Wednesday December 06, 2023

The 1973 Constitution at 50

March 23, 2023

Professor Rizwan Zeb

2023 marks the 50th anniversary of the promulgation of the 1973 constitution. Fifty years ago on April 10, 1973, the then National Assembly of Pakistan passed the constitution. Two days later it was approved by the president of Pakistan and came into force on 14 August 1973. Although not the first constitution of Pakistan, it was unique in a number of ways. Before we discuss its salient features and its historical evolution and progression since then, it would be prudent to define and understand the constitution, its purpose and role in a state as well as briefly overview the political history of Pakistan up till 1973 and make sense of the significance of this document and why it is important to uphold it.

Generally written as a single document with a noted exception of United Kingdom, a textbook definition of a constitution is that “... it is a rule book for a state. It sets out the fundamental principles by which the state is governed.” It not only describes the main institutions of the state, it also highlights the role and inter-relations between these institutions. Another important function of the constitution is that it imposes certain limitations on the use of power and defines the rights as well as duties of the state towards its citizens and the citizens of the state. According to several constitutional experts, a constitution has two roles: it sets up the legal and political structures for the institutions of the state, procedures for legislation and that it must be taken as legitimate by the people of the state for which it is created. According to several legal experts a constitution should not reinforce the majority’s viewpoint. It should be reflective of the broader understanding of rights, liabilities and structural relations between the state and its citizens. Quaid-e-Azam Muhammad Ali Jinnah as early as 1943 elaborated what sort of constitution would Pakistan have. In his presidential address to the All-India Muslim League session on 24 April 1943 he stated: “The constitution of Pakistan can only be framed by the millat and the people. Prepare yourselves and see that you frame a constitution which is to your heart’s desire... the constitution and the government will be what the people will decide.” On 11 August 1947, Quaid-e-Azam addressing the first constituent assembly of Pakistan stated: “I sincerely hope that with your support and your co-operation we shall make this constituent assembly an example to the world. The constituent assembly has got two main functions to perform. The first is the very onerous and responsible task of framing the future constitution of Pakistan and the second of functioning as a full and complete sovereign body as the federal legislature of Pakistan ... .” However, at the time of partition, Government of India Act 1935 was adopted as a working constitution for Pakistan till the new constitution is prepared.

Among the first committees formed for this task was the Committee on Fundamental Rights of Citizen and Minorities. However, the assemblies took almost 9 years to formulate and pass its first but short lived constitution of 1956. Two years later in 1958, President Iskandar Mirza abrogated the constitution, imposed martial law and appointed General Ayub Khan as the chief martial law administrator. Within days the president was deposed by General, later field marshal Ayub Khan. President Ayub in 1962 promulgated a new constitution. In 1969, President Ayub resigned and handed the helm of affairs to the commander-in-chief of the Pakistan Army General Yahya Khan who imposed martial law.

After the dismemberment of Pakistan and creation of Bangladesh in 1971, Yayha Khan ceded power to Zulfikar Ali Bhutto. On 17 April 1972, the first elected national assembly of Pakistan adopted the interim constitution. A 25 members All Parties Parliamentary Committee under the chairmanship of Mahmud Ali Kasuri was established to frame the new constitution. After due deliberations, a draft was prepared which was presented to the national assembly. The National Assembly of Pakistan passed the constitution on 10 April 1973 and the president of Pakistan formally approved it two days later. The constitution of 1973 came into force on 14 August 1973. The most significant feature of the 1973 constitution is that unlike the 1956 and 1962 constitutions, 1973 constitution was prepared and passed by the directly elected representatives of the people of Pakistan and is a consensus document. It has twelve parts and six schedules and 280 articles. The preamble of the 1973 constitution states: “Wherein the state shall exercise its powers and authority through the chosen representatives of the people; wherein adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures; wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; Wherein the integrity of the territories of the Federation its independence and all its rights, including it sovereign rights on land, sea and air, shall be safeguard; Now, therefore, we, the people of Pakistan; Do hereby, through our representatives adopt, enact and give to ourselves, this constitution.” The 1973 constitution opted for a parliamentary form of government with the president as head of state and an elected prime minister as head of the government. The legislature is bicameral comprising of Senate “the Upper house” and the National Assembly “the lower house.” Both of these houses collectively are the Parliament. According to Oxford companion on Pakistan’s History edited by Professor Ayesha Jalal, the 1973 constitution represented a compromise consensus on three issues: the role of Islam; sharing of power between the centre and the provinces and the division of responsibilities between the president and the prime minister. Islam was declared the official religion of the state and the state was named as the Islamic Republic of Pakistan. It was also declared that the highest offices such as the president and prime minister can only be held by Muslims.

The salient features of the 1973 constitution are as follows:

* Federalism

* Parliamentary form of government

* Bi-cameral legislature

* Council of common Interests

* Separation of powers

* Principles of policy

* Fundamental rights

* System of check and Balances

* Representation of women and minorities

* Independence of judiciary

A National Finance Commission (NFC) was also established to provide advice on the revenue distribution between federating units. Another unique feature of the 1973 constitution is that a definition of who is a Muslim is also provided.

In 1977, General Zia-ul-Haq imposed martial law and took several steps to transform Pakistan into a theocratic state. He intensified the Islamization of Pakistan. After achieving legitimacy through the 1984 referendum, Zia government announced non-party elections that were held in 1985. The eighth amendment transformed the parliamentary system into semi-presidential system of governance. Article 58-2 (b) provided the president of Pakistan the authority to dismiss the prime minister and the government. Presidents Ghulam Ishaq Khan and Farooq Laghari dismissed two PPP governments of Benazir Bhutto and one of PML-N under Nawaz Sahrif using the 58-2 (b). In 1997, the 13th amendment was passed by the parliament of Pakistan. Through this amendment, the president was ripped off the power to dismiss the elected government through article 58-2 (b).

In 1999, the second Nawaz Sharif government was disposed-off by the then COAS General Pervaiz Musharraf. He also sought legitimacy through a referendum that was held on 30 April 2002. On 21 August 2002, a Legal Framework Order was issued. As per the LFO, the 2002 elections were held as well as several amendments were made in the constitution. General Musharraf got the 17th amendment passed from the parliament that introduced reserved seats for women and minorities and brought back the president’s prerogative to dissolve assemblies. In 2006 a charter of democracy was agreed upon and signed by Ms Bhutto and Mr Sharif. A hallmark of the CoD was the 18th amendment. As a result of 2008 elections, PPP once again came to the helm of affairs with Yousaf Raza Gillani as the prime minister. Soon after assuming office, the PPP government constituted a special parliamentary committee on constitutional reforms to address the demands coming from diverse quarters to address issues such as provincial autonomy etc. The 18th amendment was passed in April 2010. It practically undid the 8th and 17th amendment. It also nullified the legal cover given to General Musharraf’s 1999 takeover in the Zafar Ali Shah case and through the 17th amendment.

This would now be viewed through Article 6. Two more amendments regarding the judicial appointment and caretaker setup were introduced in January 2011 and February 2012. Responding to the terrorism menace, it was decided to establish military courts. An amendment addressing this: the 21st amendment was passed in January 2015. In June 2016, 22nd amendment was made that revised the eligibility criteria for the appointment of the chief election commissioner and the members of the commission.

1973 constitution is not an ideal document and over the years have faced several controversies and a number of debates have been generated on whether it has served the country well or whether it should be revisited, changed or done away with? Issues such as legal and political structures of state institutions, checks on the institutions, role of the Senate and its effective/ ineffectiveness, the issue of ethnic and religious minorities, parallel legal system in the shape of Sharia court are also raised.

For its critics, there is too much religiosity in it and is reflective more of the ideological than the practical. Others argue that it is: “... neither truly democratic, because it denies many rights to non-Muslim Pakistanis, nor is it genuinely federal since it sees religion as the glue for national unity among diverse ethnic and linguistic groups who have a history of conflict among each other.” Another view is that instead of the constitution, lack of constitutional norms is the real issue. According to those who argue this point: “The bodies that will ultimately interpret and apply the constitution are the legislature, the executive and the judiciary. What are the broader incentives and systemic forces and norms that dictate the strategic and principled reading of a constitutional text by these bodies?”

Among the politicians and political analysts, the 18th amendment is regarded as the hallmark of the 1973 constitution yet many point to certain flaws in it. has it weakened the center too much? Did it devolve the power so much that it has effectively made the center toothless? Those who argue this cite the COVID pandemic and the CPEC as cases in point. This group also raise the question whether the provinces were administratively and politically ready to hold and exercise their power under it?

At times one also comes across the opinion that the country needs a new constitution. Despite its real and perceived flaws and shortcomings, and the current political atmosphere, any such move would have grave and adverse effects for the federation and that Pakistan’s leading constitutional expert and parliamentarian Raza Rabbani is right when he advises against any such action and argues for upholding the 1973 constitution in letter and spirit.

The author is Karachi based political and defense analyst