When Pakistan got independence from its colonial master-Great Britain, it adopted Indian Independence Act of 1947, which was a replica of Indian Independence Act of 1935, with some amendments. However, the infant state was supposed to chalk out a future constitution as per the aspirations of its people. The path to constitution making was neither simple nor easy particularly in a county that was home to different ethnic groups.
OBJECTIVE RESOLUTION AS A FOUNDATION STONE OF FUTURE CONSTITUTION:
The then prime minister of Pakistan, Liaqat Ali khan in order to meet the popular demand of the people of the new country to make constitution in line with Islamic principles introduced ,Objective Resolution in Constituent Assembly of Pakistan. It was passed by Constituent Assembly on 12 March, 1949. It laid down that sovereignty belongs to Allah and that Pakistan would be a federal state. It further stated that judiciary would be independent and fundamental rights would be granted to people in the new polity-Pakistan.
EARLY CONSTITUTIONAL DOLDRUMS:
The Constituent Assembly of Pakistan that was entitled to perform dual functions of working as a Constituent Assembly and performing the role of a legislature set a Basic Principle Committee for hammering out various constitutional points. A constitutional debate arose over various points. There was a debate that whether the future constitution would be a unicameral or bicameral one. Another question was related to the role of religion in the country. Similarly, sharp disagreement was found on the question of language. West Pakistan demanded Urdu to be adopted as the national language of Pakistan whereas East Pakistan wanted to have Bengali as the national language of Pakistan. Lastly, there was hardly any consensus on division of seats of Parliament between East and West wing.
CONSTITUTION OF 1956:
The unfortunate ,constitutional disagreements among people resulted in a delay in constitution making for 9 (nine) long years. It was only in 1956 that Pakistan adopted its first ever constitution. To one’s utter dismay, the constitution was abrogated in 1958 and the first ever martial law was imposed on the country by Iskandar Mirza. He appointed Ayub Khan as a martial law administrator to further enhance his powers.
CONSTITUTION OF 1962: TAILORED MADE by AYUB KHAN:
In 1962, another ,constitution was given to the country. Unlike its predecessor which was parliamentary in nature, the new constitution gave presidential form of government. Without a shadow of doubt and unlike the claims of the then president, Ayub khan, the new constitution was tailored made for Ayub Khan and granted him almost absolute powers. The new executive chief was forced to resign in 1969 due to deteriorating political situation in the country. Ayub khan was replaced by general Yahya khan, martial law was declared and the constitution of 1962 was suspended.
CONSTUTION OF 1973: a milestone achievement in the constitutional history of Pakistan:
After separation of east wing from its mother country Pakistan and by becoming an independent state of Bangladesh, Zulfiqar Ali Bhutto took over the charge of the office of president and introduced a new constitution on 14 August, 1973. The ,constitution of 1973 was perhaps the greatest achievement of Zulfiqar Ali Bhutto as it was adopted after achieving consensus of almost all major political parties which was not less than a miracle.
NOVEL FEATURES 1973 CONSTITUTION:
The new constitution provided for provincial autonomy in reaction to the loss of Bangladesh as the latter felt marginalized in the constitutional set up of Pakistan another noteworthy feature of 1973 constitution was that it added an article dealing with High Treason. Along with abrogating and attempting to abrogate, planning to subvert and conspiring were also declared as acts of treason. This article was inculcated to keep a check on military intervention and to prevent coups in future.
CONSTUTIONAL CHALLENGES AFTER 1973 CONSTITUTION:
Nonetheless, the country was still plagued with constitutional and political crisis even after the comprehensive constitution of 1973. Despite adding Article 6 that dealt with high treason, the military rulers could not be held back from intervention in politics. In 1977, army chief ,Zia-ul-Haq proclaimed martial law and suspended the constitution. Though the constitution was revived in 1985, such amendments were made in constitution that altogether changed the spirit of constitution.
The president was entitled to dissolve Parliament and dismiss elected governments. The amendment was used by Zia ul Haq and his successors to dismiss elected government of Nawaz Sharif and Benazir Bhutto in early 1990s. They took the pleas that these governments were involved in corrupt practices. IN 1997, Nawaz Sharif once again made it to the office of the Prime minister only to be removed again after two years- this time by another army general: Pervaiz Musharraf. Hence, the country witnessed a third martial law in its brief history.
DAMNING EFFECTS OF MILLITARY COUPS ON JUDICIARY:
The successive military coups have damning effects on almost all organs of a state but it weakened judiciary the most. The custodian of constitution- judiciary, failed to enjoy any effective power during military rule. In fact, those judges were appointed who would serve the interests of military junta. To illustrate, the actions of Musharraf of taking over government from civilian rulers was validated by judiciary under state necessity. Judiciary granted enormous powers to Musharraf including the power to amend the Constitution. Musharraf, thus, was not restrained or kept in check by any organ of the state. In 2007, he under Provisional constitutional order (PCO) introduced a series of law that put curbs on media and empowered military courts to try critics of government. When judiciary refused to sign this document, efforts were made to ,impeach the then chief justice of Supreme Court on corruption charges. Civil society and lawyer’s community started a massive campaign against Musharraf and forced him to resign in 2007.
ELECTIONS IN 2008:
As a relief for the people of Pakistan, elections were held in 2008 in which Pakistan People ‘s Party (PPP) emerged victorious and democratic process was kept on track again.
18TH CONSTITUTIONAL AMENDMENT:
IN 2010, PPP led government introduced ,18th Constitutional amendment which was a breakthrough in the constitutional history of Pakistan. The notorious article 58(2)(B) which empowered president to dismiss parliament and prime minister was removed. Further, the power of president to appoint military chief was also removed. Autonomy was granted to provinces in actual spirit. Concurrent list was abolished and all those powers were granted to provinces. It is, hence, rightly stated that 18th amendment is the greatest achievement of political parties in Pakistan only second to the 1973 Constitution of Pakistan.
CONSTITUTIONAL PROBLEMS STILL HAUNTUNG THE COUNTRY:
Unfortunately, there still exist constitutional problems in Pakistan. Under 18th constitutional amendment, financial share of provinces has been enhanced due to which Centre faces financial constraints.
Additionally, some subjects have been transferred to provinces such as education, thus, restraining central government from legislating on the issues. To say, the previous government led by Pakistan Tehreek-i- Insaf (PTI) wanted to introduce uniform curriculum across the country but education being a provincial subject acted as a barrier in its way. In the same manner, the current constitution though deals with horse trading and floor crossing and has declared both of these acts as illegal and liable to punishment, there exist many loopholes in the constitution that prevent the culprits from being held accountable.
Not denying the fact that the Constitution of 1973 is the most comprehensive and holistic constitutional document in the history of Pakistan, it is not without faults. Though the previous government of PTI was removed from office before completion of its tenure, but luckily this time it was not done by a military ruler but opposition parties in parliament. This action may have its own set of repercussions, but from constitutional point of view, it was done in a democratic manner. It can be hoped that enlightened masses and the role of 4th organ of state i.e. media military has been kept in check now.