The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(a) Constitution of Pakistan (1973) Art. 2 & 3

—–Philosophy underlying Constitution.

The established principle of the constitution is Islamic. In order to appreciate the philosophy underlying the Constitution one must look back into the historic objective resolution which was adopted by the Constituent Assembly in 1949. The ideal embodied in the above resolution is faithfully reflected in the Constitution. The Preamble to the Constitution which summarizes the aims and objects of the Constitution provides: “Whereas sovereignty over the entire universe belongs to Almighty Allah alone, and authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed: Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah.” In Article 2 Islam is declared to be the State religion of Pakistan. In Principles of Policy it is provided that steps shall be taken to enable the Muslims of Pakistan to order their lives in accordance with the fundamental principles and basic concept of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur’an and Sunnah. The State has to endeavour as respects the Muslims to promote unity and observance of Islamic moral standards and to secure the proper organization of zakat, wakf and mosque. In Article 37 it is provided that the State shall prevent prostitution, gambling and taking of injurious drugs, printing, publication, circulation and display of obscene literature and advertisement, prevent the consumption of alcoholic liquor otherwise than for medicinal purposes. It is further provided that no law shall be enacted which is repugnant to Holy Qur’an and Sunnah and that existing laws shall be brought in conformity with the Injunctions of Islam. The constitution of Council of Islamic Ideology is provided under Article 228 and its function under Article 230 is to make recommendations to Parliament and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives according to the principles enunciated in the Holy Qur’an and Sunnah and to make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam. The Third Amendment Act has not affected whatsoever any of these provisions. The other fundamental principle on which the Constitution is based is “democracy”. As a form of Government the democracy which is envisaged is, of course, a representative democracy. The State, as is unmistakably stated in the Preamble, is required to exercise its power and authority through the chosen representatives of the people and has to observe the principles of democracy, freedom, equality, tolerance and social justice as true in each Province, which is to be elected on adult franchise and to which the real executive, namely, the Council of Ministers shall be responsible. The ideal of a democratic Constitution was tried to be achieved by the adoption of universal suffrage. Every citizen in Pakistan irrespective of his proprietary or educational claim is allowed to participate in the political system like any other person. Thus after every five years the members of the National Assembly and of each province are to be elected by votes of the entire adult population, according to the principle ‘one man, one vote’. The offering of equal opportunity to men and women, irrespective of their caste and creed in the matter of public employment also implements this democratic ideal. The minorities have been guaranteed constitutional safeguards. That the Constitution stands for the good of all the people is embodied in the concept of a Welfare State.’ The economic justice’ assured by the preamble can hardly be achieved if the democracy envisaged by the Constitution were confined to a ‘political democracy’. It is for this reason that it is provided in Article 3 of the Constitution: “The State shall ensure the elimination of all forms of exploitation and the gradual fulfilment of the Fundamental Principle, from each according to his ability, to each according to his work”. Democracy, in any sense, cannot be established unless certain minimal rights, which are essential for a free and civilised existence, are assured to every member of the community. The essential individual rights as ‘freedom of thought’ expression, belief, faith and worship are guaranteed against all the authorities of the State by Part II of the Constitution. These are the Fundamental Principles of the constitution and doubtless no change has been brought about in them by the Constitution (Third Amendment) Act. There are no fetters on the powers of the Parliament to amend the Constitution. The amendment, after it is made in conformity with the provisions contained in Part XI of the Constitution, will be the expression of the will of the vast majority of the people, and the remedy for correcting such a violation will lie not with the judiciary but with the people who are to express their will through their chosen representatives in the Parliament. [p. 1263] J et seq