Constitutional Law -I

(Comparative)
What is Constitutional Law?

That branch of law which is concerned with the Constitution of a country. Related to the study of
Constitutional concepts, legal aspects of government, constitutional history, working of political
institutions and relationship between the citizen and the State. No waterproof definition of constitutional
law.

Marshall, Constitutional Theory :

‘Constitutional Law is the part of national law which governs the system of public administration and the
relationships between the individual and the state’

O Hood Phillips: Constitution of a state is the system of laws, customs and conventions which define the
composition and powers of organs of the state and regulate the relations of the various state organs of the
state to one another and to the private citizen.

In other words the rules which regulate the structure of the principal organs of government and
their relationship to each other, and determine their principal functions. These rules consist both of legal
rules in strict sense and of usages (commonly called Conventions: which without being enacted are
accepted as binding by all who are concerned with government.)

Constitutional Law deals with the legal foundations of the institutional hierarchy through which
the state is governed. It deals with the composition, powers, procedures and immunities and relationship
between the institutions of the state.

Constitutional Law and Administrative Law

For a long time Administrative law is considered as part of constitutional law. However with the
functions of the state increased Administrative law emerged as an independent branch of Public law.
There is no clear distinction between Constitutional and Administrative law. Maitland defines
administrative law as: “The law which determines the organization, powers and duties of administrative
authorities”

It deals with the exercise and control of governmental power. Administrative Law is more
concerned with the work of official agencies in providing services and in regulating the activities of
citizens.

The idea of constitutionalism

Constitutionalism as an evolving doctrine, is associated with the existence of written constitution

from which the state’s authority and legitimacy derives and which may limit the power of the state in
order to protect the rights of individuals and minorities
 Constitutionalism: “the political authority should be bound by institutions that restrict the
exercise of power”

In Western Societies, a written constitution, a democratic parliament shape a culture of respect

for the law by the state’s organs and the system of courts that may protect groups and individuals against
the abuse of power.

Classification of Constitutions

Constitution is a document which has a special legal status which sets out the framework and the
principal functions of the organs of government within the state and provides for principles and rules by
which those organs must operate.

In narrow sense it is not only the whole collection of rules, legal or non-legal, but rather a
selection of them which has usually been embodied in one document or in a few closely related
documents. A selection that governs the government of a country.

This distinction gave birth to a classification, which is Written and unwritten constitutions. Constitution
may also be classified according to the method by which they are amended. Namely, Flexible and rigid
constitutions. Another classification is made on the basis of the government system i.e. Federal or
Unitary.

State and the Citizen

State:

The state has been defined by different authorities from different point of view. To cut it short, it
can be described as an independent political society, occupying a definite territory and having for its
primary object, the defense of the territory against external aggression and the maintenance of order and
justice within the community itself.

A modern state is expected to deal with a vast mass social problems. To deal with these problems the
state must have agents or organs through which it can operate. The appointment or establishment of these
agents/organs, the nature of their functions and powers, their relationship inter se and between them and
the citizen form a large part of the Constitution of a State.

Apart from nature of State as a sovereign entity, the term is some times used to refer to a
federating unit or province in a federation as in the case of USA, India and Australia.

Pakistan and India:

The State of Pakistan is known as Islamic Republic of Pakistan(Art. 1). This is legal character of the State
of Pakistan established by the Constitution of Pakistan. Islam is the State religion of Pakistan.

According to the Constitution of Pakistan the State means the Federal Government, Parliament, a
Provincial Government, a Provincial Assembly and such local or other authorities in Pakistan as are by
law empowered to impose any tax or cess. (Art. 7)
It may be noted that in the definition of the state given in Article 7 of the Constitution, there is no mention
of judiciary and therefore it can be assumed that the judiciary is the custodian of the Fundamental Rights
charged with the duty as a watch-dog to see that none of the Fundamental Rights are abridged or taken
away.

The relationship between the state and its citizen is very important especially in the context of
Fundamental Rights.

The Indian constitution defines the term State as used in different Articles of Part III of the Constitution.
It says that unless the context otherwise requires the terms state includes the following:-

1. The Government & Parliament of India.

2. The Government and the Legislature of each state.

3. All local or other authorities within the territory of India.

4. All local and other authorities under the control of the Government of India.

The term State thus includes executive as well as the legislative organs of the Union and the States. It is,
therefore, the actions of these bodies that can be challenged before the courts as violating fundamental
rights.

Citizenship in Britain

In Britain, the nationality law, until 1948. was founded on the common law doctrine of allegiance.
Allegiance was defined by Blackstone as ‘ the tie, which binds the subject to the King, in return for that
protection which the King affords the subject. Allegiance is no longer a source of British nationality.

In 1870 Naturalization Act was passed by the British Parliament to enable aliens to acquire British
Nationality. Repealed by The British Nationality and Status of Aliens Act 1914. Further Acts passed and
almost entirely repealed by the British Nationality Act 1948.

Finally British Nationality Act 1981 came in

The Act recognizes three categories of Citizenship:

i)British

ii)British Dependent Territories

iii)British Overseas

British citizenship may be acquired by

i) Birth in the UK provided that one parent was at the time of birth a British citizen or was settled in
the UK.

ii) Subsequent citizenship other than by birth, that is, one of the parents later acquires citizenship or
he spends the first ten years of his life in the UK.
 iii) Descent; When birth occurs abroad but one parent is a British citizen other than by descent, it
allows acquisition by descent for one generation only.

Citizenship under Pakistan’s Law

Under the Pakistan Citizenship Act 1951 there are altogether 10 types of Pakistan citizenships:

1. By birth in the territories constituting Pakistan before 14 August 1947.

2. By birth in India having domicile in Pakistan.

3. By naturalization as British subject in Pakistan.

4. By migration to Pakistan from India before 13 April 1951.

5. By birth in Pakistan after 13 April 1951.

6. By descent if born after 13 April 1951 if father was a citizen of Pakistan at the time of his Birth.

7. By migration from India between 13th April 1951 and 1st January 1952.

8. By migration to India after 1st March 1947 & returning to Pakistan under a permit for re-
settlement.

9. By registration of a person whose father or paternal grandfather was born in India and was
resident outside Pakistan before 13 April 1951 & have obtained a certificate of domicile.

10. By naturalization under Naturalization Act, 1926 and registration as a citizen of Pakistan.

Citizenship of India

On partition of the country, some people were living in India, some people came from Pakistan, and some
others were living abroad. The problem relating to the citizenship of India, is therefore, tackled by three
fold provisions. A person at the commencement of the Constitution could be a citizen of India in the
following ways-

I. By domicile

II. By migration

III. By registration

Citizenship in U.S.A

Citizenship defined and conferred by section 1 of the fourteenth amendment to the constitution of USA.
Stated that “All persons born or naturalized in the United States and subject to jurisdiction thereof are
citizens of the United State wherein they reside”.

A person who has not been born in America may be naturalized citizen if he or she complies with the
conditions for naturalization set by Congress. If a person engages in fraud or misrepresentation in the
naturalization process, later discovery of the fraud will annul the grant of citizenship.
In Rogers v. Bellei 401 U.S. 815 (1971) the court upheld the requirement for children born abroad with
only one parent of US citizenship, that granted them citizenship on the condition that they later spend 5
continuous years in the United states between the ages of 14 and 28.

For many years, Congress set quotas for immigration based on nationality. The Congressional power to
regulate immigration and naturalization includes the power to regulate the behavior of aliens. Aliens may
be deported for a variety of activities deemed harmful.

Rights of the Citizen

Civil rights under British Constitution:

Under the Constitution of UK there are no basic, fundamental or inalienable rights. There is no
judicial review of Acts of Parliament. Yet no country in history has made a greater contribution than
Britain to the recognition of the rights of the individual and their protection by an independent judiciary
against government authorities.

India and Pakistan

There are variety of fundamental rights available under the Constitutions of India and Pakistan. Judiciary
of both states play the role of guardian to the rights of the citizen.

Human Rights in International Law

The term Human rights is not defined in any Act or International Law. This was introduced by the United
States Declaration of Independence, 1776 and the Declaration of the Rights of Man and Citizen by the
French Revolution.

Human rights provisions are made in the preamble and six Articles of the UN charter, the most important
being Articles 55 and 56. Article 55 calls for Universal respect for and observance of human rights and
fundamental freedoms for all. Whereas Article 56 makes it obligatory on all UN member nations to take
joint and separate action in cooperation with organization for the achievement of these purposes.

The United Nations lists 19 major conventions on human rights and over 20 declarations. The most
important of all is, The Universal Declaration of Human Rights adopted by the General Assembly in
1948. It is based in part on the United States Bill of Rights. It has in all 30 Articles, 22 of which cover the
range of civil and political rights and 5 cover the economic, social and cultural rights.

The human rights are (i) civil and political and (ii) economic and social rights. The human rights of the
first category are in fact limitations on government. To comply with these limitations. The only action
that is required on the part of the Government is its inaction.

Like other known and great civilization of the world, Islam which is the religion of over one billion
people all over the world has immensely contributed towards Fundamental or Human Rights. The Holy
Book of Muslims the Quran ensured Equality of Mankind, Freedom of Conscience, Freedom of trade, no
liability for the actions of others, Rule of law,
Privacy of Homes and many others. The Holy Prophet during his famous last Sermon at Arafat on 7
March, 623 laid out a complete charter of Fundamental Rights and provided a whole range of freedom
and protection.

“your lives and property are sacred and inviolable as the sacred inviolability of this very day”

Constitutional Conventions

Convention means a binding rule, a rule of behavior accepted as obligatory by those concerned in the
working or making of the Constitution. Conventions usually appear from two sources.

1. A course of conduct persisted in over a long period of time and gradually attain persuasive and
later on obligatory force. These kind of conventions can be called customs.

2. There may be an agreement among the people concerned to work in a particular way and to adopt
a particular rule of conduct. This rule is immediately binding and it is a convention. It springs
from agreement.

They are held to be morally and politically binding, but until they are enacted by the appropriate
machinery of state they do not in most countries alter the law or form part of the law. A significant
number of important constitutional principles are not found in either statute or common law and are
unwritten. They are called conventions.

• Austin – the ‘positive morality’ of the constitution.

• Mill – the ‘unwritten maxims’ of the constitution.

• Freeman – the ‘whole system of political morality’

• Jennings – a source that ‘fleshes out the dry bones of the law’.

The most useable definition of a constitutional convention is that provided by Makintosh – that
conventions are ‘generally accepted descriptive statements of constitutional and political practice’.

Conventions therefore are often evolutionary and develop through usage. There is no prescribed
time or duration required to establish the existence of a convention.

This, combined with their unwritten nature, means that it can be very difficult to identify whether a
particular convention exists.

Development of Constitutional Convention

United Kingdom & Other Countries

Constitutional Conventions can be described as non-legal rules stating the powers and obligations of the
branches of government, in particular the executive, and their relations with each other.

One prominent characteristic of the UK constitution is the role played by conventions. These rules
sometimes known as rules of constitutional morality. They create powers and impose obligations which
are not legally enforceable, and which are nevertheless regarded as binding.
A number of conventions impose obligations on the Monarch, such as to assent legislation, to choose
leader of the majority party in the Commons as PM and generally to act on his ministers advice.

According to Supreme Court of Canada, the purpose of conventions is to ensure that the legal framework
of the constitution will be operated in accordance with the prevailing constitutional values or principles.

In UK the constitutional laws say very little about PM and the Cabinet.

The conventions of collective and individual ministerial responsibility enforce the accountability of
government to the elected legislature, a central principle of a liberal democracy.

In other countries conventions provide an informal method of constitutional amendment. Where it is

difficult to amend the constitution conventions are of prime importance.

There is a lot of discussion that how conventions are created or arise, unlike rules of law they are not
instituted by the legislature or the courts. A practice of compliance with the rules is often important, as it
creates a series of precedents on which reliance can be placed.

If a convention has been observed and accepted as binding over a long period, it is hard to dispute its
existence.

The most important question for a student of law is the relationship of conventions to law. Dicey sharply
distinguished them. Constitutional conventions are not laws, because the courts cannot enforce them. This

view may be broadly correct. Conventions are enforceable politically, either by Parliament or by public
opinion. E.g. If the Monarch persistently failed to take her ministers advice and insisted on exercising her
legal powers, steps would be taken to curtail them by statute.

Though not directly enforceable, conventions may have some legal significance. The courts may use them
as foundation for a principle of common law. The courts are also competent to determine whether a
convention exists, at least when this jurisdiction is expressly conferred by statute.

The central part played by conventions in the constitutional arrangements of the UK indicates a
preference for self- regulation by governments and politicians over a system of legal checks and balances
enforceable by the courts, which is much more characteristics of modern codified liberal constitutions.

In the USA, it became a convention that a President should not seek a third term of office. It was based on
the example set by the first President George Washington who served for two terms but refused to run for
re-election as President for third term.

This became a convention for American President until 1940 when Franklin Roosevelt was elected for
third term and in 1944 for fourth term. After his death, a Constitutional amendment was moved in 1947
which was finally approved in 1951 as Twenty second Amendment to the U.S Constitution. Under this
amendment no person can be elected to the office of the President more than twice. Even a Vice President
who acted as President for more than two years can not be elected to the office of President more than
once.

This is the classic example of a constitutional convention becoming a constitutional amendment.

Conventions can become law also by judicial recognition. In the ordinary law of the land it is often within
the province of courts to recognize customs, under certain conditions, as part of the law. The same thing
is possible in constitutional law. When a convention is so recognized, it becomes a part of the law; it is no
longer a convention.

 British Coal Corporation V. The King (1935)

The judicial Committee of the Privy Council mentioned that the conventions regulating Dominion statutes
and the Crown invariably accept the Judicial Committee’s advice.

 Carltona Ltd. V. Commissioners of Works (1943)

Lord Green M.R referred to the convention of a minister's responsibility to Parliament for the acts of his
officials.

Constitutional Conventions in India

The fact that the Indian Constitution is one of the most elaborate in the world does not imply that it does
not have in addition tacit provisions. It is based on the recognized conventions of a parliamentary form of
government which it establishes both at the Centre and in the States.

For quite some time people, politicians, and others professed not to see anything but the written word, and
rejected the conventions altogether. But The Supreme Court of India has very clearly given legal
recognition to constitutional conventions concerning the parliamentary system of government. ( U.N. Rao
v. Indira Gandhi, AIR 1971 S.C. 1002)

In other words, the court has recognized that the provisions of the Constitution are based on certain
British conventions regarding the cabinet and that to ignore the latter would be to misinterpret the former.

Constitutional Conventions in Pakistan

Supreme Court of Pakistan has recognized the force of conventions for interpretation and understanding
of the provisions of the Constitution. Relying upon some longstanding conventions about the working of
the judiciary in Pakistan and India, it decided a case concerning appointment of judges of the superior
courts.

( Al-Jehad Trust V. Federation of Pakistan, PLD 1996 S.C. 324)

This judgment in Pakistan is a precedent for use of consistent past practice maturing into Constitutional
Convention for interpretation of the provisions of the Constitution.

Importance of Constitutional Convention is highlighted by the Supreme Court in another celebrated

judgment.

Asad Ali V. Federation of Pakistan, PLD 1998 S.C. 161 at page 314

“....Constitutional convention once established has the same binding effect as a Constitutional
provision….. In case of an unwritten constitution, conventions paly a more prominent and dominant role
in the interpretation of Constitutional provisions than in the case of written Constitution. Therefore while
explaining the Constitutional provision of a written Constitution on the basis of a convention, it must be
shown that either a convention has developed with the passage of time side by side with the enforcement
and interpretation of the Constitution or a convention already existing on the date of enforcement of a
written Constitution, has either received a statutory recognition in the Constitutional document or has
been established as a Constitutional convention on account of conscious and deliberate obedience of the
convention by those who are charged with the duty of interpreting or enforcing the Constitution.”

The Rule of Law

The phrase “rule of law” has been used since the time of Aristotle. Aristotle’s concept was “the rule of
law is to be preferred to that of any individual”. In other words it means a government of law and not of
men.

The supremacy of law or rule of law has always been a principle of the constitution. It means that
the exercise of powers of government should be conditioned by law and that the subject should not be
exposed to the arbitrary will of the ruler.

The doctrine of rule of law has its origin in England and it is one of the fundamental characteristics of the
British constitutional system. It lays down that the law is supreme and hence the government must act
according to law and within the limits of the law. In UK the supremacy of the law together with the
supremacy of Parliament was established by the Bill of Rights in 1688.

Dicey’s exposition of the Rule of Law

Since Blackstone the most influential writer on the constitution is A.V. Dicey. The constitutional law of
today differs in many respects from that of Dicey’s era, but the influence of Dicey remains a real force.

A.V. Dicey in his book The Law of the Constitution (1885) has given the following three
implications of the doctrine of rule of law.

 Absence of arbitrary power, that is, no man is punished except for a breach of law and no man
is above law.

 Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low,
official or non official) to the ordinary law of the land administered by the ordinary law courts.

 The primacy of the rights of individual, that is, the constitution is the result of the rights of the
individual as defined and enforced by courts of law, rather than constitution being the source of
the individual rights. The constitution is judge-made.

Today Dicey's theory of rule of law cannot be accepted in its totality. The modern concept of the rule of
law is fairly wide and therefore sets up an ideal for any government to achieve.

The rule of law implies that the functions of the government in a free society should be so
exercised as to create conditions in which the dignity of man as an individual is upheld.
 This dignity requires not only the recognition of certain civil or political rights but also creation
of certain political, social, economical, educational and cultural conditions which are essential to the full
development of his personality.

The relevance of the Rule of Law is demonstrated by application of the following principles in practice:

• The separation of powers between the legislature, the executive and the judiciary.

• The law is made by representatives of the people in an open and transparent way.

• The law and its administration is subject to open and free criticism by the people, who may
assemble without fear.

• The law is applied equally and fairly, so that no one is above the law.

• The law is capable of being known to everyone, so that everyone can comply.

• No one is subject to any action by any government agency other than in accordance with the law
and the model litigant rules, no one is subject to any torture.

• The judicial system is independent, impartial, open and transparent and provides a fair and
prompt trial.

• All people are presumed to be innocent until proven otherwise and are entitled to remain silent
and are not required to incriminate themselves.

• No one can be prosecuted, civilly or criminally, for any offence not known to the law when
committed.

• No one is subject adversely to a retrospective change of the law.

The Rule of Law in the U.S.A

American constitution is the embodiment of the founders belief in the rule of law. It is based on the idea
that government and society can only be regulated by law. The constitution rests on the belief that no one
in power should be above the law.

In addition to imposing constitutional limitations on government, the rule of law requires that citizens
who are wronged by others have opportunities to seek justice through the courts. The rule of law is a two-
way street: Defendants in civil and criminal cases are entitled to procedural fairness.

Rule of Law in India

The absence of arbitrary power is the first essential of the rule of law upon which the whole of Indian
constitutional system is based. In a system governed by rule of law, discretion, when conferred upon
executive authorities, must be confined within clearly defined limits.

Decisions should be made by application of known principles and rules. The rule of law means the
authority of law warranted by courts to test administrative actions.
 The rule of law in India is best described by Justice Ayyangar in Partap Singh v. State of Punjab
( AIR 1964 S.C. 72)

“The constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure
that each and every authority in the State, including the government, acts bonafide and within the limits of
its power

and we consider that when a court is satisfied that there is an abuse or misuse of power and its jurisdiction
is invoked, it is incumbent on the court to afford justice to the individual.

Rule of Law in Pakistan

The government in Pakistan is under a written constitution; therefore the written constitution is
the rule of law.

Article 4 of the Constitution of 1973, embodies the essence of the rule of law. It reads:

4. Right of individuals to be dealt with in accordance with law, etc.

(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of
every citizen, wherever he may be and of every other person for the time being within Pakistan.

(2) In particular-

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken
except in accordance with law;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law does not require him to do.

Article 4 is an original contribution to the constitutional law. It embodies the rule of law.

It also prevents the government from taking any action in this country for which there is no legal
sanction and it at the same time debars the legislature from creating an authority whose actions are not
subject to law.

The right to access to justice has been held as part of the rule of law, as derived from Article 4,
read with Article 9.

This includes the right to have a fair and proper trial and the right to have an impartial court or
tribunal, as also to have a reasonable opportunity to defend, and all this depends on the independence of
judiciary.

Parliamentary Form of Government

Parliamentary government is a democratic form of government in which the political party that wins the
most seats in the legislature or parliament during the federal election forms the government. It's called
'parliamentary government' because all of the power is vested in the parliament.
British Parliament is mother of all Parliaments and that unwritten constitution of Britain and its peculiar
constitutional evolution has given birth to the concept of parliamentary supremacy.

The government generally has three distinct powers: executive, legislative and judicial powers.
Parliamentary form of government may be described as form of government wherein the executive
branch of the government is elected/chosen from the legislative branch and the executive is responcible to
the Parliament.

Parliamentary Supremacy:

Dicey and other writers on the English Constitution have generally referred to the Parliament’s legislative
supremacy as Parliamentary sovereignty.

The word Parliament would be used in its usual legal sense, meaning the King in Parliament. When we
talk about Parliamentary Sovereignty we use it in its legal sense and not in its political sense. Therefore
the word sovereignty is interchangeable with the word supremacy.

According to Dicey the Sovereignty of Parliament has two implication: Positive and negative. In former
situation the Parliament has right to make and unmake any law and in later no person or body is
recognized by the law of England has having right to override or set aside the legislation of the
Parliament.

The House of Commons and House of Lords:

Like many other countries the United Kingdom has a bi-cameral legislature, that is, there are two
Houses of Parliament, the House of Commons and the House of Lords. Until about the end of the
eighteenth century the House of Lords, frequently referred to as the Upper Chamber to denote its
seniority.

Firstly by constitutional convention and now by law under Parliament Acts 1911-49, its legislative role
has been significantly curtailed. Resultantly the Lords must assent to a Bill certified as Money Bill by the
Speaker of the House of Commons, while, with one exception, they can only delay other Public Bills for
one year.

Parliamentary Democracy in Germany:

The form of government established by the Basic Law is that of parliamentary democracy. This means
that the Federal Government is dependent upon the Bundestag and that its formation and removal fall
within the latter's competence.

The Federal Government consists of the Federal Chancellor and the Federal Ministers. According to the
Basic law, the Bundestag elects the Federal Chancellor but not the Federal Government as a whole.

The Federal Ministers are appointed by the Federal President upon the proposal of the Federal
Chancellor.

In practice, the decision as to the persons who will become the Federal Chancellor or a Federal Minister is
largely predetermined by the outcome of the popular election of the Bundestag. The Bundestag also
participates in the election and removal of other federal officeholders, especially the Federal President
and the members of the Federal Constitutional Court.

Parliamentary Government in Japan:

The constitution of Japan provides for parliamentary government. It also recognizes judicial review as an
ingredient of checks and balances. Under the parliamentary system, the Cabinet may hold office as long
as it is given confidence by the Lower House (House of Representatives) of Parliament.

The Prime Minister has to be member of the Diet and a majority of the Ministers of State should also be
members of the Diet.

Parliamentary System in India:

In India, there is a parliamentary form of Government both at the Center and the states. The executive
power of the Union is vested in the President who exercises his powers and functions with the aid and
advice of the Council of Ministers headed by a Prime Minister.

The only exception is that under Article 103, the President has to act according to the opinion of the
Election Commission.

The Council of Ministers is responsible for every executive act and accountable for their actions to the
Parliament. Their responsibility is collective.

The Federal parliamentary character of the Indian Constitution has been recognized by the Supreme Court
of India as part of the basic structure of the Constitution in a case titled Kesavananda Bharati v. State of
Kerala (AIR 1973 S.C. 1461) Principles on which basic structure of the Constitution depends are:

I. The supremacy of the Constitution.

II. The republican and democratic form of government.

III. The secular character of the Constitution.

IV. The separation of powers between the legislature, the executive and the judiciary; and

V. The federal character of the Constitution.

Parliamentary System in Pakistan:

The Government of India Act, 1935, remained the Constitution of Pakistan till the framing and
enforcement of the first Constitution of Pakistan in 1956.

The Constitution of 1956 was founded on the concept of parliamentary democracy but the constitution did
not last long and was abrogated on 8th October 1958 on the imposition of Martial Law. The constitution of
1962 did not gave parliamentary form of government. It rather gave some kind of presidential system.

The present Constitution was enacted in 1973 and again introduced parliamentary form of government.
Some of its main features in its original form were:
 1. Prime Minister was to be elected by NA and designated as the Chief Executive.

2. Prime Minister can only be removed through vote of no-confidence.

3. Bi-cameral legislature was introduced i.e. Senate and National Assembly.

4. President to be elected for 5 years by Parliament in joint session.

5. President could not hold or veto assent for more than seven (now 10 days) days to any Bill passed
by the Parliament.

6. President can’t dissolve NA in his discretion and only if so advised by the Prime Minister. The
PM would continue to hold office until his successor entered upon office.

7. The Chiefs of the Armed Forces were to be appointed by the President on the advice of the PM.

8. Islamic Provisions included, Islam declared as state religion, establishment of Islamic Ideology
Council.

9. Special seats for women and minorities.

Federalism

Federalism is a type of government in which the power is divided between the national government and
other governmental units.

It contrasts with a unitary government, in which a central authority holds the power, and a confederation,
in which states, for example, are clearly dominant.

The Federal form of the Government may be defined as a form of government where powers and
authority of the state are distributed between a central government and the regional governments which
may be called the provinces or states or federating units.

The federal form is usually adopted for good administration as the regional issues are dealt with at the
state level.

The best federal system however proved to be that of the USA and for this the real credit goes to Federal
Supreme Court of USA.

Development of Federalism

The best known federal constitution is that of the United States of America.

After the War of Independence, the newly independent states adopted the Articles of Confederation, the
first American constitution, enforced from 1781 to 1788. It had some vacuums regarding central
government, judiciary, taxation etc.

Eventually a convention was gathered of delegates from all states to consider reform of these
unsatisfactory arrangements. Federal Constitution was drafted, adopted and ratified by nine states at that
time. The principal object of the new constitution was to strengthen power at center by establishment of a
federal Congress with vast legislative powers. It also provided for the election of a President with
significant executive powers, and the institution of the United States Supreme Court.

Federalism in Pakistan

The Objectives Resolution was passed on 23 March 1949 by the First Constituent Assembly. Later on,
this Resolution served as the preamble to the Constitutions of 1956, 1962 and 1973. It was made a
substantive part of the 1973 Constitution in 1985.

The preamble of the 1973 Constitution lays down that the territories of Pakistan shall form a federation,
wherein the units would be autonomous with such boundaries and limitation on their powers and
authority as may be prescribed.

Article 1 of the Pakistan Constitution lays down that Pakistan shall be a Federal Republic. A Republic is a
State with a form of government, not a monarchy, in which the Supreme Power is vested in the people
and is exercised through their elected representatives.

Article 70(4) divides the legislative subjects between center and units. The Parliament of Pakistan has
exclusive power to legislate on the matters enumerated in Federal Legislative list (Art. 142(a)).

All residuary subjects belong to the exclusive legislative competence of the Provinces. It is evident that in
case of any inconsistency between any Federal and Provincial law, the Federal law prevails.

There is marked dominance of Federation over the Provinces. Such dominance can also be proclaimed by
the Federal Government in times of emergency. (Articles 232,234 and 235).

Federalism in India

There are two views regarding the Constitution of India. One is that it is a quasi-federal Constitution and
has more unitary features than federal features. The other view is that it is a federal Constitution but
changes have been made in it to suit the requirements of the country.

However, if the essentials of a federal Constitution like the supremacy of the Constitution, division of
powers between the federal government and the units, a written constitution, rigidity in respect of
amendments in Constitution and authority of courts to judicially review and declare ultra vires and
invalid the laws passed by the federal or provincial legislature, are taken into consideration, there is no
doubt that the Indian Constitution is a federal Constitution.

Certain distinctive features of the Indian federal system are:

There is only one citizenship for the whole of India. It is the Indian citizenship. There is no State
citizenship. Every Indian has the same rights

of citizenship, no matter in what State he resides.

In India, no state has the power to amend its own Constitution although the central legislature has the
power to do so under certain circumstances.
The residuary powers in India are given to the Union Government and the Indian Parliament can make
laws with regard to them.

The Indian constitution has adopted a long list of concurrent subjects. There is also provisions for the
proclamation of emergency. Center can exercise powers within a State with the consent of that particular
State.

The Indian constitution can be both unitary as well as federal, according to requirement of time and
circumstances.

Separation of Powers

The term "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat, baron de
La Brède et de Montesquieu, an 18th century French social and political philosopher.

His publication, Spirit of the Laws, is considered one of the great works in the history of political theory
and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United
States.

Under his model, the political authority of the state is divided into legislative, executive and judicial
powers. He asserted that, to most effectively promote liberty, these three powers must be separate and
acting independently.

Separation of powers is a doctrine of constitutional law under which the three branches of government
(executive, legislative, and judicial) are kept separate. This is also known as the system of checks and
balances, because each branch is given certain powers so as to check and balance the other branches.

Constitutional Background & U.S Constitution

The Madisonian model of the separation of powers is set fourth in the Federalist papers 47, 48, and 51.
Madison was careful to point out that although liberty requires the separation of the three branches,
neither the theory nor the practice of the separation of powers requires an absolute separation among the
branches.

He cites theory and practice to support his conclusion that the separation of powers can only be
maintained if there is a blend of power among the branches, so that each has a constitutional check upon
the other, and each has the means to defend itself against encroachments by coordinate branches.

This was accomplished by giving each branch a separate constituency. Congress being responsible to the
people and the states respectively in the House and the Senate. The President be accountable to the
College. The Supreme court and the judiciary, although nominated by the President and with the advice
and consent of the Senate , were to be approved independent of the other branches.

Neither the theory of the constitutional separation of powers as stated by Madison in the Federalist papers
nor the provisions of the Constitution that implement the separation of powers create clear and
unequivocal divisions of power that are to prevail among the three branches.
Article I, II and III of the Constitution, called the distributing clauses, respectively delegate legislative,
executive, and judicial powers to Congress, the President and the Supreme Court.

Apparently, these Articles would seem to imply that no branch can exercise the general powers of
coordinate branches. However, the distributing clauses do not themselves segregate governmental powers
but

delegate to each branch some of the powers of coordinate branches in the form of checks and balances.

Thus while all legislative power is to reside in Congress, the President is explicitly given the veto power
over Congress, which is a clear grant of legislative authority. Similarly by the doctrine developed under
Marbury v. Madison, the Supreme Court can nullify executive and legislative acts.

There is not to be a complete separation of powers among the three branches. The principle of separation
of powers is violated only where all legislative, executive, and judicial powers reside in the same hands.

Each branch must maintain control over the exercise of its primary constitutional function and at the same
time can exercise powers that intrude upon the spheres of other branches if provided for by the
constitutional system of checks and balances or if necessary and incidental to the exercise of its primary
responsibility.

In view of the “checks and balances” connecting the three organs of the government, employed by the
U.S. Constitution, separation of powers is by no means complete.

The fathers of the U.S. Constitution intended that the balance of powers should be attained by checks and
balances between the three organs of the State.

The president may veto measures passed by Congress though his veto may be overridden by a two-thirds
vote of both Houses. He has the power to negotiate treaties but they must be ratified by a two-thirds vote
of the Senate.

The powers of judicial review of legislation were assumed by the Supreme Court and were not expressly
(implied by the Constitution).

American approach

Separation of powers, therefore, refers to the division of government responsibilities into distinct
branches to limit any one branch from exercising the core functions of another. The intent is to prevent
the concentration of power and provide for checks and balances.

The traditional characterizations of the powers of the branches of American government are:

• The legislative branch is responsible for enacting the laws of the state and appropriating the
money necessary to operate the government and provide for checks and balances.

• The executive branch is responsible for implementing and administering the public policy
enacted and funded by the legislative branch.
 • The judicial branch is responsible for interpreting the constitution and laws and applying their
interpretations to controversies brought before it.

While separation of powers is key to the workings of American government, no democratic system exists
with an absolute separation of powers or an absolute lack of separation of powers.

Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to
be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among
the branches of government.

Separation of powers means three different things:

1. Same persons should not form part of more than one of the three organs of government. E.g. Ministers
should not sit in Parliament.

2. One organ of government should not interfere with the exercise of functions of another. E.g. judiciary
should be independent of the executive.

3. One organ of government should not exercise the functions of another. E.g. Ministers should not have
legislative powers.

Separation of powers in Pakistan

The Constitution-making process reflects the lasting spell of the Government of India Act, 1935.

The Constitution of Pakistan, though it declared itself a federal state with a parliamentary form of the
government at the center, was a result of limited choices. The distribution of state power was not meant to
secure the freedom of the citizens.

The Constitution (Article 90) provided that the executive authority of the state shall vest in the President
and shall be exercised by him, directly or indirectly but in accordance with the constitution.

If the language of this particular article is compared with section 7 of Government of India Act 1935 and
Article 53 of Indian Constitution, all these provisions are almost identical.

Similarly the legislative power of the Parliament (Articles 141-143), extends to the Federal list. These
provisions are also identical with the provisions in the Act of 1935 (section 99) and Indian Constitution’s
Article 245.

In addition to these implicit powers, the Constitution conferred powers of judicial review in the
constitution under Articles 199 and 184 upon judiciary.

In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts
only as administrator of the public will.

Historically , the judiciary had accepted the supremacy of the Parliament and therefore, there was no
question to have a separation of power in American sense. In Pakistan, the parliamentary form of
government was adopted under the Constitution of 1973.
Similarly in a parliamentary form of government, owing to the party system, there is no scope for real
separation of powers between executive and legislative branch.

The real struggle therefore is between the executive on the one hand and the judiciary on the other hand
arising out of a struggle for the custodianship of the Constitution.

In the Constitution of Pakistan 1973, thus , has neither separation of powers nor checks and balances. In
fact, the Constitution hardly provides any balance of powers between the three organs of the state.

Separation of powers in India

India like Pakistan has a federal parliamentary system. Therefore the theory of separation of powers does
not apply to India as well too, particularly in relation to the executive and the legislative.

However, separation of powers does exist between executive and legislative on the one hand and
the judiciary on the other hand.

The amending power of the Parliament did not extend to destroy the basic structure of the Constitution,
which is comprised of:

• The separation of power.

• The supremacy of the Constitution.

• The republican form of government.

• The secular character of the Constitution.

• The rule of law.

(Indira Gandhi v. Raj Narain AIR 1975 S.C 2299)

In practice, it is only the functional distribution of powers which is operative and the theory of separation
of powers is not fully applicable because all the constitutions including the U.S. Constitution establish
three branches of government but suggest little as to how and by whom the boundaries among their
powers are to be drawn.