Pakistan’s Constitution: Key Institutions and Features
Federal Shariat Court
Under the presidential order in 1980, a court was constituted and given constitutional status later on. The Federal Shariat Court has jurisdiction to introduce Islamic principles in a statute as contained in the injunctions of Islam. It can give its opinion to the government concerned about an existing statute.
Relevant Provisions
Article 203.
Composition
The Federal Shariat Court consists of eight Muslim judges, including the Chief Justice. They are appointed by the President of Pakistan.
Object
The object of the establishment of the Federal Shariat Court is to examine and decide questions of repugnancy of law to Islam as laid down in the Holy Quran and Sunnah.
Qualification
Out of the seven judges, four should be present or former judges of a High Court. Three of the judges are to be experts on Islamic law. Such a person shall be appointed as Chief Justice who has been either a judge of the Supreme Court or is a permanent judge of a High Court or is qualified to be appointed as a judge of the Supreme Court.
Tenure
The Chief Justice and other judges shall be appointed for a period of three years.
Extension of Period
The President may extend the term of their office.
Acting Judge
The President may appoint any person to be the judge of the Shariat Court in case of a vacant position in the court.
Oath Taking
The judge shall take an oath before the President.
Principal Seat of the Court
The principal seat of the court shall be at Islamabad, but the court may sit in other cities.
Salary and Facilities
The Chief Justice, in case he is not a judge of the Supreme Court, shall be entitled to salary, allowances, and privileges as admissible to the judge of the Supreme Court. The other judges of the Federal Shariat Court shall be entitled to salary and privileges admissible to a High Court judge.
Jurisdiction, Power, and Function of the Shariat Court
- Review of Laws Against Islam:
- Revision on Decisions of Subordinate Court: The Federal Shariat Court is authorized to review the judgments of criminal courts under any law relating to the enforcement of Hadood. The Federal Shariat Court is competent to suspend the sentence and can release the accused on bail.
- Appellate Jurisdiction:
- Suo Motu Jurisdiction: The Federal Shariat Court is empowered to examine any law under its suo motu jurisdiction.
- Powers: The Federal Shariat Court can exercise the following powers:
- Appearance of Person
- Production of Documents
- Framing of Rules: The Federal Shariat Court can frame the rules for the conduct of its own proceedings.
- Opinion of an Expert
- Contempt of Court
- Revise its own judgment
Appeal to Supreme Court
Any party aggrieved by the decision of the court may prefer an appeal to the Supreme Court within 60 days of its decision.
Conclusion
To conclude, the Federal Shariat Court consists of eight Muslim judges appointed by the President. The principal seat of the court is at Islamabad. The court has the power to declare a law repugnant to the Holy Quran and Sunnah. It can punish a person on charges of contempt and shall have the powers of a civil court for the purpose of performing its functions.
Islamic Ideology
The Constitution of 1973 is regarded as an Islamic constitution because Islam is the state religion of the country, and according to the constitution, steps shall be taken to enable Muslims to order their lives in accordance with Islam.
Relevant Provisions
Articles 227-231.
Composition of the Council of Islamic Ideology
The Islamic Council has a Chairman and 8 to 20 members.
- So far as practicable, various schools of thought are represented in the council.
- Not less than two members are persons, each of whom is or has been a judge of the Supreme Court or the High Court.
- Not less than four members are persons, each of whom has been engaged for a period of not less than fifteen years in Islamic research or institutions.
- At least one member is a woman.
Appointment of Members
Members of the Council of Islamic Ideology are appointed by the President of the Islamic Republic of Pakistan on the advice of the Prime Minister.
Qualifications for Members
Members should have the following qualifications:
- Knowledge of the principles and philosophy of Islam.
- Knowledge of Islamic law and Fiqh.
- Knowledge of the political problems of Pakistan.
- Knowledge of the economic problems of Pakistan.
- Knowledge of the legal and administrative problems of Pakistan.
Functions of the Council of Islamic Ideology
Functions of the Council of Islamic Ideology are as under:
- Advisory Functions: The Council of Islamic Ideology shall advise the President, Parliament, or Provincial Assembly about bills, whether they are in accordance with or inconsistent with Islamic Principles.
- Research Functions: The Council of Islamic Ideology conducts research on different aspects of laws enforced in Pakistan.
- Reporting Function: The Council of Islamic Ideology prepares its reports on the recommendations and presents them to the Parliament.
- Explanatory Function: If there is any ambiguity in the provisions of the Constitution of the Islamic Republic of Pakistan on the subject of religion, the council can explain it.
Modes of Proceeding
- On the reference made by:
- Parliament (both houses)
- President
- Provincial Assemblies
- Governor
- Suo Motu
Scope
The Council of Islamic Ideology has been assigned a special advisory role. Its primary duty is to bring all existing laws into conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
Rules of Procedure
The proceedings of the Islamic Council shall be regulated by the rules of procedure to be made by the council with the approval of the President.
Conclusion
To conclude, the Islamic Ideology Council consists of a chairman and other members who are appointed by the President for a term of 3 years. The main function of the Islamic Ideology Council shall be to make recommendations to Parliament as to ways and means of enabling the Muslims of Pakistan to order their lives in accordance with the principles of Islam.
Council of Common Interest
In order to divide government organizations and departments among the provinces, the Council of Common Interest has been set up under the present constitution. The Council of Common Interest is a constitutional body that irons out differences, problems, and irritants between the provinces’ interests and also between the provinces and the federation. It is an institution that provides constitutional justice to the provinces and the federation.
Relevant Provisions
Articles 153 to 155.
Object of the Council of Common Interest
It was held that the object of the Council of Common Interest is to strengthen and integrate the federation and provinces, and iron out their differences.
Organization
The members of the council shall be the provincial chief ministers and an equal number of members from the federal government who are nominated by the Prime Minister from time to time.
Appointment of Members
The members of the Common Interest are appointed by the President of Pakistan.
Chairman of the Council of Common Interest
The Prime Minister is the member of the council and its chairman. Otherwise, the President shall appoint a federal minister.
Responsibility of the Council
The Council of Common Interest shall be answerable to the Parliament.
Function of the Council
- Policy Making: The Council of Common Interest formulates and regulates policies in relation to matters enumerated in Part II of the Federal Legislative List and with regard to electricity.
- Decisions of Complaints: The Council of Common Interest decides complaints regarding water when the provincial or federal government makes a law or passes an order regarding water or any natural resource affecting the interests of a province.
- End of Differences: It is an important duty of the Council of Common Interest to bring into conformity the policies of all provinces and to prevent any differences arising between the federal and provincial policies.
- Supervisory of the Institutions: The Council of Common Interest supervises the institutions such as railways, minerals, oil, electricity, natural gas, development of industries and institutions, establishments, bodies, and corporations administered or managed by the federal government.
Mode of Decision
The decisions of the council are expressed as the opinion of the majority.
Conclusion
To conclude, the Council of Common Interest is an important constitutional body. Its main object is to care for the common interests of all the provinces. The Council of Common Interest is a coordinating body between the provinces and the federation. It regulates policies in relation to matters in Part II of the Federal Legislative List.
Fundamental Rights
Fundamental rights are the basic rights of the citizens. In the Constitution of 1973, the list of fundamental rights has been given, and it has also been clarified that any law repugnant to these fundamental rights will be considered null and void. Every democratic state recognizes the fundamental rights of its citizens.
Relevant Provisions
Articles 8-28
Objective Resolution as Part of the Constitution
The principles and provisions set out in the Objectives Resolution are a substantive part of the present Constitution of the Islamic Republic of Pakistan. The scope of the constitutional law in Pakistan can only be determined by the Objective Resolution. The Objective Resolution is called the Magna Carta of the present constitution.
Fundamental Rights in the Constitution of 1973
Following are the important fundamental rights in accordance with the constitution:
- Security of person
- Prohibition of slavery of forced labor
- Protection against retrospective punishment
- Safeguards in case of arrest and detention
- Protection against double punishment and self-incrimination
- Freedom of movement
- Freedom of Association
- Freedom of Assembly
- Freedom of trade, business, and profession
- Freedom of Speech
- Freedom of Religion
- Safeguard against religious taxes
- Inviolability of dignity of Man
- Political freedom
- Safeguards as to the educational institution in respect of Religion
- Equality of citizen
- Freedom to acquire property
- Protection of property rights
- Right of access to public places
- Right to job
- Right of language and culture
Nature of Fundamental Rights
The fundamental rights are not absolute. Although the fundamental rights are given by the constitution, it does not mean uncontrolled liberty.
Can Fundamental Rights Be Suspended?
When the state itself is in danger, the fundamental rights can be suspended because fundamental rights have no real meaning if the state itself is in danger.
Conclusion
To conclude, fundamental rights are part and parcel of constitutional law. There can be no democratic constitution without it. In the Constitution of 1973, fundamental rights have been given. The fundamental rights safeguard the liberty and rights of the people. The fundamental rights cannot be suspended without applying constitutional methods.
Salient Features
The Constitution of 1973 of Pakistan was adopted on April 12, 1973. This constitution fully represents the ideology and democratic aspirations of the people of Pakistan, and the constitution is the supreme law of the land. It is considered an instrument by which a government can be run. It replaces the basic laws of the state. It determines the traits of the federal and provincial governments. The constitution is federal cum parliamentary in its characteristics.
Salient Features of the Constitution of 1973
Following are the salient features of the Constitution of 1973:
- Preamble: The preamble means an introductory part of a statute. It is not part of the constitution. It is stated in it that sovereignty over the entire universe belongs to Almighty Allah.
- Federal Form of Government: The Constitution of 1973 provides a federal form of government consisting of four provinces of the central government of Pakistan.
- Rigid Constitution: The Constitution of 1973 is rigid because the amendment procedure is not easy.
- Bi-Cameral Legislature: The federal legislature is bi-cameral, consisting of two houses: the Senate (the upper house) and the National Assembly (the lower house).
- Parliamentary Form of Government
- Fundamental Rights
- Direct Election
- Independence of Judiciary
- Rule of Law
- Official Language
- Principles of Policy
- End of Exploitation
- Single Citizenship
- System of Check and Balance
- Written Constitution
- Rights of Minorities
- Holding of Referendum: The President of Pakistan is authorized to order the holding of a referendum on any issue of national importance.
- Provincial Autonomy: The provinces of Pakistan enjoy full freedom under the 1973 Constitution. A province may initiate legislation on any common subject.
- State Religion
- Islamic Constitution
- High Treason: The abrogation of the constitution through unconstitutional means is high treason. It cannot be abrogated by the use of force.
- Equal Rights of Women
Conclusion
To conclude, the Constitution of the Islamic Republic of Pakistan 1973 is democratic, parliamentary with a bicameral legislature. It is the constitution of elected people. All major political parties of Pakistan unanimously accepted it.
Principles of Policy
Introduction
The principles of policies imply the future line of action of the country. The principles of policy themselves are not rules of law. It is usual in the constitution to instrument set out the aims and objectives of the state.
Relevant Provision
Articles 31 to 41 of the Constitution of Pakistan.
What are Principles of Policy?
According to Dr. K.C. Wheare, the principles of policy are the manifesto of national objectives, and they cannot be challenged in any court of law.
Importance of Principles of Policy
The principles of policy have great importance because they provide guidance to coming generations.
Nature
The principles of policies are always flexible, and they are not of a permanent nature.
Basis of Principles of Policies
The principles of policy are based partly on Islamic principles and partly on Western philosophy.
Principles of Policies in the Constitution of 1973
Following are the principles of policies in the Constitution of 1973:
- Islamic way of life
- Promotion of local Government institutions
- Participation of women in national affairs
- Protection of family, etc.
- Parochial and other similar prejudices to be discouraged: Statutes shall discourage parochial, racial, tribal, sectarian, and prejudices among the citizens.
- Protection of minorities
- Promotion of social justice and eradication of social evils
- Promotion of Backward Areas
- Free Education
- Professional Education
- Speedy Justice
- Better conditions of work
- Participation of people in National Activities: The state shall enable the people through education, training, agricultural and industrial development, to participate fully in all forms of national activities, including employment.
- End of social evils
- Prevention of Alcoholic Liquor
- Decentralization of Government Administration: The state shall decentralize the government administration to meet the convenience and requirements of the public.
- Promotion of social and economic well-being of the people: The state shall secure the well-being of the people by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few, and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants.
The state shall also provide the following:
- Participation of people in armed forces: The state shall enable people from all parts of Pakistan to participate in the armed forces of Pakistan.
- Foreign relation
- International peace
- Strengthening bonds with the Muslim world
Conclusion
To conclude, the principles of policies provide guidance to the state. The principles of policy include the Islamic way of life, promotion of local government, full participation of women in national life, protection of minorities, promotion of social and economic well-being of the people, and strengthening the bonds with the Muslim world.
Emergency Provisions
Introduction
The President may proclaim a state of emergency and make regulations accordingly. An emergency may arise all over the country or in a province or in a part of it. The President is authorized to declare a state of emergency for the whole of the country or any part of the country.
Relevant Article Provisions
Articles 232 to 237 of the Constitution of Pakistan.
Power to Proclaim the Emergency
A proclamation of emergency is issued by the President. The President is the sole judge of the situation, and it is he who has to decide whether or not the proclamation would issue.
Kinds of Emergency
- Emergency due to war, external or internal disturbance.
- Emergency due to the breakdown of constitutional machinery.
- Financial emergency.
- Emergency Due to War, External or Internal Disturbance: When there exists a grave emergency due to which the security of Pakistan or any part thereof is threatened by war or external aggression by internal disturbance beyond the power of the provincial government to control, the President can declare a state of emergency.
Suspension of Fundamental Rights: During the emergency, the fundamental rights can be suspended, and the President is empowered to declare that the right to move any court for the enforcement of such suspended rights shall remain suspended for the period during which the proclamation is enforced. - Emergency Due to the Breakdown of Constitutional Machinery: In case the President is satisfied with the report of the Governor concerned that a situation has arisen in which the government of the province cannot be carried on in accordance with the provisions of the constitution, he can proclaim an emergency.
- Effect: Federal executive or federal legislature shall take over functions of provincial executive and legislature.
- Duration of Emergency: The duration of the emergency is for a period of six months.
- Extension in Period: The President may extend the period of emergency for two months.
- Law to Cease After Six Months: Laws made by the federal executive and federal legislature shall cease after six months of the proclamation of emergency.
- Financial Emergency: In case the President is satisfied that a situation has arisen whereby the economic life, financial stability, or credit of Pakistan, or any part thereof, is threatened, he may, after consultation with the Governor of the provinces or, as the case may be, the governors of the provinces concerned, by proclamation, make a declaration to that effect. While such proclamation is in force, the executive authority of the federation shall extend to the giving of directions to any province to observe such principles of financial propriety as may be specified in the direction as to the giving of such other directions as the President deems necessary in the interest of the economic life, financial stability, or credit of Pakistan or any part thereof.
Revocation of Proclamation
The proclamation declared by the President may be varied or revoked by a subsequent proclamation.
Safeguard to Proclamation
The validity of any proclamation issued or order made under this part shall not be called in question in any court.
Parliament May Make Laws of Indemnity
Parliament may, however, pass a law indemnifying any person in the service of the federal or provincial government for any act done in connection with the maintenance or restoration of order in any part of Pakistan.
Conclusion
To conclude, the emergency provisions would come into operation in the case of war, internal or external disturbance, failure of constitutional machinery in a province, and financial and economic instability. The President of Pakistan is empowered to declare the state of emergency. He can also revoke or vary the emergency.