Under Zulfiqar Ali Bhutto’s government, Pakistan’s constitution was passed by the National Assembly on 10 April 1973. Made effective on 14 August 1973, it was the third of Pakistan’s constitutions, after those of 1956 and 1962, and it remains in force today.
Democracy and Fundamental Rights
One of the most important ways in which the 1973 constitution departed from the previous two was that it was the first to be framed by elected officials. The first constitution of 1956 was described by Mara Malagodi as being “passed by a second constituent assembly, which was de facto controlled by the unelected executive (the governor general supported by the army),” while Asad Rahim Khan, barrister and Advocate of the High Court, places the word “Constitution” in inverted commas in relation to the 1962 constitution, which he described as “handcrafted by just one man — Ayub’s favourite lawyer and wit, Manzur Qadir (assemblies of elected reps were perhaps thought ill-suited to drafting such a thing).”
Rather confusingly, the fundamental rights of the 1962 constitution were originally tucked away under the Principles of Policy, only to be given greater pride of place and a more thorough description through the Constitution (First Amendment) Act, 1963. As compared with the 1962 constitution, the 1973 constitution expanded upon the safeguards to arrest and detention (10), property rights (24) and the freedom of association to cover political parties (17(2)). It prevented children under 14 from being employed in hazardous work (11(3)) and added articles that protect against double punishment and self-incrimination (13), and affirming the inviolability of the dignity of man (14), including a prohibition on torture for “extracting evidence.”
Despite Article 224(2) of the constitution, which necessitates elections to be held within 90 days of the dissolution of a Provincial Assembly, Prime Minister Shehbaz Sharif referred to the verdict as the “murder of justice”
Despite this, a report by Amnesty International stated that the extent to which fundamental rights could be guaranteed throughout Bhutto’s tenure was “severely limited” by the state of emergency that remained in force since November 1971 due to the outbreak of war between West and East Pakistan, leading to Bangladesh’s independence. Indeed, then-Prime Minister Bhutto and President Fazal Elahi Chaudhary signed off an order the day after the 1973 constitution came into force, suspending specific fundamental rights, including freedom of movement, assembly, association and speech, safeguards as to arrest and detention and equality of citizens. Amnesty International also raised concerns over the Constitution (Fourth Amendment) Act, 1975 and the Constitution (Fifth Amendment) Act, 1976, for undermining the independence of the judiciary and reducing its ability to protect fundamental rights, perhaps a reference to the amendments of Article 199 in particular.
Moreover, only a year after the constitution was introduced, Bhutto conceded to pressures to enact the Constitution (Second Amendment) Act, 1974, constitutionally declaring Ahmadis to be non-Muslims. This amendment would help to facilitate the criminalisation of the Ahmadiyyah community exclusively through General Zia-ul-Haq’s Ordinance XX of 1984. The argument that Ahmadis were non-Muslims was used again by the Federal Shariat Court in the case of Mujibur Rehman v. The Federal Government of Pakistan to reject the Ahmadiyyah challenge to the Ordinance the year after it was adopted.
Martin Lau argued in 2006 that the case of Zaheeruddin v. The State in 1993, in which the Ahmadiyyah community brought their case before the Supreme Court, had “remained the only case in which the Supreme Court expressly restricted a constitutionally guaranteed right on the basis of Islamic law,” which was affirmed as the positive law of the land, and so it was argued that fundamental rights could not violate Islamic injunctions. The Court ruled that Article 20 of the constitution, which guarantees Ahmadis and all others the right to religious freedom, could also be curtailed if its exercise disrupts law and order.
The Constitution and Islam
While all three constitutions included the Objectives Resolution as the preamble, thereby affirming God’s sovereignty, the 1973 constitution was essentially the most Islamic, though the previous two did contain some Islamic provisions. Articles 197-198 of the 1956 constitution directed the President to establish an organisation for “Islamic research and instruction,” to not enact any laws repugnant to Islamic injunctions, and creation of a Commission to recommend how to bring the laws into conformity with Islam. The original 1962 constitution, while having removed “Islamic” preceding “Republic of Pakistan” (a move later reversed), expanded upon these two institutions through Articles 199-207, establishing both the Islamic Research Institute and the Advisory Council of Islamic Ideology, whose members would be appointed by the President to, among other things, recommend to the government how to encourage Muslims to live according to Islam.
These articles effectively provided for a body that would become the Council of Islamic Ideology with an expanded membership under the 1973 constitution. Islam was also declared to be the state religion of Pakistan, and freedom of speech was made “subject to any reasonable restrictions imposed by law” in the additional interest of the “glory of Islam.” But for some, these Islamic provisions were insufficient, as exemplified by the case of Mr Badi-uz-Zaman Kaikaus v. President of Pakistan in 1976. A retired judge of the Supreme Court wanted the Lahore High Court to declare, among other things, that the 1973 constitution and its accompanying legal system were unIslamic. It was the following year that the Pakistan National Alliance, a nine-party coalition, formed to oppose Bhutto’s government and promote the establishment of Nizam-i Mustafa in Pakistan.
Suspensions of the Constitution
It was under General Zia, having led a coup against Bhutto, later overseeing his execution, that the 1973 constitution was first suspended, and it would be held in abeyance from the imposition of martial law on 5 July 1977 until the Revival of the Constitution of 1973 Order on the 2 March 1985. This is despite Article 6 of the constitution, which states that any “person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution… shall be guilty of high treason.” Though Bhutto’s wife, Nusrat Bhutto, would call into question the legality of Zia’s coup and subsequent actions through Begum Nusrat Bhutto v. Chief of Army Staff, Zia was validated using the doctrine of necessity. Zia went on to build upon earlier steps towards Islamisation by amending the constitution, laws and the legal system undemocratically through presidential and martial law orders and ordinances, the validity of which would be upheld by the substituted Article 270A of the constitution introduced through the Constitution (Eighth Amendment) Act on the 11 November 1985.
A new Article 58(2) was also entered into the constitution through the Eighth Amendment, granting the President the discretionary power to dissolve the National Assembly. Zia would employ 58(2)(b) in May 1988 to dismiss the first and only elected government during his tenure (though the elections of 1985 were boycotted by the parties united under the Movement for the Restoration of Democracy). Zia’s reforms would have lasting implications for religious minorities, especially the Ahmadiyyah as alluded to above, and women, as well as in bolstering the powers of the President. It was not until 2010 that Article 58(2)(b) was removed through the Constitution (Eighteenth Amendment) Act, 2010.
The 1973 constitution would be suspended and held in abeyance again under General Musharraf on 3 November 2007 through the Provisional Constitution Order after having removed the Chief Justice, which precipitated the lawyers’ protest. The constitution would be revived shortly after on 15 December 2007 through the Revocation of Proclamation of Emergency Order, 2007, and, despite his resignation in 2008 to avoid impeachment, he was charged with high treason under Article 6 of the constitution and was sentenced to death in December 2019. This death sentence was annulled by the Lahore High Court in January 2020, though he would eventually succumb to illness in Dubai in February of this year.
Sadly, there is talk of martial law today. In response to the refusal of the Supreme Court to form a full bench to deliberate on the Pakistan Tehreek-e-Insaf’s (PTI) petition against the Election Commission on its postponement of the Punjab provincial elections, Pakistan’s Foreign Minister, Bilawal Bhutto, warned that a constitutional crisis and martial law/state of emergency could be invoked if they did not form a full bench. The Supreme Court’s three-member bench went ahead and declared the postponement of the provincial elections till October as “unconstitutional,” and the Election Commission has since settled on the revised date of 14 May. Despite Article 224(2) of the constitution, which necessitates elections to be held within 90 days of the dissolution of a Provincial Assembly, Prime Minister Shehbaz Sharif referred to the verdict as the “murder of justice”, equating it with the “judicial murder” of Bhutto, the anniversary of which fell on the same day as the verdict. We will have to wait and see what the government’s next steps are and whether the provincial elections will indeed be held in May as directed.