Constitutional and Political History of Pakistan

Hamid Khan is Senior Advocate of the Supreme Court of Pakistan and a founding partner of a leading Pakistani law firm, Cornelius, Lane & Mufti. He is former President of the Supreme Court Bar Association of Pakistan (2001-3), and the Lahore High Court Bar Association (1992-3). He regularly lectures on various legal subjects at the University of the Punjab, Civil Services Academy, Administrative Staff College, and the National Institute of Public Administration. He is an Ebert and DAAD Fellow, and a member of The Hague Academy of International Law. His other publications include The Islamic Law of Inheritance (OUP 2007), Principles of Administrative Law (OUP 2012), and A History of the Judiciary in Pakistan (OUP 2016).

Table of Cases
Preface to the Third Edition
Part One: Pre-Partition Constitutional and Political History
1 The State of Undivided India
The Mughals: Founders of Modern Adminis-tration
British Expansionism in India
Legislative Control by the British Parliament
The Government of India Act, 1858
The Indian Councils Act, 1861
Constitutional Developments between 1861 and 1909
The Minto-Morley Reforms, 1909-1919
The Indian Councils Act, 1909
The Government of India Act, 1919
Diarchy in the Provinces
Central and Provincial Legislatures and their Powers
Political Developments, 1919-1935
- Satyagraha
- The Khilafat Movement
- Non-cooperation Movement
- The Simon Commission
- The Nehru Report
- Jinnah's Fourteen Points
- Civil Disobedience Movement and the Round Table Conferences
- Communal Award and the Poona Pact
2 A Colonial Constitution
The Government of India Act, 1935
The Federal Executive
The Federal Legislature
The Federal Court
Provincial Governments
Provincial Legislatures
- Limitation on the Legislative Power of the Provincial Legislatures
- Special Provisions Relating to Financial Bills
Formation of Ministries in the Provinces
Role of the Governors
3 Countdown to Partition
The Pakistan (Lahore) Resolution, 1940
Second World War and the Termination of Congress Ministries
The Cripps' Mission, 1942
The 'Quit India' Movement
The Simla Conference-Wavell's Plan (1945)
Elections to Provincial and Central Legislatures, 1945-46
The Cabinet Mission Plan, 1946
Direct Action Plan and the Interim Government
Constituent Assembly and Attlee's Statement, February 1947
The Mountbatten Plan, June 1947
The Independence Act, 1947
The Princely States of India
Part Two: Constitutional and Political Developments: August 1947 to October 1958
4 Birth of a Nation and Death of Jinnah
The Interim Constitution: Adaptation of the Government of India Act, 1935
Basic Principles and Other Important Committees
Partition of Punjab: The Carnage and Refugee Problem
The Kashmir Issue
Jinnah's Death, September 1948
Jinnah as Governor-General: A Review
5 The Objectives Resolution, 1949
Proposed Amendments
The Debate on Religious Minorities
Resolution Adopted
6 Controversies within the Constituent Assembly
Basic Principles Committee and its Interim Report
Report of the Committee on Fundamental Rights and Matters Relating to Minorities
The Assassination of Liaquat Ali Khan, October 1951
Report of the Basic Principles Committee, 1952
Anti-Ahmediya Movement, Martial Law, and Dismissal of Nazimuddin's Government
The Munir Report, 1954
The Muhammad Ali Formula
- Compromise Formula on Federal Legislature
- Controversy over Provincial Autonomy and Strong Centre
- The Issue of National Language
- Other Provisions
Elections in East Pakistan
Amending Acts of 1954
Dissolution of the Constituent Assembly and Proclamation of a State of Emergency
7 An Era of Legal Battles
Maulvi Tamizuddin Khan's Case
- The Federal Court Judgment
- Dissent of Justice A.R. Cornelius
- Concluding Remarks
The Usif Patel Case
Governor-General's Reference to the Federal Court
Doctrine of Law of Necessity
The Impact of Constitutional Cases
The Second Constituent Assembly
West Pakistan Established as One Unit
Framing the Constitution
Political Reaction to the Draft Constitution
Final Approval by the Constituent Assembly
8 The Constitution of 1956
Fundamental Rights
Directive Principles of State Policy
Parliamentary Form of Government
The President and the Cabinet
Functions and Powers of the President
The Federal Government
The Federal Legislature (The Parliament)
Provincial Governments and Legislatures
Distribution of Powers between the Centre and the Provinces
The Judiciary
Islamic Provisions
Emergency Provisions
9 The First Martial Law
End of Chaudhri Mohammad Ali's Ministry
Suhrawardy's Ministry, September 1956 to October 1957
Chundrigar's Ministry, October-December 1957
Noon's Ministry, December 1957-October 1958
Political Commotion
Delay in General Elections and Declaration of Martial Law
Part 3: The Ayub Regime: October 1958 to March 1969
10 Ayub Khan's Basic Democracies
Ouster of President Iskandar Mirza
The Dosso Case
Mehdi Ali Khan's Case
Action against Government Servants
Action against Politicians
Land Reforms, 1959
Basic Democracies Order, 1959
Referendum/Presidential Elections
11 The Constitution Commission and its Report
Failure of the Parliamentary System
Presidential Form of Government Recommended
Legislatures: Unicameral or Bicameral?
The President and his Powers
Federal Form of Government Recommended
Recommendations Relating to the Electorates
Recommendations Regarding Revival of Political Parties
Recommendations Relating to Islamic Provisions
Recommendations Regarding the Judiciary
Fundamental Rights and Directive Principles of Policy
Note of Dissent
Conclusion
12 The Constitution of 1962
Presidential Form of Government
Powers of the President
- Selection of Candidates for Election to the Office of President
- Impeachment and Removal of the President
- Independence of the Executive Authority
- The President and his Cabinet
- Presidential Powers and the Legislature
- Legislative Powers of the President
- Presidential Control over the Budget
- Emergency Powers of the President
A Centralized Federal System
A Unicameral Central Legislature
Governors and Provincial Legislatures
Relations between the Centre and the Provinces
Distribution of Financial Resources between the Centre and the Provinces
An Independent Judiciary
Elections through the Electoral College
Islamic Character of the Constitution
13 Ayub's Civilian Face
Political Situation in 1962
Political Situation at the Time of the 1962 Constitution
Political Parties Act, 1962
- Revival of the Political Parties and Political Activity
Franchise Commission and its Report
The First Amendment
- Fundamental Rights in the Constitution made Justiciable
The Second Amendment
Supreme Court's Judgment in Maudoodi's Case: Jamaat-i-Islami Banned
14 Presidential Elections, 1965
The Opposition Announces its Candidate
Elections to the Electoral College
Opposition's Crisis of Confidence
- Gerrymandering of Constituencies
- Faulty Voters' Lists
- Bogus Voting
- Unfair Rules for Presidential Poll and Pakistan Election Commission
- Misuse of Official Machinery and Public Money
Election Campaign and Results
Factors Responsible for Ayub's Victory
Election Results Disputed
Aftermath of the Presidential Election
15 War with India and Rifts Within
Third, Fourth, and Fifth Amendments to the Constitution
Indo-Pakistan War, 1965
The Tashkent Declaration and Student Protests
Reaction of Politicians to the Tashkent Declaration
The Sixth and Seventh Amendments of 1966
Political Developments in East Pakistan: February 1966-November 1968
Mujib's Six Points
- The Agartala Conspiracy Case
Political Developments in West Pakistan: February 1966-November 1968
The Power of Twenty-two Families
The Dominance of Bureaucrats
Leading Constitutional Cases
16 The Fall of Ayub
Student Protests and Political Agitation in West Pakistan
Repression and Breakdown
The Opposition Organizes Itself
Ayub Decides to Retire
Parleys with the Opposition Fail
The 'Benevolent Dictator' in Retrospect
Part 4: The Yahya Regime: March 1969 to December 1971
17 Yahya's Martial Law
Provisional Constitution Order
Action Against Senior Civil Servants
Curtailment of Jurisdiction of Courts
The Mir Hassan Case
Constitutional Changes: Dissolution of One Unit
Legal Framework Order, 1970
Political Alliances and Free Electioneering
General Elections, December 1970, and their Results
18 Constitutional Breakdown
Postponement of the National Assembly Session
The Awami League in Revolt
Hijacking of an Indian Aircraft
Negotiations for Political Settlement
Political Impasse between the Centre and the Eastern Wing
Yahya-Bhutto Military Axis
Six Points and West Pakistan
Who Lost East Pakistan?
19 The Birth of Bangladesh
Military Action in East Pakistan
Reaction in West Pakistan
Attempts at Reconciliation
The Draft Constitution
International Responses
Indo-Pak War and the Fall of Dhaka
Role of the United Nations
Role of Yahya in Secession of East Pakistan
The Breakup of Pakistan: A Constitutional Analysis
- Introduction
- The Language Issue
- The Objectives Resolution
- Constitution Making and Divisive Issues
- The Principle of Parity
- The Constitution of 1956
- Abrogation of Constitution and Declaration of Martial Law
- The Constitution of 1962
- Ayub and the Elective Bodies (Disqualification) Order, 1959
The Presidential Election of 1965
- The War of 1965 and Its Consequences
- Fall of Ayub and Yahya's Martial Law
- Constitutional Changes Introduced by Yahya
- Legal Framework Order and the General Elections of 1970
- Aftermath of General Elections and Constitutional Deadlock
- Conclusion
20 Civilian Martial Law
Bangladesh Government Established in Dhaka
Bhutto Takes Over
Bhutto: His Background to Political Ascendancy
Civilian Martial Law and Bhutto's Reforms
- Release of Mujib
- Nationalization of Basic Industries: Economic Reforms Order, 1972
- Land Reforms
- Colleges and Schools Taken Over
- Screening of Government Servants
Political Manoeuvres till the Interim Constitution
The Asma Jilani Case
21 The Interim Constitution of 1972
Salient Features
- Presidential Form of Government
- The Vice-President
- Unicameral Legislature
- The Federal Government
- The Provincial Governments
- The Provincial Legislatures
- Administrative Relations between the Federation and the Provinces
- The Courts
- Validation of Laws
The Simla Agreement
Detention of Journalists and Political Opponents
The Ziaur Rahman Case
Dismissal of the Provincial Government in Balochistan and Resignation of the Provincial Government in NWFP
The Language Crisis in Sindh
Bhutto's Repression of Opposition Politicians
Constitutional Amendments
Constitution-making: The Initial Difficulties
Constitutional Accord
Permanent Constitution Adopted
Presidential Reference on Bangladesh
22 The Constitution of 1973
Fundamental Rights
Directive Principles of State Policy
Parliamentary Form of Government
The President and the Cabinet
The Federal Government
The Federal Legislature (The Parliament)
Provincial Governments and Legislatures
- Distribution of Power and Relations between the Centre and the Provinces
The Judiciary
Islamic Provisions
Emergency Provisions
Other Features
23 Bhutto's Democracy
Elections to the Senate and the Offices of the President and the Prime Minister
Constitution Enforced on 14 August 1973
Administrative Reforms
First Amendment and the Recognition of Bangladesh
Second Amendment: Ahmedis Declared Non-Muslims
An Aborted Coup Attempt and F.B. Ali's Case
Third Amendment: Victimization of Political Opponents
Fourth Amendment: Jurisdiction of Courts Curtailed
National Awami Party (NAP) Banned and the Supreme Court Judgment
Fifth Amendment: Chastising the Judiciary
- The State of the Judiciary in 1976
- Debate on the Fifth Amendment Bill
- Constitution (Fifth Amendment) Act, 1976
- New Law for Contempt of Court
Nationalization of Banks and Small Industries
The Sixth Amendment to the Constitution
Further Land Reforms
Important Constitutional Cases
Preventive Detentions and the Courts
Internal Politics of the PPP and Factionalism
Preparations for General Elections
24 General Elections, March 1977
Allegations of Rigging the Polls
Political Agitation and Cases Pertaining to Election Rigging
Limited Martial Law and the Lahore High Court Verdict
Seventh Amendment to the Constitution
Parleys for Political Settlement
Political Impasse and Imposition of Martial Law
The Fall of Bhutto: An Assessment
Part 6: The Zia Regime: July 1977 to August 1988
25 Zia's 'Operation Fairplay'
Constitution Suspended and Laws (Continuance in Force) Order, 1977, Promulgated
Zia's Differences with Bhutto
Election Campaign and Postponement of Elections
Withdrawal of the Fifth and Sixth Amendments
The Nusrat Bhutto Case
26 Bhutto's Trial and Execution
The Background
Detention and Cancellation of Bail for Bhutto
The Trial of Bhutto
Was the Trial Fair?
The Judgment of the High Court
Appeal before the Supreme Court
Retirement of Members of the Bench
The Judgment in Appeal
Review Application and its Dismissal
Controversy over the Supreme Court Verdict
The Execution of Bhutto
Zulfikar Ali Bhutto: A Political Legacy
Fazal Elahi Retires and Zia assumes Presidency
Partnership between the Military and the Judiciary
Aftermath of the Nusrat Bhutto Case
All Political Activity Banned
Zia Backs Out of Holding Elections
Constitutional Amendments
- Superior Courts Empowered to Declare any Law Un-Islamic
- Hudood Laws Introduced
27 Hounding the Judiciary
Introduction of Separate Electorates
Military Courts Established under the Constitution
Challenge to the Amendment
Exorcizing the Judiciary
The Hamid Baloch Case
The Federal Shariat Court
Creation of Permanent Benches of the High Courts
Movement for the Restoration of Democracy (MRD)
28 The Provisional Constitution Order, 1981
Public Humiliation of the Judiciary
The Provisional Constitution Order (PCO) Upheld
PCO-II-Reinstatement Orders of Civil Servants Nullified
The Federal Council (Majlis-e-Shoora)
The Office of the Ombudsman (Wafaqi Mohtasib)
Zia's Constitutional Plan
The Referendum, December 1984
General Elections, February 1985
Constitutional Amendments during Zia's Rule
Further Steps towards Islamization
- Profit and Loss Sharing Accounts in the Banks
- Ehtram-e-Ramzan Ordinance, 1981
- Curb on the Religious Activities of Ahmedis
- Islamization of the Law of Evidence
- Introduction of Islamic Banking
29 The Eighth Amendment
Revival of the Constitution Order (RCO): Main Features
Civilian Government formed under Martial Law
Eighth Amendment: Compromising the Constitution
Modifications made in the RCO
Defection Clause in the Political Parties Act
Longest Ever Martial Law Lifted
30 Partial Democracy and Death of Zia
Benazir Bhutto Returns in April 1986
The Afghan War Settlement
Benazir Bhutto's Case-Requirement for Registration Waived
Mustafa Khar's Case and Validation Clause under the Eighth Amendment
Conflict between Civilian and Military Authorities
Dissolution of Assemblies and the Dismissal of Junejo's Government
Performance of Junejo's Government Reviewed
Caretaker Government without a Prime Minister
The Shariah Ordinance, 1988
Zia's Death, August 1988, and a Review of his Regime
Dissolution of the National Assembly Challenged
- Order of Dissolution of National Assembly
- Challenge before the Lahore High Court
- Appeal before the Supreme Court
Law Denying Election Symbols to Political Parties Struck Down
Party-based General Elections, 1988
Part 7: Post-Zia Civilian Governments: August 1988 to October 1999
31 Benazir's First Term: A Divided House
Benazir Nominated Prime Minister
Ishaq Elected President
Provincial Governments Formed
Dissolution of the Balochistan Provincial Assembly
The Haji Saifullah Case
Motion of 'No-Confidence' against Benazir
Conflict over Division of Powers between the President and the Prime Minister
Conflict over the Appointment of Judges
Dissolution of Assemblies
Benazir's First Term Reviewed
The Caretaker Government of Jatoi
Order of Dissolution of National Assembly Challenged and Court Verdicts
- Challenge before the Sindh High Court
- Appeal before the Supreme Court
(a) The Opinion of the Majority
(b) The Dissenting View
Dissolution of Provincial Assemblies Challenged and Court Verdicts
- Verdict of the Supreme Court
- Dissolution of the Provincial Assembly of Sindh: Challenge before the Sindh High Court
General Elections, October 1990
32 The First Nawaz Government: Constitutional Duel over the Punjab
Provincial Governments Formed
Legislations Concerning Economic Reforms
Denationalization and Privatization
Presidential References
The Twelfth Amendment
Legislation Regarding the Separation of Judiciary from the Executive
Differences between the President and the Prime Minister
Dissolution of the National Assembly
Order of Dissolution
Order of Dissolution Challenged
The Caretaker Government
Constitutional Duel over the Punjab
- Attempt to Impose Federal Government Rule in the Punjab
Dissolution of the NWFP Provincial Assembly, 1993
Exit of the President and the Prime Minister
Performance of the Nawaz Government, 1990-93
The Caretaker Government
General Elections, October 1993
33 Benazir's Second Term: The Judicial Crisis
Sabir Shah Case
Public Hangings Banned
Implementation of Decision to Separate the Judiciary from the Executive
The Local Bodies Case
Wattoo's Government Sacked: Lahore High Court Verdict
Confrontation with the Judiciary
- Justice Sajjad Appointed Chief Justice
- PPP's Rough Handling of Superior Courts
- The Judges' Judgment
Leghari-Benazir Rift: President's Reference No. 2
Dismissal of Benazir's Government
Benazir's Second Term Reviewed
34 Under the Shadow of the Eighth Amendment
Law of Accountability
Election Laws Amended
Leghari-Nawaz Secret Pact: Justice Fakhruddin Resigns
Dissolution of the National Assembly Upheld
Eighth Amendment Held Valid: Mahmood Achakzai's Case
General Elections, February 1997
35 Nawaz's Second Term: Storming the Supreme Court
End to the Eighth Amendment
End to Defections
New Accountability Law
Confrontation with the Judiciary
Fall of Justice Sajjad Ali Shah
Storming the Supreme Court
A Divided Judiciary
Asad Ali Case
Role of Leghari as President
Tarar Elected President
Contempt of Court Cases
- Supreme Court Upholds the Thirteenth Amendment
- Supreme Court Verdict on the Fourteenth Amendment
- Supreme Court Strikes Down Anti-Terrorist Law
- Lahore High Court Upholds Ehtesab Act
Nuclear Tests: Declaration of Emergency
Supreme Court Judgment on Proclamation of Emergency
Courts' Decision on Freezing of Foreign Currency Accounts
Supreme Court Declares Military Courts Unconstitutional
Constitution (Fifteenth Amendment) Bill
Supreme Court Storming Case Decided
Sixteenth Amendment
Kargil Crisis: Confrontation with Military
The Military Takes Over
Performance of the Second Nawaz Government
Part 8: The Musharraf Regime: October 1999 Onwards to August 2008
36 Musharraf and His Legal Framework Order
Military Government Confronts the Judiciary
Trial of Nawaz for Hijacking
Supreme Court Upholds Military Takeover
Review Petition
Removal of President Tarar
Musharraf and 9/11
Irshad Appointed Chief Election Commissioner
Referendum, 30 April 2002
Local Government Reforms
Legal Framework Order, 2002
37 Musharraf's Democracy: Seventeenth Amendment
General Elections, 2002
Jamali Elected Prime Minister
The Seventeenth Amendment: Musharraf and the Parliament
Vote of Confidence for Musharraf
Accountability under the Military Government
National Security Council Act, 2004
Prime Ministerial Parade
Musharraf and the Issue of the Uniform
Seventeenth Amendment upheld by the Supreme Court
Hisba Bill and Reference to the Supreme Court
Local Government Elections 2005
The Steel Mills Case
Other Scandals
38 Musharraf and the Judiciary
Dividing the Judiciary
General Elections and the Lahore High Court
Judges Rewarded: Extension in Retirement Age
Confrontation with the Bar
Struggle of the Bar against LFO
Nazim Siddiqui becomes the Chief Justice
Chief Justice Iftikhar Muhammad Chaudhry
Suspension of the Chief Justice-Events of 9 March: The Army House Events
President's Orders
- Restraint of the Chief Justice
- Appointment of Acting Chief Justice
Convening of the Supreme Judicial Council
President's Reference
Treatment of Chief Justice after Leaving Army House
Order of 15 March
Supreme Judicial Council Proceedings
Proceedings before the Supreme Court
Chief Justice Restored
Reaction to these Events by the Public and the Legal Profession
Protests
Media
Judicial Orders and Proceedings Flouted
Dual Office Case
Wajihuddin's Case
Musharraf's Election
Musharraf's Coup against Judiciary: Emergency and PCO
Judges Oathed Out
Restraining Order of 3 November 2007
Crackdown on Lawyers and the Lawyers' Movement
Musharraf's Emergency Rule
Musharraf Quits as COAS and Emergency Lifted
Law of Legal Practitioners Amended
PCO Supreme Court Upholds PCO
General Elections: Whether or not to Boycott
Assassination of Benazir
39 Fall of Musharraf and Election of Zardari
Elections of 18 February 2008
Formation of Federal Government
Provincial Governments Formed
Restoration of Judiciary and Murree Declaration
The Long March
Proposed Constitutional Amendments
Resignation of Musharraf
Analysis of the Musharraf Regime
PPP Reneges again on Restoration of Judiciary
Election of Zardari as President
Part 9: The Zardari Government: September 2008 to September 2013
40 Judiciary Restored: Historic Judgments after Restoration (2008-2009)
Governor Rule in Punjab
Second Long March and Restoration
Sindh High Court Bar Association Case
Analysis of the Judgment in the Case of Sindh High Court Bar Association
(PLD 2009 S.C. 789)
Review Petitions Dismissed
Dissenting opinion of Justice Sardar Muhammad Raza
National Reconciliation Ordinance (NRO) declared Unconstitutional
Political impact of NRO decision
Conviction of Nawaz set aside
Nawaz declared qualified to contest election
Terrorism: The Swat Operation
41 The Eighteenth, Nineteenth, and Twentieth Amendments to the Constitution (2010-2011)
Judicial Crises
The Eighteenth Amendment
Eighteenth Amendment Analysed
Eighteenth Amendment Challenged
Nineteenth Amendment
Twentieth Amendment
Kayani's term of office extended
Important Constitutional Cases decided during This Period
Other Important Cases decided by the Supreme Court
Political Developments during this period
42 Prime Minister Removed: Judicial Activism at its Height: Peoples Party defeated in General Elections (2012-2013)
Prime Minister sentenced for Contempt of Court
Contempt Proceedings against Gilani
Prime Minister Gilani removed
Reaction to the Removal of Prime Minister
New Prime Minister elected
New Contempt of Court law declared Unconstitutional
Memogate Scandal and Court Proceedings
Corruption in Rental Power Plants
Mehran Bank Scandal
Presidential Reference regarding Appointment of Judges of Islamabad High Court
Corruption in Pakistan Steel Mills
Dual Nationality Cases
Judicial Appointments
Reforming Elections
Cases of Misgovernance
Preparation of New Electoral Rolls Ordered
Ephedrine Quota Scandal
Contempt Notice to Altaf Hussain (Crl.O.P.No.106/2012)
Appointment of Chairman NAB declared Void
Arsalan Case
Political Developments (2012-13)
- Terrorism and Extremism
National Commission for Human Rights
General Elections
Analysis of General Elections, 2013
Mamnoon Hussain elected as President of Pakistan
Presidency of Asif Ali Zardari
Part 10: Constitutional and Political Issues in Pakistan
43 Constitutional and Political Issues in Pakistan
Weak Political Parties
Debate Over Form of Government
Role of Legislatures: Sovereign or Subordinate?
Role of the Judiciary: Independent or Subordinate?
Role of the Military: Master or Servant of the State?
Role of the Bureaucracy: Master or Servant of the People?
The Issue of Provincial Autonomy
Religion and the State
Joint or Separate Electorates?
Partisan Conduct of Elections
Minorities: Secure or Scared?
Fundamental Rights and Civil Liberties
Corruption and Coercion in the Corridors of Power
Terrorism: A Grave Threat to the Integrity of Pakistan
Pakistan at Crossroads
Bibliography
Index