The 1973 constitution has seen many alterations and a lot of restructuring through amendments
akistan has had a chequered constitutional history. The first two constitutions, adopted in 1956 and 1962, were abrogated shortly after their enactment. The 1973 constitution, suspended twice by military dictators, has survived albeit with many alterations and restructuring through constitutional amendments.
Zulfikar Ali Bhutto had assumed power as a civilian chief martial law administrator after the dismemberment of Pakistan. The ruling coalition then enjoyed support of 110 members in a house of 146. The regime appointed a 25 member-constitutional committee, including six members from the opposition on April 17, 1972. A consensus emerged soon that the future constitution should be federal and parliamentary with maximum provincial autonomy. The office of the prime minister was given substantial powers and the office of the president reduced to a constitutional head of state with symbolic powers. A bicameral legislature was adopted; the upper house, Senate, being the House of the Federation and the lower house, National Assembly, the House of the People.
The opposition and religious parties asked for more democratic and Islamic provisions. Most of the demands were accommodated following prolonged negotiations. The draft was adopted on April 10, 1973. It was decided that the new constitution be promulgated on August 14, 1973.
After the seccession of East Pakistan, most political parties were reluctant to recognise the state of Bangladesh due to the political implications. The regime availed the occasion of the OIC summit in 1974 to extend recognition to Bangladesh through the First Amendment to the constitution. Article 1 of the constitution was amended and Clause 2 was deleted.
The Second Amendment followed anti-Ahmadiyya agitation following the May 29, 1974, Rabwah incident. Bhutto took the issue to the parliament and after a closed-door debate, the National Assembly adopted the Second Amendment in September 1974. The amendment added Clause 3 to the Article 260 and declared that a person, who does not believe in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), is to be treated as a non-Muslim. Article 160 was amended, and the Ahmadiyya community included in the list of minorities.
The Bhutto regime also introduced the third, fourth and fifth amendments to supplement the government’s detention powers and to curtail judicial powers. An opposition party, the National Awami Party (NAP) was banned through a Supreme Court verdict. The fifth and sixth amendments also deal with the issue of the appointment of the chief justice and the age of retirement.
In a surprise move, Bhutto dissolved the assemblies and called fresh elections in March 1977. Most opposition parties joined hands and created the Pakistan National Alliance (PNA). The opposition alliance levelled charges of massive rigging in the elections to the National Assembly and boycotted the provincial elections. It resorted to mass agitation and the government adopted a repressive strategy. The political deadlock persisted despite negotiations. On May 16, 1977, Bhutto decided to introduce the 7th Amendment to the constitution, providing the option of a referendum as a demonstration of people’s support to the prime minister. The opposition rejected the option and insisted on fresh elections.
The military junta under Gen Zia assumed power as a transitional regime with the promise of elections within 90 days. The elections were eventually held after 90 months, in February 1985. Zia claimed that the party-less electoral exercise facilitated the restoration of democracy. As a bargain, the controversial 8th Amendment, was made. It transformed the political and constitutional structures, amending or modifying 65 articles.
The office of the president was empowered at the cost of the office of the prime minister and the parliament. The president acquired the power through Article 58(2)(b) to dismiss the government and dissolve the National Assembly. The constitutional restructuring included the introduction of Articles 62 and 63. Subsequently, four elected governments were dismissed prematurely at the behest of the powerful establishment.
The Zia regime also introduced the Ninth Amendment to impose Shariah as the supreme law. The bill was adopted by the Senate but not approved by the National Assembly. Later, the Nawaz Sharif regime introduced the Shariah bill in 1997 as the 15th Amendment, but failed to receive legislative approval. The 10th Amendment was introduced to lessen the interval between the session of parliament. The 11th Amendment was introduced to revise the women’s representation in the national and provincial assemblies. In August 1992, the amendment was withdrawn. The Nawaz Sharif regime introduced the 12th Amendment for the creation of special speedy courts for the trial of heinous offences for a period of three years.
After the repeated dismissal of elected governments, mainstream political parties agreed to remove Article 58 (2) (b) through the 13th Amendment. The Nawaz regime also introduced the amendment to block defections from political parties by proposing disqualification of the defecting members. Introduced to assure political stability, the law effectively shrank space for dissident voices within parties.
The introduction of the 15th Amendment strengthened the impression that Nawaz Sharif wanted absolute power through the Shariah bill. The 16th Amendment was introduced in 1999 to extend the employment quotas for another twenty years, following the original twenty years.
After the 2002 elections, Gen Musharraf bargained with political leaders to introduce the 17th Amendment. The semi-presidential system of the Zia era was largely restored.
The Charter of Democracy was signed in 2006 to restore the original constitutional structure. After the electoral victory in 2008 elections, the signatories formed a twenty-eight-member constitutional reform committee under the leadership of Raza Rabbani, with representation from all parliamentary political parties. The 18th Amendment resulting from its work radically altered the constitution with 101 amended articles. It restored parliamentary supremacy, enhanced provincial autonomy, promoted political and economic decentralisation and created a more participatory federation.
When the restored and empowered judiciary under Justice Iftikhar Chaudhary raised objections to the process of appointment of judges to the Supreme Court and High Courts, its concerns were addressed and accommodated through the 19th Amendment. The parliamentary oversight regarding the appointment of judges was thus compromised.
The 20th and 21st amendments were introduced in 2012 and 2016, respectively, for the reconstitution of the Election Commission of Pakistan through consultation and further empowered the ECP. Technocrats were allowed to serve as chiefs and members of the election commission.
The 22nd Amendment was introduced in 2015 for the establishment of military courts for the trial of terrorists. The 23rd Amendment extended the term of military courts for two years. After the 2017 census report, representation in the National Assembly was revised through the 24th Amendment. The 25th and 26th Amendments deal with the merger of the Federally Administered Tribal Areas with Khyber Pakhtunkhwa, the reallocation of seats reserved for the former FATA and reconstitution of the KP provincial assembly.
The writer has a PhD in History from Quaid-i-Azam University, Islamabad. He is assistant professor at the Allama Iqbal Open University, Islamabad. His area of interest is electoral politics in Pakistan. He can be reached at sajidkhanhistoriangmail.com