By the end of World War II, the British imperial government granted independence to its Indian colony and for that matter the British Parliament enacted the Indian Independence Act, 1947. Under the Act, the British Crown relinquished its sovereign powers over India and transferred those powers to the newly established dominions of India and Pakistan on 14 August 1947. The Government of India Act, 1935, hitherto the constitution of British India, was amended to bring it in consonance with the aims and objectives of independence as laid down in the 1947 Act. The combination of these two constitutional instruments served as an interim constitutional order for both countries until their respective constituent assemblies adopted their own constitutions.

Following independence, it took three Governor Generals, four Prime Ministers, two constituent assemblies (1947-1954 & 1955-1956), and nine years of protracted constitution making process to produce the first constitution of Pakistan in 1956. It was rejected on the final day of its adoption (29 February 1956) by all Hindu minority parties and the largest Muslim political party (the Awami League) from East Pakistan – demographically the largest province. Due to lack of consensus among ethnonational groups, the 1956 constitution failed to arrest the political instability that engulfed the entire country following its promulgation, ultimately leading to its abrogation and imposition of the first martial law in the country on 7 October 1958. Between its promulgation and abrogation, four federal ministries changed. The military dictator General Ayub Khan, who had taken over the reins of power, enacted the 1962 constitution to the country through an executive order. The current constitution, enacted by the third constituent assembly in 1973, was twice suspended by military coups of General Zia-ul-Haq (1977-1985) and General Musharraf (1999-2002), and at the time of its ‘restoration’, both in 1985 and 2002, the military regimes amended it in ways that fundamentally changed its Islamic and federal character. One such amendment on both occasion was the grant of power to the president to dissolve the lower house of the federal legislature. With this power in the hands of presidents – which office was usurped by both dictators at the time of restoring the constitution – the ensuing parliaments on both occasions were forced to give constitutional cover via the 8^th and 17^th Amendments to the acts of suspensions of the constitution, and all other acts of the military dictators during the period between the suspension and restoration of the constitution.

The Process of Adoption of the Current Constitution:

In the constitution making processes in the three constituent assemblies of Pakistan (1947-1954, 1955-1956, 1972-1973), producing the 1956 and (current) 1973 constitutions, the Islamic character of the state and federalism were the two vexatious questions that prevented the forging of consensus amongst ethnonational groups on constitutional design of the instruments that have governed the polity thus far.

Federal discourse in Pakistan has been and continues to be structured by two antithetical visions of identity, both articulated by two competing forces. The centripetal forces, representing the state elites, have aimed at creating a homogeneous society and a monolithic national identity, employing Islam as a unifying force in the service of building a centralized Muslim Nation State, despite the multiethnic and deeply divided character of the society. The centrifugal forces, representing the diverse ethnic, linguistic, cultural and regional groups, on the other hand, have been pushing back against the officially sponsored nation- and state-building project and making counter-demands for constitutional recognition of the multiethnic character of the polity and their accommodation in a multinational framework within a decentralized federal order. The diverging visions have not only structured the federal discourse but also shaped the design of all constitutional instruments.

Members of the constituent assembly (1972-1973) that drafted the current constitution were elected in 1970 when the country was still united. The secession of East Pakistan (present Bangladesh) in 1971 altered the political landscape of the country in fundamental ways. Nevertheless, no fresh elections were held and members elected from West Pakistan in the 1970 elections formed the constituent assembly for Pakistan.

The 1973 constitution did not enjoy the support of two out of the then four provinces of Pakistan, i.e., NWFP (now Khyber Pakhtunkhwa) and Balochistan. The secession of East Pakistan had changed the demographic composition of the polity as Punjab became the largest province with Punjabis constituting more than 60% of the population, exceeding the combined strength of all other major ethnonational groups from the remaining three provinces. The Pakistan People Party (PPP) had majority seats in the assembly from the two largest provinces of Punjab and Sindh, and thus formed a federal government and provincial governments in the two provinces. The National Awami Party (NAP) won majority seats in the NWFP and Baluchistan provinces, and formed the opposition in the constituent assembly. The PPP rejected appeals of the NAP for the incorporation of consociational principles in the draft constitution to protect the interests of minority ethnonational groups. NAP’s demands included the constitutional recognition of the multiethnic character of the society, the establishment of a strong upper chamber in the federal legislature, and the adoption of a non-majoritarian framework of constitution making process based on the equality of all four ethnonational groups from Punjab, Sindh, NWFP and Baluchistan. The non-accommodation of these demands led to NAP’s boycott of the constitution making proceedings at a time when the assembly had approved only one-third of the provisions of the draft constitution. Out of 400 amendments proposed by the opposition, only one was accepted during their stay in the assembly. The remaining two-thirds of the draft constitution was adopted in the absence of opposition members, leading to the lapse of sixteen hundred amendments moved by the opposition members in those parts of the draft constitution. The opposition came to the assembly on the final day of the constitution’s adoption and the majority of its members signed the draft constitution under the threat of prosecution on treason charges.  

Prior to the separation of Pakistan in 1971, state elites, mostly coming from Punjab, demanded anti-majoritarian constitutional protections against the possible domination of the Bengali majority from East Pakistan, which constituted 56% of the total population of the then Pakistan. Nevertheless, in post-1971 Pakistan, after Punjab became the largest province, comparable demands of ethnonational minority groups for a non-majoritarian constitution making process and the incorporation of consociational principles in the draft constitution were rejected. Accordingly, the composition of the Constitution Committee entrusted with making the draft constitution, as well as in the Interim Constitution of 1972, reflected the dominance of representatives from the biggest provinces, despite the significant politically salient group cleavages in Pakistani society.

The 1973 Constitution

The 1973 constitution contains 280 articles and 7 schedules, and establishes a centralized federal system.  

The Federal Executive:

The President is the head of state, represents the unity of the republic and is elected by a simple majority of an electoral college consisting of members of the two houses of federal legislature and of the four provincial legislatures. The President can be removed if he or she is found unfit to hold office due to physical incapacity or impeached in case of violation of the constitution in a joint sitting of the federal houses by votes of not less than two-thirds of its total membership.

The Prime Minister is elected by members of the lower house of the federal legislature after every general election, and other cabinet ministers are appointed by the President according to the advice of the Prime Ministers. The executive authority of the federal government is exercised in the name of the President by the Prime Minister, or through him, by the federal ministers. The federal cabinet under the Prime Minister aids and advises the President in the exercise of her or his functions. However, in the performance of her or his functions, the President is to act on and in accordance with the advice of the cabinet or the Prime Minister, except in cases where the constitution has vested the President with discretionary powers. The Prime Minister is to keep the President informed about all matters of internal or foreign policy, and all legislative proposals the federal cabinet intends to bring before parliament.

The President may not remove the Prime Minister unless the President is satisfied that he or she has lost the confidence of the majority in the lower house. For that purpose, the President has to summon a meeting of the lower house and require the Prime Minister to obtain a vote of confidence. The Prime Minister could also be removed on the initiative of the lower house when the house passes a vote of no-confidence against her or him. The federal cabinet is collectively responsible to both houses of parliament.

The President can summon, prorogue, address and send messages to either house of the federal legislature, separately or jointly. The President also has the power of dissolving the lower house of the federal legislature either on the advice of the Prime Minister or on her or his own initiative if the house passes a vote of no confidence against the Prime Minister and there is no other member who commands the support of the majority in the house. The President assents to bills passed by the federal legislature within 10 days. He or she may return a bill to the legislature with a message that the whole or any part of the bill be reconsidered and any amendment proposed by her or him, in which case the bill will be reconsidered by the joint sitting of the legislature and if passed by majority votes, it is sent to the President for assent. The President will then give assent to the bill within 10 days or the bill will automatically become a law.

The Federal Legislature:

Parliament, the federal bicameral legislature, consists of the President, the lower house (National Assembly) and upper house (Senate). Seats in the National Assembly are apportioned on the basis of population with a total of 342 seats distributed amongst the four provinces, FATA (Federally Administered Tribunal Areas) and the Federal Capital. The Assembly is elected for five years unless the President dissolves it sooner.

The Senate has a total of 104 seats with each of the four provinces having 23 seats (14 general, four women, four technocrats, and one non-Muslim minority seat in each province), thus giving equal representation to each province, eight seats for the FATA, and four seats for the Federal Capital, including two general, one woman and one technocrat seat. Elections to fill seats in the Senate allocated to each province are held in accordance with the system of proportional representation by means of the single transferable vote by the provincial legislative assemblies. The Senate has a term of six years, and is not subject to dissolution. 

Except money bills, both houses of the federal legislature have equal powers in all legislative subjects under federal jurisdiction. A non-money bill can originate in any of the two houses and in case of disagreement between the two houses, it has to be considered in a joint sitting, and if passed by the votes of the majority of the members present and voting, it is presented to the President for assent. A money bill can only originate in and be approved by the National Assembly. The Senate can make recommendations on a money bill, which the National Assembly may or may not adopt. Thus, passing a money bill is the exclusive domain of the National Assembly. For any bill to become a law, the assent of the President is mandatory. When a bill is presented, the President must either assent to the bill within 10 days or may, if it is not a money bill, return it to a joint sitting of the parliament with a message to reconsider the bill or any part of it. Once a simple majority of the joint sitting of parliament approves the bill after such reconsideration, it becomes a law, whether or not the President signs the bill.

The constitution provides for the federal legislative list with 71 subjects and the provincial legislatures have exclusive powers of law making on subjects not enumerated in the federal legislative list. A provincial assembly may voluntarily delegate to the federal legislature the power of law making on subjects on which it is competent to make laws. The executive authority of federal and provincial government extends to matters on which the federal and provincial legislatures respectively have the powers of law-making.

The Judiciary:

The 1973 constitution provides for a hierarchy of the judicial branch with the Supreme Court of Pakistan on top and five High Courts subordinate to it, each working in the four provinces and the federal capital. Lower courts in each province are under the administrative control of their respective high courts. In addition to being appellate courts in civil and criminal cases, the Supreme Court and the High Courts have original constitutional jurisdiction in certain cases. As a federal court, the Supreme Court has original and exclusive jurisdiction to settle any dispute between and amongst the federal and provincial governments. However, while deciding such disputes, the Supreme Court’s power is limited to issuing ‘declaratory judgments only’. The constitution also provides for a Federal Shariat Court and vests it with the universal jurisdiction to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam.