Major Constitutional Amendments in Constitution of Pakistan 1973

Major Constitutional Amendments
to the 1973 Constitution.
Ahmad Nazir Warraich.
Dean
Executive Development Institute, NSPP.

Sequence of presentation.
• Introduction to Constitutionalism
• Rule of Law
• Definition
• Historical Development
• Common Law system
2

• Constitution as social contract
• Definition: “a body of fundamental principles or established
precedents according to which a state or other organization is
acknowledged to be governed”.
• “The system of beliefs and laws by which a country, state, or
organization is governed: a document that describes this system”
3

• “In public law, The organic and fundamental law of a nation or state,
which may be written or unwritten, establishing the character and
conception of Its government, laying the basic principles to which its
internal life is to be conformed, organizing the government, and
regulating, distributing, and limiting the functions of its different
departments, and prescribing the extent and manner of the exercise of
sovereign powers. In a more general sense, any fundamental or
important law or edict”.
4

WILL OF THE PEOPLE
• AS EXPRESSED BY THE VAST MAJORITY THROUGH THEIR
REPRESENTATIVES REGARDING THE STRRUCTURE OF THE
STATE AND DIVISION OF POWERS BETWEEN VARIOUS
ORGANS AND BROAD OUTLINES OF THE GOVERNMENT WILL
RUN.
5

• Normal Parliament drafted and adopted it .
• Not a Constituent Assembly.
• Dec, 1970 Elections-East Wing lost, however, the same Assembly
adopted it. Unanimity and broad consensus gave legitimacy.
• Hence constitutional amendments always aim for unanimity – not as a
legal requirement but as an element that gives legitimacy.
6

Main features of the 1973 Constitution.
• Total number of Articles: 280
• Parts:12
• Adopted by the Assembly elected in United Pakistan through the
December, 1971 elections (first ever on adult franchise).
7

• Parliament vs Constituent Assembly debate
• Supreme & Sovereign debate. (IHC).
• Main feature of the Constitution; Islamic, Socialism & Provincial
Autonomy.
8

Nature of 1973 constitution
Unanimous adoption-moral authority
1970 Elections. ( with a few abstentions)
PPP-NAP-Jamiat-i-Islam (JUI)
Socialist-Provincial Autonomy-Islamic provisions demanded.
9

PPP election slogans:
 i) “Islam is our faith”
 ii) “Democracy is our politics”
 iii) “Socialism is our economy”
• Hence Articles 2 & 3.
• Article 2 declared Islam as state religion
• Article 3 provided for the elimination of all forms of exploitation
and equitable discrimination,
10

• Another important point was the distribution of powers
between the President and the Prime Minister.
11

• Total number of Articles 280.
• 5 Schedules.
• 12 Parts [in brief the 12 parts deal with the following]
 Part I-deals with the Republic and its territories and other introductory
matters.
 Part II- deals with fundamental rights and directive principles of policy.
 Part III- deals with the federation.
 Part IV- deals with the provinces.
12

 Part V- deals with relations between the federation and the
provinces.
 Part VI- deals with property, contracts, and suits
 Part VII- deals with judicature
 Part VIII-deals with elections
 Part IX- deals with Islamic provisions, and
 Part X- deals with emergency provisions
13

 Part XI- deals with amendment of constitution, and
 Part XII- deals with miscellaneous, temporary, and transitional
provisions.
14

• Part I-deals with the Republic and its territories and other
introductory matters
 Articles 1 to 6.
15

• Part II- deals with fundamental rights and directive principles of
policy.
 Article 7:Definition of the State
 Articles 8 to 28: Fundamental Rights
 Articles 29 to 40: Principles of Policy.
16

• Part III- deals with the federation.
 Articles 40 to 49 : The President
 Articles 50 to 61 : The Parliament
 Articles 62 to 66 : Provisions as to Members of the Parliament.
 Article 67 to 69 : Procedure generally.
 Articles 70 to 77: Legislative procedure
 Article 78 to 89 : Financial procedure.
 Articles 90 to 100 : The Federal Government.
17

• Part IV- deals with the provinces.
 Articles 101 to 105 : the Governors
 Articles 106 to 117 : Provincial Assemblies.
 Articles 118 to 127 : Financial Procedure
 Article 128 : Ordinances
 Articles 129 to 140-A : The Provincial governments.
18

• Part V- Relations between Federation and Provinces.
 Articles 141 to 144 : Distribution of Legislative powers
 Articles 145 to 152 : Administrative relations between federation
and provinces
 Articles 152-A to 159 : Special provisions.
19

• Part VI- Finance, Property, Contracts, and Suits.
 Articles 160 to 163 ; Distribution of revenue between the
federation and the provinces.
20

• Part VII- deals with judicature
 Articles 175 & 175-A: The Courts
 Articles 176 to 191 : The Supreme Court of Pakistan
 Article 192 to 203 : The High Courts
 Articles 203-A to 203 J: Federal Shariat Court
 Articles 204 to 212-B : General Provisions Relating to the
Judicature.
21

• Part VIII-deals with elections
 Articles 213 to 221 : Chief Election Commissioner and Election
Commissions.
 Articles 222 to 226 : Electoral Laws and Conduct of Elections.
22

• Part IX- deals with Islamic provisions.
 Articles 227 to 231 : Islamic Provisions.
23

• Part X- deals with emergency provisions
 Articles 232 to 237 : Emergency Provisions.
24

• PART-XI
• AMENDMENT OF CONSTITUTION.
• PART-XII
• MISCELLANEOUS.
• Services, Armed Forces, General, Interpretation, Title,
Commencement and Repeal & Transitional.
25

• Bicameral & Federal
• Separation of Powers-implicit.
26

Preamble
• Procedure of adoption.
27

Amendments-procedure.
• Article 238
• Article 239 (5) & (6)
28

Chronology of Amendments.
• Total Number of Amendments:26(23)
29

1st Amendment - May1974
• Redefined the boundaries of Pakistan after recognition of
Bangladesh.
30

2nd Amendment – Sep, 1974.
• Defined a Muslim and declared the status of Ahmadi as a
minority and a non-Muslim.
31

3rd Amendment Feb, 1975.
• Extended the period of preventive detention. From one month
to three months.
32

4th Amendment – Nov, 1975.
• Decreed additional seats for minorities, it also deprived courts
of the power to grant bail to any person detained under
any preventive detention.
33

5th Amendment – Sep, 1976.
• Establishment of a separate High Court for Baluchistan-earlier
the Sindh High Court was the court of competence for
Baluchistan as well.
• The powers of the High Courts under Article 199 to grant bail
etc. were restricted.
34

6th Amendment – Dec, 1976.
• Extended the age of retirement of the SC judges to 65 and of
the High Courts to 62.
• Five year term for CJ.
35

7th Amendment – May, 1977.
• Provision of ascertaining majority through a Referendum was
inserted in the Constitution.
• Majority of the total votes cast required.
36

8th Amendment – Nov, 1985.
• An omnibus Amendment to give legal cover to Gen Zia ul Haq’s
martial law and all laws, Orders and actions taken during that
tenure.
• Converting the system from parliamentary to semi-presidential
with a much enhanced role of the President.
37

Swing to strong President.
• 58(2)(b)
• (2) Notwithstanding anything contained in clause (2) of Article
48, the President may also dissolve the National Assembly in his
discretion where, in his opinion,
38

• (a) a vote of no-confidence having been passed against the Prime
Minister, no other member of the National Assembly is likely to
command the confidence of the majority of the member’s of the
National Assembly in accordance with the provisions of the
Constitution, as ascertained in a session of the National Assembly
summoned for the purpose; or
39

• (b) a situation has arisen in which the Government of the Federation
cannot be carried on in accordance with the provisions of the
Constitution and an appeal to the electorate is necessary.
40

• Gen Zia used it in May, 1988 to dismiss the Junejo Govt.
• Ghulam Ishaq Khan used it in August, 1990 to dismiss late
Benazir Bhutto’s Government.
• Ghulam Ishaq Khan used it in 1993 to oust Nawaz Sharif
Government
• Sardar Farooq Khan Leghari used it in 1996 to oust Benazir
Bhutto’s Government.
41

• (Repealed in 1997 through the 13th Amendment)
• (Partially restored through the 17th Amendment)
• (Repealed again through the 18th Amendment).
42

Article 62
• “A person shall not be qualified to be elected or chosen as a
member of the parliament unless –
• (a) he is a citizen of Pakistan;
• (b) he is, in the case of the National Assembly, not less than 25
years of age and is enrolled as a voter in any electoral roll for
election to that assembly;
43

• (c) he is, in the case of Senate, not less than 33 years of age and is
enrolled as a voter in any area in a province or, as the case may be,
the Federal Capital or the Federally Administered Tribal Areas, from
where he seeks membership; and
• (d) he possesses such other qualifications as may be prescribed by
the act of parliament.”
44

Article 63
• “A person shall be disqualified from being elected or chosen as,
and from being, a member of the parliament, if —
• (a) he is of unsound mind and has been so declared by a
competent court; or
• (b) he is an undischarged insolvent;
45

• (c) he ceases to be a citizen of Pakistan, or acquires the
citizenship of a foreign state; or
• (d) he holds any office of profit in the service of Pakistan other
than an office declared by law not to disqualify its holder;
• (e) he is so disqualified by an act of parliament.”
46

9th Amendment
• Not passed by National Assembly, only Senate-a Bill to impose
Shariah as the supreme law of the country.
47

10th Amendment – March, 1987.
• Fixed the interval between two session of the National Assembly
not to exceed 130 Days.(earlier it was 160 Days).
48

11th Amendment-1989
• The Bill was withdrawn-hence not passed.
• It was regarding the revision of the reserved seats of women in
the National and Provincial Assemblies.
49

12th Amendment - 1991
• Establishment of Special Courts and Appellate Court
• 212-B
50

13th Amendment – 1997.
• Removal of 58(2)(b)
• Making the PM strong once again.
51

14th Amendment – July, 1997.
• 63-A
• Disqualification on the basis of defection.
52

15th Amendment – 1998.
• Supremacy of the Holy Quran and Sunnah.
• Amendment not passed.
53

54
16th Amendment-1999.
• The Quota system increased from 20 to 40
years.

17th Amendment 2003.
• Musharraf Era omni bus Amendment to give legal cover to the
Legal Framework Order.
• Re introduction of the right to the President to dissolve
Assemblies, but with court approval.
• Musharraf to hold dual office. Person specific law.
• PM limited to two terms.
56

18th Amendment- April,2010. [Details at slide 71 onwards]
• Deletion of the Concurrent Legislative List
• Greater powers given to the provinces
• Senate strengthened
• President made weaker
• Parliament made stronger.
• Details of the Act given below separately.
57

Election 2008
• Total number PPP of seats in National Assembly :116
• Number of MNAs needed to form Government :172
• Total number of National Assembly seats :342

Election 2008
• PPP total number of seats 116
• Needed to form Government 172
• Total number of National Assembly seats 342

• Provided for the appointment of the Judges of the Supreme
Court of Pakistan and made amendments in the number of
members of the parliamentary committee for the appointment
of Chief Electoral Officers at Election Commission of Pakistan.
• Establishment of the Islamabad High Court.
60

20th Amendment – February, 2012.
• The Supreme Court of Pakistan had directed the Federation to constitute
Election Commission of Pakistan in accordance with the amended
provision of the Constitution of the Islamic Republic of Pakistan and to
legally cover the bye-elections conducted by the Chief Election
Commissioner in the interregnum. Further it is also necessary to give due
independence to the Election Commission of Pakistan and to provide for
the manifestation of the Interim Cabinets. In order to achieve the
aforesaid objectives it is necessary to amend the Constitution of the
Islamic Republic of Pakistan.
61

21st Amendment – Jan, 2015.
• Establishment of speedy trial military courts.
62

22nd Amendment – June, 2016.
• Election Commission of Pakistan.
• This Constitutional Amendment Bill seeks to alter eligibility criteria
for appointment of the Chief Election Commissioner and Members
of the Election Commission of Pakistan and to provide for other
related matters. At present only Judges of Supreme Court or High
Court are eligible for appointment as Chief Election Commissioner
or Members, respectively.
63

After amendment, in addition to retired Judges of the Supreme Court
or High Court, retired senior bureaucrats and technocrats will also be
eligible for appointment as Chief Election Commissioner or a
member. In order to give representation to all Provinces, out of four
Members, one from each Province shall be appointed. Maximum age
for appointment as Chief Election Commissioner (68 years) and a
Member (65 years) is also being fixed.
64

65
• Another important change relates to continuity of the
Commission, whereby instead of all four members retiring
together, two of the members shall retire every two and a half
years. For the first term, the Commission will draw a lot as to
which two members shall retire after the first two and a half
years.

23rd Amendment – Jan, 2017.
• The 23rd Amendment was passed to re-establish the military
courts for further two years till 6 January 2019.
• In 2015, National Assembly passed the 21st Amendment and
created the military courts for the period of 2 years. The period
of two years was expired on 6 January 2017 hence this 23rd
Amendment was passed to re-establish the military courts for
further two years till 6 January 2019.
66

• Reallocation of National Assembly seats among federating
units and allowing election authorities to update boundaries of
constituencies based on provisional results of 2017 Census of
Pakistan.
67

25th Amendment – May,2018.
• Merger of erstwhile FATA with KPK.
68

26th Amendment
• The seats of tribal districts in the National Assembly of
Pakistan will be retained at 12 while their seats in the Khyber
Pakhtunkhwa Assembly have been increased to 24 from 16.
69

Amendments numbered but not passed.
• 9th, 11th & 15th Amendments were not passed.
70

ROAD LEADING TO AND DETAILS OF 18TH AMENDEMENT
71

Charter of Democracy
• The document is divided into 4 basic parts:
• 1-Constitutional Amendments
• 2-Code of Conduct
• 3-Free and Fair Electi0ns
• 4-Civil-Military Relations
72

• Restoration of the Constitution to the 12 Oct, 1999 position with
a few changes.
• Repeal of the 17th Constitutional Amendment
• Appointment of Governors, three services chiefs and the
Chairman Joint Chiefs of Staff Committee to be made by the
Chief Executive (PM).
• Recommendations for appointment of superior judiciary through
a Commission
73

• No judge shall take oath under any PCO
• Reserved seats for women in the assemblies will be allocated
on the basis of the number of votes polled by each party in the
elections.
• Strength of the Senate shall be increased to give
representation to minorities in it.
• Establishment of the Federal Constitutional Court
• Merger of FATA with NWFP(KPK). Etc.
74

Composition of the Parliamentary
Committee on Constitutional Reforms
• 26 Members:
• PPP-5 members
• PML-N – members
• PML – 3 members
• MQM- 2 members
• ANP-2 members
75

• JUI – 2 members
• BNP -1 member
• Jama’at Islamic – 1 member
• The National Party – 1 member
• PPP-Sherpao -1 member
76

• National People’s Party -1 member
• Pakhtonkhwa Milli Awami Party – 1 member
• Jamhoori Watan Party – 1 member
• Independent – 1 member.
77

Federal Features of the 18th Amendment.
4 Broad Thematic Areas ;
• Provincial Autonomy
• Reduction in Presidential Power and consequent increase in
Prime Ministerial Powers
• Control of Discretion of Constitutional office holders
• Increase in powers of the Senate.
78

Division of the changes by Mr. Raza Rabbani.
 Refusal to validate Martial Law
 Provincial autonomy.
 Emergency provisions
 Legislative powers of Parliament.
79

 Key institutions.
 Strengthening Parliament.
 Provincial assemblies.
 Senate’s Role Enhanced.
80

 Restoration of Parliamentary form of Government.
 Removal of discretion.
 Fundamental rights & principles.
 Judiciary.
 Election Commission
 Auditor General.
 Miscellaneous.
81

Salient features of the 18th Amendment.
• In total 102 articles were affected
• Although the committee met over 70 times however in the parliament it
was discusses only for 6 days (a point of concern for some
commentators)
• Renaming the NWFP as KPK
• Expanding the definition of high treason in Article 6, to include
collaborators. Courts cannot validate such an act of high treason.
• Fundamental Rights-Articles 10A, right to a fair trial, Article 19A, Right to
information, and Article 25A, right to education.
82

• Right to a fair trial entails due process.
• Right to Information means that the reasons and noting of the
decision shall be made
• Public.
• Right to education is now made compulsory, and age bracket
has been defined to cover school going age.
83

• INTRA-POLITICAL PARTY elections-article 17 amended to do
away with this requirement.
• Safeguards against discrimination-Article 27, states that
underrepresentation shall be rectified.
• Role of the senate has been enhanced:
• Ordinances cannot be issued while it is
• in session,
• Finance bill can be considered for 14 days
84

• PM and Cabinet now responsible to both NA and the Senate.
• Number of Senate seats increased to 104
• with a view to accommodate minorities
• Compulsory working days from 90-110.
• Annual reports of various bodies to be put before Senate as
well.
85

QUALIFICATIONS FOR ELECTION TO THE PRESIDENT:
• Life time bars in case of conviction removed also with regard to
dismissal from service and compulsory retirement.
• ORDINANCE:
• Can be issued by President, once, and Extended by NA or Senate
once only.
86

• DEFECTION FROM A POLITICAL PARTY.
Reference to be made by Head of Party and Speaker time
bound to forward it.
• EXECUTIVE AUTHORITY OF THE FEDERATION:
Rules of Business shall be made by the Federal Government/
Provincial Government, not President/Governor.
87

• Removal of 3rd time PM and CM Ineligibility clause.
• SIZE OF CABINET:
• Only 11% of the total size.
• Provinces also 11% or 15 [Balochistan].
• BAR ON PRIVATE PRACTICE-of Attorney General and Advocate
Generals
• LOCAL GOVERNMENT – ARTICLE 140A retained and elections to be
held under election commission-no deadlines.
88

• Auditor General of Pakistan
• Given a constitutional 4 years term.
• Islamabad high court-established.
• Appointment of judges-new procedure
• Amended through 19th amendment.
• High court benches-at turbat and mingora.
• Validity of interim orders-against Tax, levy for upto 6 months.
89

• COMPULSORY RETIREMENT OF JUDGES-
In case judges refuse to be transferred they shall not be
deemed to be resigned.
• STRENGTHENING OF THE ELECTION
COMMISSION OF PAKISTAN-further amended by 20th
Amendment.
• Appointment of permanent election commissioners.
90

• CARETAKER GOVERNMENTS-to be established in consultation with
the outgoing PM and Opposition Leader-further amended through
20th Amendment.
• IMPOSITION OF EMERGENCY-consent of the concerned provincial
assembly needed.
• OMISSION OF THE 6TH AND 7TH SCHEDULES.
• CHANGES TO THE OBJECTIVES RESOLUTION-’freely’
91

• REPEAL OF THE 17TH AMENDMENT AND
• RELATED ORDERS.
• ABOLITION OF THE CONCURRENT LIST
• CHANGES TO THE FEDERAL LEGISLATIVE
• LISTS I & II
• 47 Articles of the Concurrent List
• One item (Boiler) has been shifted to
• Federal Legislative List I
92

• Two items (Electricity and legal, medical and other
professions )
• Shifted to Federal Legislative List II
• Rest have been devolved to the provinces.
• 1 new item has been added the FLL I, that is
• ‘International treaties, conventions and agreements
• and arbitration.’
93

• The National Assembly shall meet by the twenty first day after the
General Elections.
• The Governor shall act on the advice of the provincial government.
Can ask for reconsideration within 15 days, if the same resent, than
has to assent within 10 days. Governor has to give assent to a bill
within 10 days.
94

OVERVIEW
• Press has focussed on the reduction in President’s powers,
and executive – judicial institutional relations.
• The rest were not highlighted, although as discussed above,
very important changes have been brought about.
95

Council of Common Interests
Purpose:
• The Council of Common Interests is meant for ‘participatory
management both by the Federation and the Federating units
through Council of Common Interests’.
Composition:
• The Prime Minister-Chairman of the Council.
• The Chief Ministers of the Provinces.
96

• Three Members from the Federal Govt. to be nominated by
the PM.
• Functions:
• The Council shall formulate and regulate policies in relation to
matters in Part II of the FLL, and shall exercise supervision and
control over related institutions.
97

Operational arrangements:
• The Council shall be constituted within thirty
• Days of the PM taking oath.
• The Council shall have a permanent Secretariat
• And meet at least once every 90 Days.
• Earlier performance-convened only 11 times over a time of 38
years.
98

National Economic Council
Purpose:
• Review overall economic condition of the country and shall
formulate advisory plans with regard to the financial,
commercial, economic and social policies, to ensure balanced
development and regional equity.
99

Composition:
• PM as Chairman
• CMs and one member from each province
• 4 other members nominated by the PM.
• Working
• Council shall meet at least twice every year
• It shall be responsible to the Parliament.
100

Challenges Confronted.
• Gaps
• Implementation hiccups
• Dangers-Senator Raza Rabbani’s Fears:
• He expresses fears that there are
• strong forces within Pakistan
• which are against the spirit of devolution
• and suggests continued vigilance.
101

Gaps
• Issue of Drug Regulatory Authority
• Article 140A-aspirational- no deadlines provided.
• Intra party elections requirement removed from the
Constitution.
102

Implementation Hiccups
• Theory is in place.
• Has the practice been adjusted.
103

Dangers
• Federal Bureaucracy.
• Paternalism.
• Centripetal Forces.
• Fiscal decentralisation-Popitz law
• Tussle between political parties (CCI)
• Competitive Federalism.
104

• ‘Hammering out a political consensus in the Parliament where
no party enjoys even a simple majority, let alone the required
two-third majority to amend the Constitution, reflects the
maturity of the elected representatives’.
105

Way Ahead
• The maturity of the political classes.
• The future of provision of solid fiscal base.
• Attitude of the Federal bureaucracy towards devolution of
power.
• Overall, it has been hailed as a major step forward on the road
to federalism and democracy.
106

COMPARATIVE JUDICIAL APPOINTMENTS PROCEDURE
107

Comparative Judicial Appointments Procedure
• UK.
• The Judicial Appointments Commission (JAC) is an
independent commission that selects candidates for judicial
office in courts and tribunals in England and Wales, and for
some tribunals whose jurisdiction extends to Scotland or
Northern Ireland.
108

• The JAC selects candidates for judicial office on merit, through
fair and open competition, from the widest range of eligible
candidates.
• The Commission was set up on 3 April 2006 – under the terms
of the Constitutional Reform Act 2005 – in order to maintain
and strengthen judicial independence by taking responsibility
for selecting candidates for judicial office out of the hands of
the Lord Chancellor and making the appointments process
clearer and more accountable.
109

• The JAC is an executive non-departmental public body, sponsored by
the Ministry of Justice. Its aims and objectives are agreed with the Lord
Chancellor.
• There are 15 Commissioners, including the Chairman. All are recruited
and appointed through open competition with the exception of three
judicial members who are selected either by the Judges’ Council or the
Tribunals’ Council. Membership of the Commission is drawn from the
judiciary, the legal profession, non-legally qualified judicial officer
holders and the public.
110

• India
• Per the constitution, as held by the court in the Three Judges Cases –
(1982, 1993, 1998), a judge is appointed to the Supreme Court by the
president on the recommendation of the collegium — a closed
group of the Chief Justice of India, the four most senior judges of the
court and the senior-most judge hailing from the high court of a
prospective appointee. This has resulted in a Memorandum of
Procedure being followed, for the appointments.
111

• Judges used to be appointed by the president on the advice of
the union cabinet. After 1993 (the Second Judges' Case), no minister,
or even the executive collectively, can suggest any names to the
president, who ultimately decides on appointing them from a list of
names recommended only by the collegium of the judiciary.
Simultaneously, as held in that judgment, the executive was given the
power to reject a recommended name. However, according to
some the executive has not been diligent in using this power to reject
the names of bad candidates recommended by the judiciary.
112

• The collegium system has come under a fair amount of
criticism. In 2015, the parliament passed a law to replace the
collegium with a National Judicial Appointments
Commission (NJAC). This was struck down as unconstitutional
by the Supreme Court, in the Fourth Judges' Case, as the new
system would undermine the independence of the judiciary
113

• USA.
• President nominates
• Senate Judicial Committee approves.
114

Current Scenario/Issues
 Quick passage through parliament meant lack of detailed open
discussion, leaving some issues not having been fully thrashed
 Perceived capacity issues of provinces
 Financial issues of federal government
 Talk of presidential system and rolling back of 18th Amendment by
some opposition parties
115

 Provincial assemblies are not bicameral.
 There is no requirement of committee stage.
 This in view of some commentators raises concerns regarding
full deliberation of a proposed bill.
116

Major Constitutional Amendments in Constitution of Pakistan 1973

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