Constitutional Amendments in Pakistan: Who Holds the Pen?

Constitutional amendments in Pakistan have nearly always been made by whoever held a majority in Parliament at the time. The provinces that joined together to form the country have no formal voice in changing the document, and the people at large are never asked to approve a change directly. Mian Ashiq Hussain sees this as one of the roots of the country's long constitutional instability.

In How Constitutions Flourish or Fail, he sets Pakistan's rules beside the constitutional amendment process in the United States, Australia, Canada, Switzerland and India. His conclusion is that a federation's founding bargain should change only with the consent of those who made it. This essay follows that argument, from the collapse of the 1956 and 1962 constitutions to the reforms he puts forward.

How is Pakistan's constitution amended?

Under the 1973 constitution, Parliament alone amends the constitution. The provinces have a say only when a bill would alter a province's boundaries, under Article 239(4). Article 239 also declares that no court may question an amendment and that Parliament's power to amend is unlimited. The author regards this concentration of power as a design flaw.

He traces the pattern back to the 1962 constitution, which gave the provinces no part in making or changing the constitution except where provincial boundaries were concerned. The framers of 1973 followed the same line. Their reasoning, as the author describes it, was that Pakistan was already a nation with provinces inside it, not a union of sovereign states, so its federating units did not need to be parties to the constitutional bargain.

The author rejects that premise. In his reading, the federation of 1947 was a voluntary union. Under the partition plan, the legislative assemblies of Bengal and Punjab voted to join Pakistan, Sindh's assembly chose to do the same, the North-West Frontier Province decided by referendum, and Balochistan and its states acceded. The Lahore Resolution of 1940 had itself spoken of autonomous and sovereign constituent units. If the provinces created the federation by consent, he argues, they should share in any decision to change its terms. National cohesion, in his phrase, comes from consent rather than coercion.

Which amendments have reshaped Pakistan's constitution?

The author singles out amendments that changed the character of the state: the Eighth and Seventeenth, which moved power towards a quasi-presidential system under military rulers; the Seventh of 1977 on the armed forces; the 18th of 2010, which rewrote about a third of the text; and the 26th of 2024 on the courts.

The 18th Amendment is his main case study. Its own statement of objects and reasons admitted that the 1973 constitution had never been implemented in letter and spirit, and blamed the Eighth and Seventeenth Amendments for disturbing the balance between the organs of the state. The author goes further: the original 1973 settlement, he notes, collapsed within five years of coming into force, so there was no lost equilibrium to restore.

He is more troubled by how the 18th Amendment was made. It was drafted by a parliamentary committee behind closed doors, without public debate and without the approval of the provincial assemblies. The National Assembly debated it for only two days, and just 18 of its 342 members spoke; the Senate took four days. Yet it changed the nature of the federation. It also rewrote Article 63A so that a party head, rather than the parliamentary party, could have defecting members disqualified, which in his view tightened dynastic control of politics. Its effect on the provinces is examined in Provincial Autonomy in Pakistan: Beyond Legislative Lists and The 18th Amendment in Pakistan: Devolution Compared.

Other changes follow the same piecemeal habit. The 25th Amendment of 2018 merged the tribal areas into Khyber Pakhtunkhwa, where the author would have preferred a new province, and the 26th reshaped the Judicial Commission, as discussed in How Judges Are Appointed: UK, India and Pakistan Compared.

Why did the 1956 and 1962 constitutions fail?

In the author's account, both failed because they broke the promise of the Pakistan Movement. The 1956 constitution was centralised and unicameral, built on the artificial parity of One Unit, and lasted less than three years. The 1962 constitution concentrated power in the President and survived less than seven before martial law swept it aside.

The story begins with a missed chance. In October 1953 Prime Minister Muhammad Ali Bogra put a formula before the Constituent Assembly that, in the author's view, could have grown into a genuine federal constitution: two houses of equal power, parity between East and West Pakistan with 175 seats each in the combined houses, and joint sittings where a decision needed backing from at least three in ten members of each wing. The Governor General, Ghulam Muhammad, dissolved the Assembly in October 1954, and the Federal Court upheld the dissolution in the Tamizuddin Khan case. West Pakistan's four provinces were then merged into One Unit.

The 1956 constitution that followed fell short of the colonial 1935 Act in several respects. The 1935 Act had a bicameral legislature whose houses held equal powers, even over money bills; the 1956 constitution had a single National Assembly. It also followed India in its amendment procedure. After the martial law of 1958 it was abrogated.

The 1962 constitution regressed further. The President could authorise public spending with his own signature rather than through appropriation acts passed by Parliament. On amendments, he could in practice veto a bill passed by three-quarters of the National Assembly by referring it to an electoral college of local councillors, the Basic Democrats, who were largely manageable. The author calls it more viceregal than the Viceroy's rule under the 1935 Act. The overcentralised financial scheme of that period provoked the reaction set out in The Six Points Formula and Provincial Autonomy, and the breakup of 1971 followed.

How does the constitutional amendment process work in other federations?

In classic federations, changing the constitution needs the consent of the states or the people as well as the national legislature. The United States requires two-thirds of Congress and ratification by three-quarters of the states. Australia adds a popular vote, Canada needs most provinces, and Switzerland puts changes to its people in referendums.

The author sets out the detail. Under Article V of the US Constitution, amendments can be proposed by two-thirds of both houses of Congress or by a convention called by two-thirds of the state legislatures, and they take effect only when three-quarters of the states ratify them. Australia's constitution can be altered by an absolute majority in each house followed by approval from a majority of voters in a majority of the states. Section 38 of Canada's Constitution Act, 1982, requires resolutions of both houses and of two-thirds or more of the provincial legislatures, which together must hold half or more of the population. In Switzerland, the people decide through referendums in the cantons.

India kept the general scheme of the 1935 Act. Its Parliament amends the constitution by a majority of its total membership and two-thirds of those present and voting, and the states ratify only amendments touching specified matters, such as the judiciary and the division of powers. Colonial constitutions sat at the far end of the scale: the 1935 Act could be amended only by the British Parliament, with the Indian legislatures limited to recommendations.

The author does not hold up rigidity as an ideal. More than 10,000 amendments have been proposed in the United States, but only 27 adopted. The first ten were part of the original bargain and one repealed another, so in practice, he notes, only fifteen changes have been made in about 230 years. He points to Thomas Jefferson's idea that every generation should repair its constitution, and to Switzerland, which broadly built periodic revision into its own.

What should a fair amendment process require?

The author wants consent rather than arithmetic. A constitution is a social contract, so changes to a federation's bargain should involve the provinces, and when Parliament and the provinces disagree the people should decide. Amendment must remain possible, because it is a safety valve, but it should not be a tool for a passing majority.

He holds two concerns together. Where democratic traditions are still young, he observes, legislatures have too often simply approved what the executive wanted. Yet he does not want the gap filled by judges. Changing a constitution through subjective judicial prescriptions, he argues, can be more dangerous still, as the aftermath of the Tamizuddin Khan case showed. His answer is to widen the role of the people. He would amend Article 239 so that a majority of Parliament could put a constitutional amendment to the people in a referendum.

The case for keeping amendment open is, for him, written in Pakistan's own history. Amending a constitution is a way to avoid revolutions fought on battlefields, and the violent separation of Bangladesh shows what happens when a country fails to build a widely accepted constitution on genuine federalism. He also prefers gradual change, with nationwide debate before any structural reform, and warns that amendments engineered to serve one person, party or institution set constitutionalism back. The judicial side of this argument is set out in The Basic Structure Doctrine: India, Germany and Pakistan.

Which amendments does the author propose?

He proposes a phased programme. The first phase repeals what he regards as colonial features, such as the dissolution of elected assemblies, rule by ordinance and caretaker governments. A second phase, after nationwide debate, covers structural change. On amendment itself, he would give the provinces a role and let the people settle deadlocks by referendum.

A few headline proposals give the flavour of the programme:

• Standing assemblies. Remove the power to dissolve elected houses and appoint caretaker governments, with shorter fixed terms instead. The reasoning is set out in Caretaker Governments: A Constitutional Black Hole.
• A real federal Senate. Elect the Senate directly and give it powers equal to the National Assembly, including over money bills.
• Taxes, not handouts. Replace the divisible pool with a redistribution of tax subjects between the federation and the provinces.
• Provinces in the amending process. Where the two houses of Parliament, or Parliament and a majority of provincial assemblies, disagree on an amendment, refer it to the people, with a set share of the vote required in each province. Make explicit that the bar on courts in Article 239(5) includes the Supreme Court and the High Courts, and omit clause (6).

Finally, he would review the whole text to remove duplicated, inconsistent and obsolete provisions, so that every word of the constitution can be put into practice, closing the distance between what it promises and what happens.

Frequently asked questions

Who can amend Pakistan's constitution?

Parliament. Under the 1973 constitution the provinces play no part except where an amendment would change a province's boundaries, under Article 239(4). The author argues that because the provinces formed the federation by consent in 1947, they should share in changing it, with deadlocks settled by referendum.

Can a court strike down a constitutional amendment in Pakistan?

Article 239(5) says no amendment may be questioned in any court on any ground, and Article 239(6) says Parliament's power to amend has no limit. The author holds that the word "court" covers the Supreme Court and the High Courts, and proposes making that explicit in the text.

Why did the 1956 constitution fail?

The author says it was a centralised, unicameral document built on the contrived parity of One Unit, and in some respects it regressed beyond the Government of India Act, 1935. It lasted less than three years before martial law abrogated it in 1958.

How is the US constitution amended?

Under Article V, two-thirds of both houses of Congress, or a convention called by two-thirds of the states, propose an amendment, and three-quarters of the states must ratify it. The author notes that only 27 of more than 10,000 proposals have succeeded, and calls the system exceptionally inflexible.

Read the full argument

The book sets out the complete reform programme and the reasoning behind each proposal. Read it in How Constitutions Flourish or Fail, and find more of the author's writing on his author page.

Related reading: Why Constitutions Fail, and What Makes Them Flourish, The Basic Structure Doctrine and The Way Forward: Renewing the Social Contract.