Class Notes by Mahvish Rani for “Introduction

1 to English Legal System” for LL.B.(Hons) Shariah & Law F-17 (FC-IIUI)

Independence and Birth of Pakistani Legal System

India was given its first detailed constitution in the form of the “Government
of India Act 1935”.The Act created a federal structure and provided for a
clear system of legislation and courts. It was a complete written constitution.

It is however known that Muslims in 1940 through Pakistan’s resolution not

only demanded new independent state based on their geographical presence
but also made it clear that no constitutional plan would be acceptable to
Muslims of India if the demand for separate states for Muslims (sovereign
and autonomous) would not be accepted.

Pakistan was created in 1947 through the Independence Act in 1947. 1The
Act created sovereign legislature for the two countries (Pakistan and
India).These legislatures/Constituent Assemblies were given full power
to create constitutions for their countries. The Act also provided that until
new constitutions were created, the two countries (Pakistan and India) would
be continued to be governed by the ‘Government of India Act 1935’.2

The modified form of Government of India Act became the interim

constitution of Pakistan. It provided for a Federal Court. The law declared
by the Federal court was binding on all courts of Pakistan.3

The Governor General of Pakistan issued Order called ‘The Pakistan

(Provisional Constitution) Order 1947 established the Federation of
Pakistan.4
1
The Act was passed by the British Parliament.
2
Thus before Pakistan could have its own constitution it started its governance with ‘the Government of
India Act 1935’.Its Constituent Assembly started its work on constitution making. It was also acting as a
legislature. ’In fact the modified form of ‘Government of India Act 1935’ became the provisional
constitution or interim constitution of Pakistan.
3
The Highest Court of Appeal was the Privy Council of England.
4
Under the original ‘Government of India Act 1935’ the Governor-General was given very wide powers
and he was the representative of the British Crown however when the Act was adapted in Pakistan with
effect from 14th August 1947 the governmental activity was brought under the control of the cabinet and
the Governor General (who was the executive head of Pakistan) were to exercise his powers on the advice
of the Cabinet. The Governor-General was empowered to make Ordinances in case of emergency.
Class Notes by Mahvish Rani for “Introduction
2 to English Legal System” for LL.B.(Hons) Shariah & Law F-17 (FC-IIUI)

As far as laws are concerned, according to section 18(3) of the Independence

Act 1947, the law of British India would continue to be as the law of
Pakistan unless the relevant legislature of Pakistan would make changes
regarding it or make new laws.5

As far as the constitution is concerned, the first constituent assembly of

Pakistan had been given two separate functions: to prepare a constitution and
to act as the Federal Legislative Assembly of Pakistan until such time that a
constitution came into effect.

The constituent Assembly could amend the Indian Independence Act or the
Government of India Act 1935.No Act of the British Parliament could be
extended to Pakistan without legislation by the Constituent Assembly of
Pakistan. The constituent Assembly set up several Committees and sub-
committees to carry out its task of framing a constitution.

Some Steps towards framing the Constitution by Constituent Assembly

The first step towards framing the constitution was taken by the Constituent
Assembly in March 1949.It passed the “the Aims and Objectives of the
Constitution” commonly known as “the Objectives Resolution”.6

It is to be noted that the Federation of Pakistan included (1) the four provinces of East Bengal, West
Punjab, Sindh and the North West Frontier Province (2) Baluchistan (3) any other areas that might, with
the consent of the federation be included therein (4) the capital of the federation Karachi; and (5) such
Indian states that might accede to the federation.
5
Section 18(3): “Save as otherwise expressly provided in this Act, the law of British India and of the
several parts thereof existing immediately before the appointed day shall, as far as applicable and with
the necessary adaptations, continue as the law of each of the new Dominions and the several parts
thereof until other provision is made by laws of the Legislature of the Dominion in question or by any
other Legislature or any other authority having power in that behalf”. In fact this section was adopted in
the following constitutions of Pakistan: The Constitution of Pakistan 1956,The Constitution of Pakistan
1962 and the Interim Constitution of Pakistan 1972.As far as the Constitution of 1973 is
concerned ,section 268(1) of it reads as follows: “Except otherwise provided by this article, all existing
laws shall ,subject to the constitution ,continue in force, so far as applicable and with the necessary
adaptations ,until altered ,repealed or amended by the appropriate legislature.” A repeal is the
removal or reversal of a law. There are two basic types of repeal, a repeal with a re-
enactment (or replacement) of the repealed law, or a repeal without any replacement.
"Amend" means to change a legal document so as to make it more suitable or
acceptable. An amendment is a change to the law generally made by another law. An
amendment can change or repeal an existing provision, or add a new provision. Alter is
an act done to a legal document whereby its meaning or language or effect is changed.
6
See a more detailed account of the Objectives Resolution in the Chapter ‘The Objectives Resolution
1949’ in ‘The Constitutional and Political History of Pakistan’ by Hamid Khan.
Class Notes by Mahvish Rani for “Introduction
3 to English Legal System” for LL.B.(Hons) Shariah & Law F-17 (FC-IIUI)

The first draft of the constitution prepared by “the Basic Principles

Committee” was presented to the country in 1950.7The committee proposed
that “the Objectives Resolution” be made part of the constitution.

The first draft was sent back to the Constituent Assembly. The second draft
was presented in 1952.However after that the problem of Ahmadi sect in
Pakistan got momentum. By 1954 Pakistan entered into a constitutional
crisis. 8

In 1954 the Governor-General dissolved the constituent Assembly as he did

not agree to the proposed constitution.9

It was the second constituent Assembly that created the first constitution of
Pakistan in 1956.

Supreme Court was created under the Constitution of 1956. 10 Adequate

provisions were made to ensure the Independence of Judiciary.

The constitution dealt with the Islamic character of the state in its
provisions.

The constitution lasted for almost two years. Constitution was abrogated and
Martial Law was imposed.11 .(Continuance in Force) Order was promulgated
to bring a new legal order. It was challenged but supreme court validated the
Order as well as Martial Law. Ayub Khan introduced Basic Democracies

7
It got very unfavorable reaction from East Pakistan.
8
For a more detailed account of these events see the Chapter ‘Debates within the constituent Assemblies’
in ‘The Constitutional and Political History of Pakistan’ by Hamid Khan.
9
This dissolution was challenged in the court by the President of the Assemly Maulvi Tamizuddin Khan.
The case is known as Maulvu Tamizuddin case. The final decision validated the dissolution of the Assembly
For a more detailed account of the famous constitutional cases of that time see the Chapter ‘An era of
Legal Battles’ in The Constitutional and Political History of Pakistan’ by Hamid Khan It .It is to be noted
that the legal gap during this time period was tried to be filled by promulgating the Emergencies Powers
Ordinance IX of 1955.However the Federal Court declared this Ordinace as invalid stating that such
legislation could only be made by the constituent Assembly.The Governor-General formed a
‘Constitutional Convention’The Federal Court asked the Governor General to come up with detailed terms
of reference to the Federal Court to avoid multiplicity of litigation on different constitutional issues.The
court dealt with matters ranging from the disslotion of the Assembly to the formation of the
Constitutional Convention. The Federal Courts’s decision in the Reference by the Governor General
cleared the way for summoning the Second constituent Assembly.
10
It succeeded the Federal Court. This Federal Court was created in 1948 which succeeded the Federal
Court of India that was created in 1937.
11
Ayub Khan became the Chief Martial Law Administrator. He later on handed over power to Ayub Khan.
Class Notes by Mahvish Rani for “Introduction
4 to English Legal System” for LL.B.(Hons) Shariah & Law F-17 (FC-IIUI)

Order 1959 for establishing local self-government.In 1960 Ayub made a

Constitution Commission. A Commission did a lot work for enabing the
country to have a constitution. Its report of the Commission was presented to
Ayub in 1961. In 1962 Pakistan got its second constitution. In 1969 Ayub
Khan shifted power to Yahya Khan as a result of protests. Yahya Khan
abrogated the constitution and became the chief Martial Law
Administrator.12Yahya promised elections and showed his willingness to let
the elected members make the next constitution.13

Yayha Khan presided over a disastrous military campaign in East Pakistan.

Pakistan lost war to India in 1971 and East Pakistan became a separate
sovereign country named as Bangladesh.

Yahya handed over power to Bhutto in December 1971. 14In 1972 The
Interim Constitution came into force. It was adopted by the National
Assembly that was elected in December 1971.

In 1973 Pakistan adopted its current constitution after having consensus of

all political parties. It was amended partially many times. The legal system
of Pakistan cannot be understood if the stages with which the constitution of
1973 has gone through are not understood.15

The Demand for the Islamization of laws

Al tough laws of British India got adapted in Pakistan however new laws
were also being made or enacted from time to time.

12
He issued several Martial Law regulations listing offences, punishment and trial procedures.
13
All the laws that were before the abrogation of the constitution could continue and courts could were
allowed to have their powers exercised however they could not question any martial law regulation or
order or judgment of a military court. On April 4 a Provisional Constitutional Order was promulgated. In
March 1970 Legal Framework Order was given which laid down the basic principles for future
constitution of Pakistan. From January 1 1970 the political activity was free.On 7 December 1970 were
the first ever general elections that were held on one man one basis. The results of the elections and later
political constitution related developments in which an agreeable constitutional formula was not achieved
along with certain other factors, resulted in a separation of East and West Pakistan as two separate
countries.
14
The decision of ASMA Jilani case came after yahya Khan handed over his power.This case is very
important in the judicial history of Pkistan which contrary to earlier cases did not justify Martial Law.
15
A course would be taught on the Constitution of 1973 to students of LLB(Hons) Shariah & Law in one of
the upcoming semesters.
Class Notes by Mahvish Rani for “Introduction
5 to English Legal System” for LL.B.(Hons) Shariah & Law F-17 (FC-IIUI)

As far as the general principles of the English Common law (such as

principles of justice, equity and good conscience) is concerned it got
continued to be applied especially in areas where the law was unclear. In
fact the policy for Common law was that judges would us their discretion in
dealing with unclear situations and might apply the principles of equity and
justice.

In “Islamic Republic of Pakistan” it was Islamic law that was to be made,

implemented and developed. There had been a demand for it throughout the
decades.The demand to some extent was fulfilled by inserting some Islamic
provisions in the constitutions.

The constitution of Pakistan of 1973 gave the following provision:

“no law shall be enacted which is repugnant to the injunctions of Islam as

laid down in the Holy Quran and the Sunnah”.(Article 227).

The Council of Islamic Ideology was also given task to assist Parliament so
that laws may be brought in conformity to the injunctions of Islam and laws
that are inconsistent with Islamic law principles may indicated.

There is an interesting thing about Islamic law to be noted here that it has a
methodology of accepting or rejecting existing laws,legal principles that
may be designed even by other legal systems. Thus there may be laws that
are not inconsistent with the general principles of Islamic law and may be
accepted.

It is therefore expected by the system of Pakistan and by judges of Pakistan

to work in such a way that can test the validity of existing laws and legal
principles under the light of Islamic law.

They were also expected to apply Islamic principles when interpreting the
statutes however it is still the case that judges apply principles of common
aw in interpretation of statutes.

All of such efforts could have been started right from the first constitution
that could give a mechanism for such Islamization of laws.It was however
Class Notes by Mahvish Rani for “Introduction
6 to English Legal System” for LL.B.(Hons) Shariah & Law F-17 (FC-IIUI)

the era of Zia al Haq when the constitution got a permanent stamp of
Islamization on the constitution.Article 2(A) was inserted in the constitution.

Article 2 (A) of 1973 Constitution is as follows:

“The principles and provisions set out in the Objectives Resolution

reproduced in the Annex are hereby made substantive part of the
Constitution and shall have effect accordingly”.

In fact the Objective Resolution (adopted in 1949 by the first constituent

Assembly) remained preamble of all the constitution of Pakistan but it
became a substantive provision of the constitution in Zia’s era.

The Objective Resolution suggests that Pakistan is created so that Muslims

live their lives according to Islam.16

In fact Muslims in the subcontinent had a slogan at the peak of their struggle
for Pakaistan : Pakistan ka matlab kia –La ilaha illallah (What’s the meaning
of Pakitan-There is not God but Allah).17

In fact it was proposed by the ‘Basic Principles Committee ‘ of the first

Constituent Assembly proposed in 1950 to make the Objective Resolution
the part of the Constitution but it could only happen in Zia’s regime as
mentioned earlier.18

It does not mean that there was not much demand of Islamic law and
Islamization before zia in Pakistan, in fact it was the era of Bhutto when
such demands got impetus.19 It would not be wrong to state that overall
Pakistani throughout the history had been demanding implementation of
Islamic laws.

16
For an account of how the Objectives Resolution was adopted in 1949 ,what it contain, what
amendments the minorities suggested regarding it ,see the Chapter ‘The Objectives Resolution, 1949’ in
the Constitutional and Political History of Pakistan by Hamid Khan.
17
It is a misconception that the slogan later was coined by Jamate-Islami decades after the independence.
18
At this stage we would not go into the politics centered arguments about Zia’s motives to take such
actions as irrespective of this debate one can not deny the factual position of the wishes of the Muslims of
this region to have Islam as a system in Pakistan.
19
The prohibition of alcohol in that era is an example. It was the ear of Bhutto when the issue of Khatme
Nabuwat got government’s and parliament attention. It was declared that those who do not consider
Prophet Muhammad (sallalaho alaihe wassalm) the last nabi and rasool would not come under the
definition of Muslim.See 260 (3) of the Constitution of 1973.
Class Notes by Mahvish Rani for “Introduction
7 to English Legal System” for LL.B.(Hons) Shariah & Law F-17 (FC-IIUI)

In Zia’s era Fedearl Shariah Court was made. Hudud and Zakah laws were
enacted.20 Many other actions were taken for the Islamization of
laws.Faculty of Shariah & Law was established within International Islamic
University.The process of Islamization is continued to this date.

However it is still the case that many judges appear to have superficial
knowledge of Islamic law when they refer to Islamic law in their judgments.

20
With regard to certain provisions of the Hudud laws the work of Imran Ahsan Khan
Nyazee,Dr.Muhammad Muni,Dr Samia Maqbool of International Islamic University Islamabad is
commendable.Nyazee unlike many others has identified the areas of reform in this regard while
defending certain positions of Islaimc law.Dr.Samia’s PhD thesis about theories of adjudication and her
work discusses how judges can use Islamic Jurisprudence while interpreting the law.