Rights are more important so there is need to put them in constitution. Reasons are as follows:

1.      Most important: There are certain rights, which are most important than others like life, property, and sale of property etc. Animals have not regard of progress. We have regard of progress and we take it from the last development.

2.      Better protection: Fundamental Rights are better protected because they are made part of constitution.

3.      Restriction on government: In the entire world generally and in Pakistan particularly, the political situation normally demands some restrictions on the power of government. There are two problems, i.e., how the people are controlled and how those are controlled who control people. Government has more power. If the government is not given such power or it is less, government cannot control the people and if more power is given, government can take away rights of people. Government has no power to take away such rights. Government has law-making authority and can change all laws but it is not easy task. Opposition can survive only if such restriction is imposed.

4.      Islamic importance: We are an Islamic state, majority of us is Muslim. There are certain minorities. If there is no such protection, majority can easily dominate minority crucially and adversely. So there is need having fundamental rights as constitutional rights and with relation to her protection there is a clause in Article 8 of the constitution, which provides that laws inconsistent with or in derogation of fundamental rights are void.

Extent of Fundamental Rights: There is not absolute freedom at all in the world. There is right of life but during war many people are put into war. Peace cannot be achieved on the price of disintegration. Child is not free such as adult. He may be kidnapped. He is kept out of the reach of medicines. No one is above the law or free absolutely. We are slaves of rule. Being citizen we deserve protection. We have rights only in respect of our duties. Discipline, order, or duty brings us prosperity, progress, betterment, and happiness whereas in-discipline brings us poverty and disorder. Time is most import thus must be protected. All Fundamental Rights are subject to some restrictions.

Enforcement and Protection: Keeping in view of the importance and need of the Fundamental Rights they are required to be protected in the manners as:

1.      Protection of Fundamental Rights: Any right or protection is meaningless if it is not enforced. Constitution provides its enforcement. There are two provisions provided in constitution. Article 199(1)(c) provides jurisdiction of High Court. Certiorary, Mandamus, Prohibition, Quo Warranto, and Habeas Corpus are the writ available with High Court. On the application of any aggrieved person, High Court makes an order giving such directions to any person or authority for the enforcement of any of the Fundamental Rights conferred by constitution. Article 184(3) is related with jurisdiction of Supreme Court that Court may declare any law invalid which is in contrast of Fundamental Rights.

2.      Suspension of Fundamental Rights: Fundamental Rights are not absolutely unlimited. Certain limits are imposed on them. Article 233 provides the grounds of the suspension of Fundamental Rights during emergency period. Out of 20 Fundamental Rights 6 are automatically suspended if emergency is declared. Rights of provinces are affected. Federal system is converted into unitary system. Remedy or proceeding in any Court against the rest of Fundamental Rights, which are 14 out of 20, may be suspended by order of President with relation to others.

Fundament Rights: They can be categorized into three kinds, as follows:

1.      Rights relating to person under Article 9-14.

2.      Civil liberties/rights or political freedom:

(1)   Civil or political liberties/rights dealt in Articles 15, 16, 17, and 19.

(2)   Economic rights/liberties are stated in Articles 18, 23, and 24.

(3)   Religious rights are guaranteed in Articles 20, 21, and 22.

3.      Non-discriminatory rights or equality is provided in Articles 25, 26, and 27.

Fundamental Rights: Those rights which are inherited since the time immemorial, not given by the society, but only protected in constitution are called fundamental rights. Rights held to be justifiably belonging to any person. Constitution of Islamic Republic of Pakistan has provided certain Fundamental Human Rights under Part II, Chapter I, which are as follows:

Inconsistent laws: Any law, usage, or custom which has force of law but inconsistent with the rights protected by the Constitution, under Article 8 of constitution shall be void and could not attain the force of law, to the extent of such inconsistency.

1.      Personal rights: Articles from 9 to 14 provide personal rights to the people of Pakistan such as:

1.      Security of person: Liberty of life is recognized which cannot be taken away unless law demands. Only law can take life and property.

2.      Safeguards as to arrest and detention: Safeguards against arrest and detention are provided. It is to arrest a person to deprive him of his liberty by some lawful authority, for the purpose of compelling his appearance to answer a criminal charge or as a method of execution. Detention means custody or confinement of offenders. Law enforcing or arresting authority shall inform the detained person the reasons of such arrest, as soon as, possible. Detained person may also consult lawyer of his own choice. He cannot be deprived from his legal right. Person can be arrested and detained only in consequence of offence. Police Officer may arrest criminals.

Person who is detained must be produced before Magistrate within 24 hours after such detention excluding the time consumed in journey. Preventive detention is not liable to the provisions of arrest and detention. Laws for preventive detention can be made only to deal with national integrity, security, defence, external affairs, public order, maintenance, and supply of services. This detention may extend to maximum three months unless Review Board authorizes it. Supply does mean life commodities such as food or petroleum and services mean facility of transport, mail, and rail etc. Authority is bound to inform the detainee within 15 days from the date of detention, the grounds, on which the order has been made. Review Board shall be composed on, in case of federal matter, one-chairman along-with 2 members. Chief Justice of Supreme Court shall make this appointment. But in case of provincial matter, Chief Justice of High Court shall compose such board. Government shall not interfere. All documents relating to detention are to be produced before Review Board unless they are sensitive. Within 24 months, detention shall not exceed from 8 months, in case of act against public order or 12 months in any other case. Subsistence allowance is admissible to the detainees belonging to common public. It objects to allow common person to remain or take part in politics. Review Board is responsible to determine the place of detention.

3.      Prohibition of slavery and force labour: Slavery and force labour shall remain unlawful thus prohibited. Child labour is also prohibited. Compulsory service and punishment is not covered under this provision except law for public purpose. Compulsory service should not be of cruel nature or incompatible with human dignity.

4.      Protection against retrospective punishment: Generally law takes effect from the date enacted. But in some cases it may take place from back dates. Retrospective enforcement is not considered good enforcement. It can be used against somebody negatively. If the use of necktie was not unlawful and a person has been using it since last ten years, the law declaring the use of necktie unlawful can not be enforced from past dates.

It also can be beneficial for many people. Its total denial is impossible. It may be in national interest or some time national interest may demand it. But its onward application should be avoided. Law change the penalty of offence committed in past but it will not affect the status of past or current offences. Existing cases are not affected. Greater penalty cannot be imposed on previous offences. For instance, punishment of an offence as whipping of five lashes and now fine of Rs. 500,000/- has been provided in law. It will be upto the choice of party, if challenges whether as to what punishment will be imposed. Relief upon application would be granted.

5.      Double punishment: Under Article 13 double jeopardy has been abolished. Not only self-confession has been prohibited, i.e., no person shall be compelled for self-confession but he cannot be prosecuted and punished twice in the same offence. Some time same act or omission may constitute two or more offences. Violation of college rules may constitute an offence on the part of college but at the same time it may constitute offence against state, therefore its double effect may cause punishment twice. But same authority may not try offender twice.

6.      Respect of human dignity: Subject to law, respect of man and privacy of home is inviolable. Torture cannot be used for evidence against any body.

2.      Civil liberties/rights or political freedoms: Articles from 15 to 24 provide such rights/liberties/freedoms. They are further subdivided into three categories. Civil or political liberties/rights dealt in Articles 15, 16, 17, & 19. Economic rights/liberties are discussed in Articles 18, 23, & 24. Religious rights are guaranteed in Articles 25, 26, & 27.

(1)  Civil or political liberties/rights: These rights are covered under Articles 15, 16, 17, & 19.

1.      Freedom of movement: Under Article 15, every citizen is free to move and may remain in Pakistan. Entry in Pakistan, movement, residing, and settlement cannot be restricted unless law demands it or national interest.

Restriction are divided into three (3) kinds:

(1)   Restrictions with relation to places, i.e., airport and defence areas etc.

(2)   Regulatory movement, i.e., restrictions by law, like you may drive but on left side with license, on reasonable speed etc.

(3)   With relation to persons, i.e., police custody and prisoners etc.

Reasonable restrictions can be imposed in public interest.

2.      Freedom of assembly: Peacefully and without arms, people may assemble anywhere but again law can impose reasonable restrictions in public interest or order.

3.      Freedom of association: Every person has right to form association or union keeping in view of reasonable restrictions. Person in civil service can not hold the office of political party because political member has to be faithful to political party whereas person in civil service has to be faithful to government. Both are divergent.

4.      Freedom of speech: With reasonable restrictions every citizen is free to express himself. Press is free. Any speech, writing, or expression, which goes against Pakistan, shall be prohibited under Article 19.

(2)  Economic rights/liberties: These rights are protected under Articles 18, 23, & 24.

1.      Freedom of trade, business, and profession: Four terms are used in Article 18 of the constitution, i.e., trade, business, occupation, and profession. Profession does mean a vocation or calling, which is, recognized such as medical, law, and teachings are profession which are well recognized. Other one is business, which is one’s regular occupation, profession, or trade or a thing that is one’s concern. What occupies one is occupation. It is temporary or regular employment of persons. Trade is business of buying and selling.

Every person is free to adopt and carry on above jobs within the limits of law. Law gives freedom with certain conditions. Government may form any law to regulate certain trade or profession by imposing licensing restriction like doctor lawyer, Chartered Accountant, architect, and engineer etc. This process controls to work. Lawyer requires law degree, apprenticeship, interview, and licensing authority may take entry examination etc.

Anti-monopoly laws can be used to regulate trade, commerce, and industry in the best interest of public. Monopoly takes away free competition, which may even definitely results in lowering of quality and high in price. Government is responsible to break monopoly. However public is not allowed to establish monopoly but government may establish monopoly on certain type of trade, business, industry, or service. Government may exclude person or persons, completely or partially, like Wapda, Sui Gas, PIA, Railways, Ships, Telecommunications etc.

2.      Property rights: Every person may acquire, hold, and dispose of property in any part of Pakistan. But this is exercise-able only with the provisions of other laws. Law may impose certain reasonable restrictions, in the interest of public. Acquisition means transfer of ownership. Hold means possession of acquisition. Dispose of means selling something. Property may either be moveable, immovable, or intellectual, i.e., patent, copy rights, and trademark. It depends upon on circumstances that as to what restriction is quite in public interest. Lawmakers and courts determine public interest.

3.      Protection of property rights: This Article provides protection against force deprivation from property, but government may deprive under authority of law. Under law property may be acquired provided compensation is given. However amount of property is in cash, e.g., as per market value or principles’ specification, e.g., 20 times of Land Revenue or 15 times of annual produce.

For the purpose of public health, property, or danger to life, government has right of compulsory acquisition. Any property which is acquired by unfair mean like bribery, corruption, and commission etc. can be taken away. Property relating to enemy or evacuee property may also be taken away. Government may also takeover management of sick units and property which is important for public interest, i.e., medical, education, roads, water supply, sewerage, gas, and electricity etc.

(3)  Religious rights: These rights are provided under Articles 20, 21, & 22.

1.      Freedom of religion: Every citizen is free to accept, reject, or profess any religion provided it is not against law, public order, or morality. Law does neither prohibit such activities nor control the religion. It ensures just discipline. Law imposes condition to avail opportunities. However every one is allowed to drive on road but subject to traffic laws. No one is allowed to take others’ life by misusing the freedom of driving. Life and property is also protected under law. Every one is allowed to go for pilgrimage but law imposes some conditions such as passport and visa, National Identity Card, air ticket, traveling regulations, and necessary official formalities. These all are non-religious aspects but they ensure religious freedom. Religious freedom is always subject to public order. Some activities may be abandoned to ensure law and order. Nobody is allowed nude dance, as it is inconsistent to public order. Abuse and fencing is not allowed being against public order.

Immorality cannot be used and excused. Muslims’ Mosques, Christians’ Churches, Hindus’ Temples, Sikhs’ Sikhs’ Temples, Budhs’ Pagodas, and Jews’ Synagogues are protected under law.

2.      Religious taxation: Tax can be special or general. General tax is levied for general purpose while special tax is levied for special purpose and cannot be used for other than object. Tax imposed on Muslims is used only on Islam and tax imposed on Christians is used on Christianity. General tax can be used for any religion.

3.      Religious institutions: In Pakistan Christians’ cannot be compelled to receive education of Islamiyat (PBοÝmA), neither they can be compelled to take part in Seerat conferences (lnÃj°ÃB· PjÎm) nor they can be offered prayer. No educational institution can force other pupils to take part in worship, which is not related to them. Discrimination is not allowed while taxes are imposed or concession is granted for religious purposes. Concession for religious purpose shall be granted to all religions. Same community may establish, maintain, and finance religious institutions for their own students.

Institutions receiving aid from general public cannot deny granting admission to anybody on the grounds of race, religion, caste, or place of birth. Provincial government is allowed to impose restriction on the base of domicile, which shall not exceed to 3 years.

Public authorities may make laws for the benefit of dwellers of backward areas.

3.      Equality rights: Articles 25, 26, & 27 cover the equality rights.

1.      Equality of citizens: All citizens are equal in the eyes of law. Law cannot treat anybody unequally. Practically all people are not equal even than there are classes in jails for the prisoners of the same offence on the grounds of class, wealth, race, and education etc.

State may make laws for the protection of interest of the children and women. Government may frame laws for children and women apart from like or dislike. Government also may reserve seats for women in assemblies and local governments.

2.      Non discrimination on public places: Everybody is allowed to access to public places for which proceeds come from public. Discrimination is not allowed mere on grounds of race, caste, religion, sex, or gender, residence, or place of birth. Government may make laws especially for women and children.

3.      Non discrimination in services: Certain services are reserved for men and certain for women. Education and medical profession is good for ladies, while military is good for gents. Services may be rendered in all Pakistan but provincial government may impose restrictions on the base of domicile but this restriction may not exceed three years. Special quota may be allocated for backward areas. Certain posts may be for either gender.

Salient features of constitution: Following are the salient features of the constitution of Pakistan, 1973:

1.            Official religion: Islam is declared the official religion of the state.

2.            Preamble: Its preamble includes Objective Resolution according to which Almighty Allah is Absolute Sovereign power of Islamic Republic of Pakistan. Quran and Sunna are the supreme law. People shall be enabled to live in accordance to Islamic injunctions. Rights of minorities are protected. Free and independent judiciary is ensured. Fundamental rights and federal system of government is guaranteed.

3.            Written: It is found in written form. It is in contrast with British constitution, which is mostly unwritten. It is written in one single book. It is fully exhaustive constitution. One book can be offered as constitution. It can be seen and touched.

4.            Rigid: Process of alteration is too difficult. No one can change it easily. Although some changes have been incorporated during the martial law regime when the constitution was abandoned, otherwise this process is difficult. Very few amendments have been taken place so far.

5.            Islamic: Pakistan is a creation in the name of Allah. It is and will remain in the name of Allah. Official religion is Islam. Council of an Islamic Ideology is constituted to review laws in relation with their conversion into Islamic laws. All the laws must be in conformity with Islam. Principles of policy govern the Muslim society. They are manifesto for an Islamic society/government. Government shall enable all Muslims to order their lives in accordance with Islamic injunctions. Independence of judiciary is another an Islamic aspect of constitution. Federal Shariat Court is formed to review existing laws if they are in contrast with Islam. Minorities are protected under constitution. Freedom of religion is guaranteed. Education of Islamiyat (PBοÝmA) and Arabic has become compulsory.

6.            Fundamental Rights: Fundamental Rights are incorporated in the supreme law of land, which assure certain human freedoms. Subject to law and within the limits of law everyone is not only free but can enjoy freedom.

7.            Principles of policy: Founders of constitution had framed rules although for which they are not bound, but they are miles stone to the nation. State has to follow the provisions of the policy. State may vary but at the same time opposition can criticize. These principles are not enforceable through courts. These principles follow the rule of welfare of people, justice, protection of women, children, minorities, people of backward areas etc.

8.            Parliamentary: Head of the government is Prime Minister. He must not only be member of legislature but must be elected from Lower House, i.e., National Assembly. National assembly elects him. Prime Minister and his cabinet come from Lower House and are answerable to parliament. Parliament removes them by no confidence movement/vote. Prime Minister can issue advice to President for the dissolution of assemblies and to hold fresh elections. He is leader of the majority party.

9.            Federal: Pakistan has four provinces. Power is distributed among center and its units. Two lists are provided in constitution for enactment. Federal government may enactment on first list while the second list is concurrent list and both, i.e., center and provinces are eligible for enactment. Residuary matters go to units. Federal law has to prevail in case of enactment of province in contrast with the law of federation. Federal law shall precede and provincial law shall be void.

10.        Judicial review: Supreme Court may review and declare unconstitutional or un-Islamic any law in contrast with constitution or Islam. Law passed by legislature can be challenged in Court.

11.        Bicameral: Parliament consists on two upper and lower houses. Enactment is started in one of both houses.

12.        Independence of judiciary: Judiciary is independent from executive. Government may remove judges but through due process. Government also may change remuneration of judges. Judiciary protects herself through the system of contempt of Court.

13.        Single nationality: Since it is federal constitution therefore it does not require double nationality such as federal and provincial. Only one nationality being Pakistani is sufficient to be the citizen of the Pakistan.

14.        National language: Urdu is declared National Language of Pakistan however English shall remains Official Language till fifteen year since the enforcement of this constitution.

15.        Rule of law: Constitution is based upon the principle of rule of law. It does not regard any personality. Law takes all people as ordinary persons. Article 4 of Constitution provides rule of law.

16.        Democratic: Our constitution is based on the principles of democracy.

Principles of policy: Chapter 2 of the constitution provides principles against which every organ of state including all relevant authorities are liable and obliged to follow them in so far as they relate to the functions of the organs or authority.

Observance of principles shall be subject to the availability of resources. Government has to act within the available resources. President and governments of each province shall prepare report on the compliance/observance of principles each year and discuss in their respective assemblies.

Concerned organ and authority shall determine the compliance of principles. It provides the rule of self-accountability. Organ or authority responsible is also responsible of accountability or determination whether principles are complied with.

This is responsibility of organ or authority to follow these principles but they are not accountable as for as legal responsibility is concerned. Courts are not competent to review the due compliance or hear the case against the non-compliance of principles. Principles are not questionable in any Court.

Articles 31 to 40 provide such principles for which state is responsible to observe in law making.

1.      Islamic way of life: Article 31 says that state shall arrange and enable the Muslims, individually and collectively, to order their live in accordance with the injunctions of Quran. They may understand the Quran. Teaching of Quran and Islamiyat has become compulsory. Arabic language also has become compulsory from class one to tenth. Government has made certain rules to observe Islamic moral standard. Law regarding the correct and authentic publishing of Quran has been made. There is no room of mistake in publication of Quran. It is punishable at law. Zakat Ordinance has been enforced and Waqf has been established to maintain and continue Waqf (Trust) property. Many mosques have been taken under auqaf. These all things have became possible under the umbrella of principles of policy.

2.      Promotion of local government: State is responsible to establish and maintain local government institutions so that locality may be satisfied at their doorsteps. Elected representatives run local governments. General public elects them. This is another step taken under principles of policy.

3.      Discouragement of prejudices: Bias-ness based upon locality, province, tribe, race, and sect shall be liable to discourage under principles of policy. State is obliged to educate citizens so that they may protect themselves from such prejudices.

4.      Role of women: Spheres of national life requires the full participation of female gender actively. Principles of Policy have urged the demand of their full participation and government has made certain laws in this respect. Government has reserved their seats in local bodies and as well as legislation either provincial or federal.

5.      Protection of minorities: Principles of Policy ensure the protection of interest and legitimate rights of minorities including their due representation in national and provincial services.

6.      Protection of family: Article 35 of constitution provides surety for the protection of family such as marriage, family, mother, and child.

7.      Promotion of social justice and eradication (prevention) of social evils: Article 37 of constitution under Principles of Policy provides long list on the above matters:

1.      State is liable to provide facilities for education and economic activities in backward areas so that they come upto the level of rest developed part of the country.

2.      State is not only responsible to remove illiteracy but to promote literacy through compulsory secondary education within shortest possible time limit.

3.      Availability of professional and technical education enables people to wish higher education. It should be equally accessible for all on the basis of merit. Practically government cannot provide such facility but within limited resources government has tried her best to provide education under slogan education for all.

4.      These principles also make liable government in provision immediate (expeditious) and inexpensive justice at their doorsteps. Practically it could not be possible so far.

5.      Law shall be made which is best suited as regard of age and sex, for women and children. Working conditions would be made just and fair. Placement of right person in right job shall be ensured. Maternity benefits shall be provided during the course of employment of females’ workers.

6.      Participation in national activities including employment in the service of Pakistan is right of every citizen and state shall enable them irrespective area to take part through education, training, agricultural, and industrial development and other matters. Government has provided different tax free zones and tax holidays in different areas. Different vocational and training centers are established to achieve this object.

7.      As with as promotion of certain activities, state is also responsible for prevention (eradication) of social evils, such as, prostitution, gambling and taking of injurious drugs, printing, publishing, circulation, and display of obscene literature and material and advertisements. Government has taken certain preventive measures in the eradication of such social evils but still the net of underworld is unbreakable. Drug trafficking is going on. Dacoity, theft, robbery, prostitution in the name of cultural shows, gambling in the name of cultural activities like horse race is in action and obscene material is in operation under the garb of recreation films, songs, and advertisements.

8.      Since the alcoholic consumption is prohibited item in all religions so its prevention is also duty of state. It can be consumed for medical purpose and also for religious purpose for non-Muslims.

9.      Centralization of government administration creates burdens to facilitate public in business and convenience. Government shall decentralize its administration to meet above objects.

8.      Social and economic well being: Principles of Policy has also provided under Article 38 of constitution, provisions of the social and economic well being of the people. Article 38 provides six provisions on the topic such as:

1.      State shall ensure the due compliance of social contracts, which is meant between government and people and employers and employees. State shall also ensure equitable distribution of wealth and means of production.

2.      These principles bind the state to provide facilities for work and adequate livelihood with reasonable rest and leisure. This is for all citizens within available and limited resources. Government has fixed working hours to eight hours with recess time. Overtime in working is allowed to some extent. Minimum wages have been defined. Medical, casual, and annual leaves are provided under labour laws.

3.      State is responsible to provide sufficient social security by compulsory social insurance or other main means.

4.      State is also obliged to provide necessities to its citizens either in service or not. These necessities include food, clothing, housing, education, and medical relief. No distinction is allowed with relation to age, sex, creed, tribe, caste, and race.

5.      Even distribution of wealth within territory of Pakistan is ensured under Principles of Policy.

6.      According to Quranic injunction riba (BIj»A) “(not just interest or eÌm)” is to be eradicated as soon as possible.

9.      Participation in Armed Forces: Participation in Armed Forces is right of all citizens of all parts of Pakistan and state is obliged to enable all people to do so.

10.  Relationship with Muslim countries: State shall take measures to develop brotherhood among all the Muslim countries so that Islamic brotherhood may be developed and it may be used in settlement of international disputes.

Status of President: This appointment is a constitutional requirement. He is not only the Head of State but also he represents unity of Pakistan.

Qualification: No person can become President unless he fulfills some qualifications, such as:

1.      He must be a Muslim.

2.      His age must be equal or over 45 years.

3.      He should be eligible to elect as members of National Assembly.

Electoral College: His Electoral College shall consist of:

1.      Members of the parliament, i.e., National Assembly and Senate.

2.      Members of the all-provincial assemblies.

Voting power of each assembly shall remain equal to the total members of the assembly having lowest membership. Number of members of each assembly is divided with the membership of smallest assembly. For example, smallest assembly of Baluchistan contains 40 members. Membership of all assembly shall be divided on 40. For instance, Punjab assembly has 280 members, which shall be divided by 40. Voting power shall come to 7. It means one vote shall be equal of seven members.

Terms of election: Following are the terms of election:

1.      Election shall be held before 30 days of expiry of term. Election cannot be held before expiry of 60 days.

2.      Election shall be held within 30 days after general election, when National Assembly has been dissolved.

3.      In case of resignation or vote of no confidence or death or otherwise occurrence of vacancy election shall be held within 30 days of such occurrence.

4.      Validity of the election of President is not questioned in any Court or before any authority.

5.      President has to make oath before Chief Justice of Pakistan prior to join his office. He has to use specific form of oath provided in the third schedule.

Conditions of office of President: President can hold his office under following conditions:

1.    President shall remain President during his entire tenure. He is not allowed to hold other position in the service of Pakistan.

2.    He cannot contest for membership of National or Provincial Assembly.

3.    His membership in any assembly shall be ceased upon entrance in the office of the President.

Terms of office: Terms of the office are as follows

1.      His working duration is fixed for five (5) years from the day he enters upon his office.

2.      He shall remain office holder unless or until he is succeeded.

3.      He is eligible for re-election for any term with break. Three consecutive terms are prohibited.

4.      He may resign addressing speaker of National Assembly.

Removal of President: Following are ground available in constitution for the cessation to hold office of President:

1.      Reasons to cease hold or vacant office of President: President shall cease to hold office due to certain reasons such as:

(1)        Completion of term vacates his office Article 44(1). His term to hold office as President is five years unless he is elected twice.

(2)        Resignation Article 44(3). He may at any time resign by writing to the Speaker of the National Assembly.

(3)        Physical or mental incapacity due to unsound mind or paralyze Article 47(1).

(4)        Impeachment on charge of violating the constitution or gross misconduct.

(5)        Death Article 49(1). His death vacates his office.

(6)        Non-ability to perform the functions of the office of President Article 49(1). This may include any disease.

(7)        Absence from Pakistan Article 49(2). His tour to abroad vacates his office temporarily.

(8)        Any other reason.

2.      Rules governing removal (impeachment) of President:

(1)        Notice of intention to move resolution for removal:

(i)       Either house is competent to initiate notice. Members of any house may initiate move of resolution.

(ii)     Address to Speaker or Chairman. This notice must be addressed to either Speaker of National Assembly or Chairman of Senate.

(iii)   Finally transmission of notice to Speaker. If the notice is addressed to Chairman of Senate, he must transmit it to Speaker of National Assembly, at once.

(iv)   Contents of notice. It includes the allegation or charges imposed to him.

(2)        Speaker’s responsibility:

(i)       Transmission of notice to President within three days on the receipt of such notice.

(ii)     Summon of parliament for joint session within 7 to 14 days after the receipt of notice.

(3)        Responsibility of parliament:

(i)       Investigation of the charges or ground of charges. Whether it includes allegation liable to investigate.

(ii)     Consideration of investigation whether true or false.

(iii)   Decision of case by 2/3^rd of total membership of the parliament, i.e., National Assembly and Senate.

(iv)   Declaration of the decision, whether to cease hold or continue his office.

Parliament: Parliament of Pakistan is bicameral consisting on National Assembly, which are Lower House and Senate. Parliament also includes President.

Bicameral system of parliament is a symbol of federation, which consists on four provinces. All provinces either small or large have equal representation. There is lack of domination. Smaller are on safer side.

Single house lacks technocrats and expertise. Bicameral system provides double consideration on the legislation. Flaws of one house may be removed in other one house. Discussions in upper house are considered more valuable and authentic. Public representatives are the subjects of the Lower House whereas technocrats and expertise are offered membership in upper house who are unable to contest in general election but their participation is considered most important. Division of time is another important factor, which contributes in importance of bicameral system. One house can discuss one matter in a time whereas two houses can discuss two matters at a time.

National Assembly: National is constituted as follows:

1.      Membership: Total membership of Muslim members is confined upto 207 who are subject to contest in election by direct and free vote in accordance with law.

2.      Qualification of voter: Voter must have certain qualifications such as:

1.      Citizenship of Pakistan is essential.

2.      Age limit of voter is 21 years, which has been reduced to 18 years.

3.      Name of qualified voter must appear in electoral list roll.

4.      He must be of sound mind and not declared unsound mind by competent Court.

3.      Seats of minorities: Ten seats are reserved for minorities in addition to general seats. Detail is as follows:

1.      Christians – 4.

2.      Hindus and persons belonging to scheduled castes – 4.

3.      Sikh, Buddhists, and Parsi comminutes and other non-Muslims – 1.

4.      Qadianies – 1.

4. General rules of election: Following are the general rules of elections:

1.      Seats in National Assembly are population based on the results of last conducted population census.

2.      There shall be 20 additional seats of women for a period of 10 years or till holding of third election whichever shall be later.

3.      Seats of minorities shall be filled along-with general election.

4.      Seats of women shall be filled after holding the general election.

5.      Seats of women shall be filled on proportional representation base.

6.      President may also order to fill the seats of FATA.

Duration of Assembly: Law fixes maximum period, which is 5 years. It can be dissolved earlier on the advice of Prime Minister or at the discretion of President.

The senate: It is consisting on 87 members, detail of which is as follows:

S. No.	Description	Total Seats
1	Provincial seats @ 14 each province 14 x 4	56
2	Federally Administrated Tribal Area (FATA)	08
3	Islamabad Capital Territory (ICT)	03
4	Technocrats  5 x 4	20
Total Seats:		87

Provincial seats are filled with proportional representation by single transferable vote.

Senate is not subject of dissolution even National Assembly is dissolved. Each member of senate shall serve for six years.

Retirement procedure for members of senate: It is enacted as follows:

1.      Seven provincial members shall retire after completion of three years and seven shall retire after completion of next three years.

2.      Four Federally Administrated Tribal Area (FATA) members shall retire after completion of first three years and remaining after completion of next three years.

3.      One member from Islamabad Capital Territory (ICT) shall retire first after three years’ expiration and two after next term.

4.      Two technocrats retire after expiration of first three years and three after expiration of next three years term.

Decision of retiring members is made through lottery system. Casual vacancy is filled for remaining un-expired period.

Chairman and Deputy Chairman: As soon as senate is constituted, Chairman and Deputy Chairman are elected in first meeting before going into business meeting.

Causal vacancy: As well as office of any one or both is vacated, senate fills the vacancy as the case is.

Term of office: Both Chairman and Deputy Chairman shall work in their respective offices for a period of three years. New members shall choose new one to whom they think best one.

Qualification for membership of parliament: Membership of parliament is allowed subject to certain conditions such as:

1.      Pakistani: Candidature is subject to citizenship or naturalization of Pakistan.

2.      Age: He must attain age upto 25 years for the membership of National Assembly, along-with enrollment as voter in any electoral roll in Pakistan. Age limit extends to 30 years for the election as senator and the enrollment as a voter in the territory from where he has to contest.

3.      Islamic injunctions: He must be the follower of Islamic injunctions having good moral character and commonly known as good Muslim.

4.      Practice of Islam: He must aware of Islamic teaching, practicing Islamic obligatory duties, and abstain from major sins.

5.      Religious responsibilities: He is sagacious (wise, intelligent, sharp, rational), righteous (fair, noble, honest, good, ethical, moral), non-profligate, and honest and Ameen (ÅοA).

6.      Non-convicted: He must not be convicted against moral turpitude (depravity, corruption, demoralization, perversion, evil, sinfulness) and false evidence.

7.      Pakistan ideology: He must not be opponent of Pakistan Ideology and worker against integrity of Pakistan, after its creation.

Islamic qualifications are not applicable on non-Muslims, but such person must have good moral reputation.

Disqualification for membership of parliament: Member of Parliament becomes disqualified on the following conditions:

1.            Person of unsound mind: Court has declared him person of unsound mind.

2.            Insolvent: If his insolvency is continued.

3.            Cessation of citizenship: Cessation being Pakistani or acquisition of alien citizenship disentitles from being Member of Parliament.

4.            Service of Pakistan: Profit in service of Pakistan debars him to act as parliamentarian.

5.            Service in statutory body: If he is in service of statutory body of Pakistan, it shall cease his membership to exit.

6.            Disqualified in Kashmir: Any Kashmiri can contest in Pakistan if he is not declared disqualified in Kashmir.

7.            Anti Pakistan activities: Opposition of Pakistan ideology or acting against integrity and sovereignty of Pakistan.

8.            Election offence: If Chief Election Commissioner convicts him.

9.            Dismissal from service of Pakistan: Till five years after dismissal from service of Pakistan.

10.        Removal or compulsorily retirement: Till three years after removal or compulsorily retirement from the service of Pakistan.

11.        Cessation of service of Pakistan: Till two years after cessation from service of Pakistan.

12.        Guilty of corruption and illegal practice: Till five years after he is found guilty of corruption or illegal practice.

13.        Political conviction: Till five years after conviction under Pakistan Political Parties Act, 1962.

14.        Contractual obligations towards government: If he has any contract to provide goods or supply to government.

Privileges of members: Both of the houses are masters of their own business. They have liberty to proceed the business as they want. No Court is allowed to start proceedings adopted in parliament as to how and what procedure is adopted in enactment. Members are free to speak in parliament upto the extent whatever they want.

There are two types of privileges, i.e., absolute privilege in which intention is no more considered important while other one is qualified privilege, mala-fide intention is taken into consideration. Words delivered in good-faith are not subject of jurisdiction. Parliamentarian enjoys absolute privilege as far as inside of parliament is concerned and qualified privilege in outside the parliament. Any person involves in publication or in vote is not answerable if it is so done under the authority of parliament.

If the immunities and privileges are not so defined then immunities and privileges as before the commencing date shall be applicable.

Restriction on parliament: Parliament is not so authorized to discuss the conduct of the judge of Supreme Court and High Court in the discharge of their duties.

Immunities of other persons: Parliament includes many other persons who facilitate the proceeding of parliament. If any irregularity is occurred, courts cannot call in question.

Introduction and passing bills: Since both houses are masters of their business so any ordinary bill can be originated in any house at any time.

After passing the bill in one house, it shall be sent to other one house that will discuss it and pass. Finally this bill shall go to President for his signature and then it shall come into force. Parliament can make laws subject to federal and concurrent legislative lists.

If a house passes the bill and other one rejects or alters it, the originator house may call joint sitting of parliament, i.e., National Assembly and Senate.

If the joint session is called by President then absolute majority, i.e., majority of total membership shall pass the bill and if joint session call upon the request of originator then simple majority of present members shall decide the case.

Both Federal and Concurrent Legislative Lists are provided in fourth schedule. President may retain any bill except money bill till thirty days.

Money bill cannot either be sent to senate nor President may retain it. It must be signed and enforced.

Senate plays its role in stopping the dominance of influence of majority membership of big province or provinces. Opposition of majority kills the validity of bill.

What is money bill: Following are the conditions, which determine the status of bill whether it is money bill:

1.      If it imposes, abolishes, remits, alters, or regulates of any tax shall be money bill.

2.      If federal government borrows the money or gives guarantee, or amend the law relating to the financial obligations of the government.

3.      Custody and issuance of money from Federal Consolidated Fund.

4.      If it imposes charge upon the Federal Consolidated Fund or the abolition or alteration of any such charge.

5.      Receipts, issue, and custody of Public Accounts.

6.      If it is related with audit of federal or provincial government.

7.      If any matter incidental to any of the matters specified in the proceeding paragraph.

8.      If it is so declared money bill by speaker of the National Assembly.

No taxation without representation: Taxes are imposed by or under authority of parliament. Magnacarta is also product of representation of people. King was in need of money for crusades and people were in need of rights. Both had compensated each other.

Islamic provisions of 1973 constitution: Pakistan is an Islamic State, which emerged on the map of world based upon Two Nations’ Theory. It was the wish of the Muslims of Sub-Continent to establish new and separate piece of land where they may exercise the principles of Islam. Muslims are a separate nation thus demand of separation based on this theory was the part of their conviction (belief, faith) of Islam. Pakistan is a God Gifted state which has to guide Muslims Community in all over the world particularly and all the peaceful human beings generally to protect their fundamental rights.

Pakistan has to become ideal or exemplary state for the rest of world. Only four states could appear on the face of earth on the base of ideology, i.e., Macca, Russia, Israel, and at last Pakistan.

In order to enable the people of Pakistan to follow Quranic Injunctions and to observe them in their lives, Pakistan constitution has provided certain Islamic provisions. These Islamic provisions are discussed in brief:

1.            State religion: Although Islam is not a religion but a (Deen – ÅÍe), i.e., code of life – PBÎY îñIBy, but anyway it is declared official religion of Pakistan. Islam is superior law and supercedes all the existing non-Islamic laws.

2.            Name of state: Pakistan is a federal state under the name of Islamic Republic of Pakistan. Although it is insufficient towards Islamic system, but it shows inclination (desire) on the part of Pakistan constitution.

3.            Islam based system: Pakistani existing laws are heritage of English system but constitution provides provision to convert all the existing non-Islamic laws in accordance to Islam. This process is in progress and certain laws have been reviewed and most of them have been rearranged in the light of Islam.

4.            Council of Islamic Ideology: Under the provisions of Constitution Council of Islamic Ideology has been constituted object of which is to review all the laws and suggest recommendations to bring them Islamic.

5.            Qualification of State and Government Heads: This is requirement of the Islamic society that only Muslims head it. Constitution provides that Prime Minster and President shall be Muslim. Only Muslim can represent Pakistan.

6.            Establishment of Islamic society: Since object of Pakistan is to establish Islamic society, so democracy, equality, tolerance, freedom, and social justice are tools which are used to achieve its object.

7.            Concept of sovereignty: Every society has a concept of a supernatural being who governs the people of society. Superman, Blind Force, Historical Necessity, Parliament, God, Idol, and King are several concepts, which regulate states. Islamic concept of sovereignty is quite different as sovereignty over the entire universe belongs to Almighty Allah alone and Muslims exercise this authority in the light of Quran.

8.            Basic rights: Concept of fundamental rights is as old as the human being himself is. Government or constitution does not provide these rights but they are inherited and constitution only protects them. Pakistan constitution like the others one guarantees the protection of such rights.

9.            Supremacy of Islam: No law shall be passed in contravention to Islamic injunctions and if so passed shall be declared void in review. Government shall make arrangements to change non-Islamic laws in the light of suggestions made by Council of Islamic Ideology.

10.        Principles of policy: A complete chapter is provided which is generally may be considered manifesto of all the governments disregarding their loyalties to any political party. Principles of policy include Islamic way of life, protection of minorities, promotion of Quranic teachings, compulsory Islamic education, facilitating the learning of Arabic language, securing correct and exact printing of Quran, observance of Islamic moral standard, organization of Zakat, Auqaf, and mosques. Elimination of Riba is also its part. State shall establish brother-ship relation with Muslim countries.

11.        Elimination of exploitation: Islam does not allow exploitation of weaker by stronger. State shall arrange its elimination.

12.        Rule of law: Constitution provides that only law shall govern people. Rules and regulations shall run society. Every citizen is free to do, which is allowed or not prohibited. This is a principle of general application, which controls human behavior. Article 5 provides rule of law.

13.        Objective resolution: It is very first provision of Pakistan constitution, which provides justification of Pakistan emergence and sets several Islamic obligations to observe in national life.

There are different theories as to why the Muslims of India demanded a separate homeland for themselves in the first half of this century. Some believe that it was for economic reasons and others maintain that it was purely on religious compulsions. However, the fact remains and there is no denying it that it was in the name of Islam that Pakistan emerged on the map of the world and the ground norm of the new state and its society, which came to be known as the ideology of Pakistan, was nothing but Muslim faith. Before embarking upon the task of framing of our first constitution, this ideology was translated into words in precise from by the first Constituent Assembly of Pakistan in a resolution passed by it in the year 1949. This resolution known as the ‘Objectives Resolution’, provided as follows: 

    ‘Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the state of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; 

    This Constituent Assembly representing the people of Pakistan resolves to frame a constitution for the sovereign independent state of Pakistan;
    Wherein the state shall exercise its powers and authority through the chosen representatives of the people;
    Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
    Wherein the Muslims shall be enable to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and the Sunnah;

    Wherein adequate provisions shall be made for the minorities to profess and practice their religions and develop their cultures;
    Wherein the territories now included in or in accession with Pakistan and such other territories as ma hereafter be included in or accede to Pakistan shall form a federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;

    Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, worship and association subject to law and public morality;

        Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
    Wherein the independence of the Judiciary shall be fully secured;

    Wherein the integrity of the territories of the federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;
    So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity.’

    In the successive constitutions that were adopted by the people of Pakistan over the last four  decades, the principles and provisions of the ‘Objectives Resolution’ were added as a preamble thereto till the year 1985 when, through the insertion of Article 2-A in the constitution of Pakistan, 1973, it was categorically provided that ‘The principles and provisions set out I the ‘Objectives Resolution’ reproduced in the Annex are hereby made a substantive part of the constitution and shall have effect accordingly.’

    There are certain remarkable Islamic features of this ‘Objectives Resolution’, now a substantive part of our constitution, which cannot escape notice. For instance a new dimension has been given therein to the concept of sovereignty of Parliament. Although sovereignty of Almighty Allah over the entire universe has been acknowledged, yet the state has been recognised as the delegate thereof which is to exercise that sovereignty through chosen representatives of the people within the limits prescribed by Almighty Allah as a sacred trust. Thus, while conceding sovereignty to a democratically elected parliament, the constitution simultaneously circumscribes that sovereignty by confining it to the limits prescribed by Almighty Allah. This is an exact conformity with a Muslim’s belief that he may be free to make his own choices in life but he may not overstep the limits prescribed by his Creator. Looked at in this perspective, the Pakistani constitution, conforming to Islamic perceptions, recognises democracy as the only mode of government – but a democracy that does not come into conflict with a Muslim’s faith. To an outsider this may appear to be enigmatic but we, the Muslims of Pakistan, have no difficulty in understanding and applying this concept. It, therefore, fits into the scheme when the ‘Objectives Resolution’ refers to ‘the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam’ and envisions a state ‘wherein the Muslims shall be enable to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and the Sunnah.’ The scheme, unmistakably, is the establishment of a modern and democratic Islamic State in fulfilment of the wishes of the Muslims of this region and the manifestations of this scheme are to be found spread over the entire constitution of Pakistan.

    Article 1 (I) of the constitution of Pakistan, 1973 provides that ‘Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan’. It may be pertinent to point out that Pakistan has been the first country in modern history to introduce the concept of an ‘Islamic Republic’ which was later on also adopted by Iran and  Libya. Not only the name of the country itself but also the political system of its governance incorporated therein shows the wishes of its people to blend modernity with their faith. Article 2 of the constitution, providing that: Islam shall be the state religion of Pakistan’, again highlights the same theme and accomplishes the same object of the creation of Pakistan. Under Article 41 (2) of the constitution, the president, who is to be the head of the state of this Islamic Republic, has to be a Muslim. Under Article 50 of the constitution, the parliament of the state is to be called the ‘Majlis-i-Shura’ in accordance with Islamic traditions. The qualifications of being elected to the ‘Majlis-i-Shura’ or the Provincial Assemblies also have a distinct Islamic overtone and the following provisions of Article 62 of the constitution bear ample testimony to that:

    (d) he is good of character and is not commonly known as one who violates Islamic Injunctions;

    (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;
    (f) he is sagacious, righteous and non-profligate and honest and ameen;

    (g) he has not been convicted for a crime involving moral turpitude or for giving false evidence;

    (h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan: Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a non-Muslim, but such a person shall have good moral reputation;’
    These qualification for the legislators are understandable if it is kept in mind that such members are to exercise the sovereignty of Almighty Allah as His delegates by way of a ‘sacred trust’. 

    Even the laws that are to be made by such legislators cannot cross the  limits prescribed by Almighty Allah because by virtue of the ‘Objectives Resolution’ read with Article 2A of the constitution the sovereignty of the ‘Majlis-i-Shura’ does not transcend the limits prescribed by Almighty Allah. To clarify any doubt in this respect Article 227 (1) of the constitution provides as follows: 

    ‘All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur’an and Sunnah, in this part referred to as the injunctions of Islam and no law shall be enacted which is repugnant to such injunctions.’ 

    Under article 228, the constitution has created a Council of Islamic Ideology which is to perform the following functions under article 230 (1) of the constitution. 

    ‘(a) to make recommendations to the ‘Majlis-i-Shura’ (Parliament) and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Qur’an and Sunnah; 

    (b) to advise a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposal or law is or is not repugnant to the injunctions of Islam; 

    (c) to make recommendations as to the measures for bringing existing laws into conformity with the injunctions of Islam and the stages by which such measures should be brought into effect; and  

(d) to compile in a suitable form, for the guidance of the ‘Majlis-i-Shura’ (Parliament) and the Provincial Assemblies, such injunctions of Islam as can be given legislative effect.’

    The functions of the ‘Council of Islamic Ideology’ are primarily advisory and recommendatory in nature and its advice or recommendation is not self-executory.
    The adjudicatory jurisdiction in this respect is conferred by Chapter 3-A of the constitution on the ‘Federal Shariat Court’ which has the following jurisdiction under Article 203-D(I) of the constitution:  

‘The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine or decide the question whether or not any law or provision of law is repugnant to the injunctions  of Islam, as laid down in the Holy Qur’an and Sunnah of the Holy Prophet (sws), hereinafter referred to as the Injunctions of Islam.’  

    Under the other provisions of article 203-D of the constitution any law or provision of law declared by the ‘Federal Shariat Court’ to be repugnant, to the injunctions of Islam is, to the extent of such repugnancy, to cease to have effect on a date fixed by the Court for the purpose. An appeal in this respect is provided before the Shariat Appellate Bench of the Supreme Court of Pakistan under Article 230-F of the constitution.
    In the chapter relating to the principles of policy, the constitution gives top priority to the state’s adoption of a social policy in consonance with the state religion, i.e Islam. Article 31 of the constitution, laying down the first principle of policy, provides as follows:
  
    ‘(1)  Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with t he fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur’an and Sunnah. 

    (2) The state shall endeavour, as respects the Muslims of Pakistan: 

    (a) to make the teaching of the Holy Qur’an and Islamiyat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Qur’an. (b) to promote unity and the observance of zakah, ushr, auqaf and mosques. Likewise, Article 37, dealing with the principles of policy regarding promotion of social justice and eradication of social evils, provides in its clauses (g) and (h) that the state shall: 

    ‘(g) prevent prostitution, gambling and taking of injurious drugs, printing, publishing, circulation and display of obscene literature and advertisements;
        (h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of -Muslims, religious purposes;
    In the economic field, the constitution of Pakistan, in its Article 38(f), requires the state to ‘eliminate riba as early as possible’ and Article (31)(2)(c) thereof requires the state ‘to secure the  proper organisation of zakah and ushr’ so that a truly Islamic welfare State could be established in Pakistan.
    One can notice in the constitution of Pakistan an Islamic tilt even in the matter of foreign policy to be adopted by the state. Article 40 of the Constitution provides that:  

    ‘The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.’
    This survey of the constitution of Pakistan, 1973 shows, and shows very clearly, that the wishes of our forefathers who had given great sacrifices for the creation of a separate homeland for the Muslims of this region have found full expression in the constitution of this homeland. As seen above, the constitution envisions a modern, democratic and welfare Islamic state but, unfortunately, practically we have not been able to travel much in either of those directions so far. Now the need of the hour is to give full effect to that expression so that the true objective behind the creation of this state is accomplished and justified.

 (Courtesy ‘The Nation’) 

Jurisdiction of Supreme Court: Supreme Court is the highest Court in Pakistan. It has jurisdiction over certain matters. Jurisdiction means the power of a Court or judge to entertain an action, petition, or other proceedings.  The district or limits within, which the judgement or orders of a Court can be enforced or executed.

Jurisdiction of Supreme Court includes:

1.      Original jurisdiction

2.      Appellate jurisdiction

3.      Advisory jurisdiction

These are the main three areas where Supreme Court has jurisdiction. Now we discuss them in little detail. First we take original jurisdiction of Supreme Court.

Original jurisdiction of Supreme Court: The Supreme Court has exclusive jurisdiction in the inter-government disputes, such as:

1.      Punjab v Sind

2.      Punjab v Pakistan

3.      Punjab v Sind and Pakistan

4.      Pakistan v All Provinces

This provision is based on principle that all the disputes whether consist on law or fact, must be determined by Supreme Court if the parties in case are governments either provinces or provinces and federation. It is undesirable that governments fight in subordinate courts like common litigation. This jurisdiction is exclusive because it excludes the jurisdiction of all other courts in respect of disputes related with Governments.

A Court is said to have original jurisdiction when it has power to hear and adjudicate upon the matter in the first instance.

Exclusive jurisdiction means jurisdiction when Court has powers to hear, try, and decide a case excluding any other Court.

Where Public importance is involved with reference to Fundamental Rights: Supreme Court is competent to entertain a petition if considers that a question of public importance is involved with reference to enforcement of any of the Fundamental Rights conferred by the Constitution. These are the cases, which should not be prolonged keeping in view of their importance. Nusrat Bhutto Case, Martial law of 1962 case, Non-Party Based Elections are the best examples of the public importance.

Supreme Court decides the question of public importance. Supreme Court may or may not entertain the case being considering of public interest or not.

Appellate jurisdiction of Supreme Court: Appellate jurisdiction of Supreme Court includes:

1.      Decisions of High Court such as judgements, decrees, final order, or sentence.

2.      Cases from Federal Shariat Court.

3.      Cases from Federal Services Tribunal.

Appeal can be instituted in Supreme Court against the decision of High Court provided:

1.      Reversal of acquittal of High Court: If the High Court has reversed the acquittal and enhanced the sentence in following cases:

1.      Death

2.      Transportation for life.

3.      Imprisonment for life.

4.      Enhancement of sentence.

2.      Withdrawal of Cases: Where High Court has withdrawn a case from subordinate Court, convicted an accused, and sentenced serious punishment like death, transportation for life, imprisonment for life, or enchantment of sentence.

3.      Contempt of High Court: Where High Court has convicted a person on the grounds of contempt of Court.

4.      Value of subject matter: Where value and subject matter is equal or greater than Rs. 50,000/- or any other amount which parliament specifies is involved.

5.      Certified appeal: Where High Court certifies that case involves substantial question of law as to the interpretation of constitution. Provisions of the Constitution have to be interpreted to make it a living document which may accommodate past, satisfy the present, and serve to the future._[1]

Appeal against the judgement of High Court shall lie in Supreme Court, if Supreme Court grants permission for appeal.

Advisory jurisdiction: Where President considers any matter of public opinion may refer this question to Supreme Court for obtaining its decision.

Supreme Court is obliged to consider the question so raised and must submit reply to the President.

Specific and precise question: The question, which is referred to Supreme Court, must be specific and precise and Court may refuse to answer a question if it is too general.

Powers to transfer case from one High Court to another: Supreme Court has also authority under Article 186-A, that case pending in one High Court may be transferred to another High Court provided it contains interest of justice. It is only criteria to transfer case. Decision on the facts and circumstance of each case shall determine the interest of justice.

Execution of processes: Supreme Court is competent and has power to issue such directions, orders, or decrees as may be necessary for doing complete justice in any case or matter pending before it. The direction, order, or decree of the Supreme Court shall be executed by the competent High Court who shall give effect to it as if it were its own directions, orders, or decrees.

Enforceability: Directions of Supreme Court issued to government under constitutional powers are enforceable throughout Pakistan. These direction, order, and decree shall be deemed issued by the High Court concerned.

Finality of Supreme Court: Where any question arises whether which High Court shall give effect of the order of Supreme Court, the decision of Supreme Court regarding this matter shall be final.

Review of judgement: The Supreme Court has jurisdiction, subject to any Act of Parliament and the Rules, made by the Court itself, to review any judgement or order. At present there is neither any Act of Parliament nor any Rules, subject to which the Court may exercise its powers of review.

Binding force on other courts: Decision of the Supreme Court on a question of law or proceeding on or enunciating (state, announce, proclaim, affirm) a principle of law are binding on all courts in Pakistan with the exception of Supreme Court itself. The decision of Supreme Court brings an institutional decision, as it is the decision of majority that is binding. Law declared by Supreme Court would bind all courts, tribunals, and bureaucratic set-up in Pakistan.

Action in aid of Supreme Court: If the judgement of the Supreme Court is not implemented intentionally, it shall mean that the order or decree of Supreme Court has been disobeyed. Constitutional command is that the law declared by the Supreme Court shall bind all the courts of the country. All the Executives and Judicial Authorities throughout Pakistan shall act, in aid of Supreme Court of Pakistan. All courts and executives are obliged to enforce such law.

Jurisdiction of High Court: Constitution gives a special constitutional jurisdiction, which in simple terms may be stated as follows:

1.      The jurisdiction is subject to constitution.

2.      It is discretionary to the High Court to exercise or refuse to exercise this jurisdiction.

3.      The person who involves must be a person who is aggrieved by the action taken by a statuary functionary discharging functions in connection with the affairs of the Federation, a Province, or a local authority within the jurisdictional limits of the High Court in which application is made.

Prohibition: Following orders, High Court, can make in certain cases:

1.      Prohibition of excessive authority: High Court may prohibit a person from doing something in excess of his authority.

2.      Declaration of unlawful authority: High Court may declare that something by person is without lawful authority and has not legal effects.

A person may lack lawful authority, when:

(1)        He has no jurisdiction over the party.

(2)        He has not jurisdiction over the territory.

(3)        He has no jurisdiction on the subject matter.

(4)        He has not jurisdiction to make the kind of order he actually made.

(5)        His own appointment under the statute is illegal.

3.      Habeas Corpus: High Court may, on the application of a person not necessarily an aggrieved party, if there is no other adequate remedy, direct a person in custody in the Province to be produced to satisfy itself that he is not being held in custody without lawful authority or in unlawful manner. The first thing to be noticed about the provision is that the person who applies and the person who is detained need not be identical and the restriction that the application should be by an aggrieved party is not applicable to an applicant for the writ.

4.      Territorial jurisdiction: It is necessary for the issue of the writ that the office should be one created by the State, by character, or by statute, and the duty attaching to the office should be in possession of the office. It is also necessary that the respondent should be in possession of the office.

5.      Enforcement of Fundamental Rights: Jurisdiction to enforce Fundamental Rights in the first instance has been transferred to the High Court. The right remains suspended during the period of emergency.

Amendment of constitution: Only parliament is empowered to amend the constitution, as it is the supreme law of the land. No inferior forum can amend it.

Parliament is supreme authority to make any amendment in any part of the constitution to modify it. There is no provision in the constitution, which puts restrains on its powers in this behalf.

Object of amendments: Object of amendments is to conform the constitution with the changing environments and new demands and needs of time which could not have been foreseen by the constitution-makers at the time when constitution was promulgated.

Procedure of amendment: Following criteria is adopted for the amendment in constitution:

1.            Origination of Bill: Either House National Assembly or Senate is eligible to put Bill for amendment in constitution.

2.            Requirement of vote: Two-third majority of both Houses is required to give effect of amendment in constitution.

3.            Preliminary proceeding: House in, which Bill is originated is required to pass it with two-third majority of total of its membership.

4.            Transmission to other House: As soon as a House passes an amendment with two-third majority of total membership of the House, Bill is transmitted to other House for further processing and passing.

5.            Proceeding in other House: Other House is required to pass the Bill with two-third majority of its total membership.

6.            Assents of President: When both Houses pass the Bill with absolute majority without making any amendment in Bill, Bill is presented to President for his assent.

7.            Effect of assent: As soon as President assents and signs the Bill, amendment in constitution takes effect immediately.

8.            Where transmitted House amends the Bill: As a matter of policy, House in which Bill is originated and passed by two-third absolute majority is required to transmit Bill to other House. Other House may either pass it without making any amendment or with amendment. In case of amendment, Bill is retransmitted to the House where it was originated for reconsideration.

9.            Reconsideration of originated House: When other House retransmit the Bill to its originator, that House reconsiders it. If absolute majority reconsiders this Bill without making any amendment, then it is sent to President for assent.

10.        Where Bill effects Province: If the constitutional amendment effects the limits of any Province, Bill is not sent to President for assent directly, however it is sent to the Province concerned.

11.        Confirmation of Province: Where any constitutional amendment effects the limits of Province, Province passes the Bill by absolute majority by two-third membership.

12.        Protection to amendment: Any amendment made in constitution is totally protected and cannot be called in any Court on any ground whatsoever.

13.        Removal of doubt: For the purpose of removal of doubt no restriction is imposed on Parliament. Parliament has power to amend by way of addition, modification, or repeal any of the provision of the constitution.

Powers of President under Constitution 1973: Following are the powers, which are vested to President under the Constitution 1973:

1.      Executives Powers: Following are the executive powers of the President:

(1)        Duty of Prime Minister in relation to President:

(2)        Appointment of Prime Minister:

(3)        Appointment of Advisors:

(4)        Appointment of Governors:

(5)        Appointment of Chairman Federal Public Service Commission:

(6)        Appointment of Council of Common Interest:

(7)        Appointment of Chief Justice of Supreme Court:

(8)        Appointment of Chief Justice of High Court:

(9)        Appointment of Chief Election Commissioner:

(10)    Appointment of Members of Council of Islamic Ideology:

(11)    Appointment of High Ranking Army Officers:

(12)    Command of Armed Forces:

(13)    Constitution of National Finance Commission:

(14)    Constitution of National Economic Commission:

2.      Legislative Powers: Following are the legislative powers of the President:

(1)        Summoning of either House:

(2)        Dissolution of National Assembly:

(3)        Appointment of Care Taker Cabinet:

(4)        Holding of referendum:

(5)        Address to either House:

(6)        Transmission of messages to both Houses:

(7)        Delay in assent on Bill:

(8)        Assent to pass Bill:

3.      Judicial Powers: Following are the judicial powers of the President:

(1)        Grant of pardon:

(2)        Remission (reduction) of punishment:

4.      Emergency Powers: Following are the emergency powers:

(1)        Proclamation of emergency:

(2)        Power to direct Governor:

(3)        Promulgation of Ordinance:

Powers of Prime Minister under Constitution 1973: Following are the powers, which are vested to Prime Minister under the Constitution 1973:

1.            Formation of cabinet:

2.            Head of cabinet:

3.            Leader of House:

4.            Power to terminate ministers:

5.            Power to dissolve National Assembly:

6.            Administrative powers: Prime Minister is empowered to make following appointments:

a)      Judges:

b)      Political institutions:

c)      Advocate General:

d)     Auditor General:

e)      Ambassadors:

f)       Chairman Public Service Commission:

7.            Fiscal powers:

8.            Powers relating to defence:

9.            Powers of foreign affairs:

10.        Leader of party:

11.        Advisor of President:

12.        Bridge between President and Ministers:

13.        Powers to grant awards:

14.        Public welfare:

15.        Representation of people: