LAW --- THE CONSTITUTION OF PAKISTAN, 1973

MODULE 1

ETHOS AND STRUCTURE OF THE CONSTITUTION. PRINCIPLES OF CONSTITUTIONAL INTERPRETATION.

Sessions I, II & III:

(a) Frozen in Time or Evolving Words? Emergence and Growth of Constitutions.

(b) Political and Ideological Origins as well as Basic Structure of the Pakistani Constitution.

                         

Constitutional Provisions: Preamble, Articles 1, 2, 2A, 3, 4, 5, 6, 7, 227-230, 251. Annex.

Readings:       Tribe. pp. 1-29. Brohi. pp. 3-85. Rahim. pp. 7-23, 41-94.

                       

Sessions IV & V:  

Principles of Interpretation of the Constitution.

Readings:       Tribe pp. 30-94.

Constitutional Provisions: Articles 260-264.

Case Law:

1.      Haji Nizam Khan v Additional District Judge, PLD 1976 Lahore 930.

2.      Benazir Bhutto v Federation of Pakistan, PLD 1988 SC 416.

3.      Federation of Pakistan v Haji Muhammad Saifullah Khan, PLD 1989 SC 166.

4.      Sharaf Faridi v The Federation of Islamic Republic of Pakistan, PLD 1989 Karachi 404.

5.      Shirin Munir v Government of Punjab, PLD 1990 SC 295, pp. 295.

6.      Khawaja Ahmad Tariq Rahim v Federation of Pakistan, PLD 1992 SC 646.

7.      Muhammad Nawaz Sharif v Federation of Pakistan, PLD 1993 SC 473.

8.      Pir Sabir Shah v Shad Muhammad Khan, PLD 1995 SC 66.

9.      Al-Jehad Trust v Federation of Pakistan, PLD 1996 SC 324.

10.  Shahid Nabi Malik v Chief Election Commissioner, PLD 1997 SC 32.

11.  Mahmood Khan Achakzai v Federation of Pakistan, PLD 1997 SC 426.

12.  Gadoon Textile Mills v WAPDA, 1997 SCMR 641.

13.  Sardar Farooq Ahmed Khan Leghari v Federation of Pakistan, PLD 1999 SC 57.

14.  Zafar Ali Shah v General Pervaiz Musharraf, PLD 2000 SC 869.

15.  Muhammad Akram v Selection Committee, 2003 CLC 18.

Session VI:

Limits on Judicial Power:

(i)                     Doctrine of Separation of Powers;

(ii)                    Doctrine of Political Question; and

(iii)                   Doctrine of Basic Structure.

1.   Federation of Pakistan v United Sugar Mills, PLD 1977 SC 397.

2. Fauji Foundation v Shamimur Rehman, PLD 1983 SC 457.

3. Khawaja Muhammad Sharif v Federation of Pakistan, PLD 1988 Lahore 725.

4. Federation of Pakistan v Haji Muhammad Saifullah Khan, PLD 1989 SC 166.

5. Mahmood Khan Achakzai v Federation of Pakistan, PLD 1997 SC 426.

6. Al-Jehad Trust v Federation of Pakistan, PLD 1997 SC 84.

7. Mohtarma Benazir Bhutto v President of Pakistan, PLD 1998 SC 388.

8. Wukula Mahaz v Federation of Pakistan, PLD 1998 SC 1263.

9. Zafar Ali Shah v General Pervaiz Musharraf, PLD 2000 SC 869.

10. Pakistan Lawyers Forum v Federation of Pakistan, PLD 2005 SC 719.

LAW --- THE CONSTITUTION OF PAKISTAN, 1973

MODULE II

FUNDAMENTAL RIGHTS AND PRINCIPLES OF STATE POLICY

Session VII & VIII:

Life, Liberty and Dignity.

Constitutional Provisions: Articles 8, 9, 10, 11, 12, 13, 14, and 15.

Case Law:

1. Alamdar Hussain Shah v Abdul Bashir Qureshi, PLD 1978 SC 121.

2. Abdur Rehman v State, 1978 SCMR 292.

3. Habibullah v The State, 1989 MLD 2649.

4. Syed Ghayyur Hussain Shah v Gharib Alam, PLD 1990 Lahore 432.

5. Manzoor Ahmad v The State, 1990 MLD 1488.

6. Akbar Ali v. Secretary, Ministry of Defence, 1991 SCMR 2114.

7. Employees of the Pakistan Law Commission v Ministry of Works, 1994 SCMR 1548.

8. West Pakistan Salt Miners Labour Union (CBC) Khewra, Jehlum v Director, Industries and Mineral Development, 1994 SCMR 2061.

9. Shehla Zia v WAPDA, PLD 1994 SC 693.

10. Suo Motu Constitutional Petition, 1994 SCMR 1028.

11. Nasrullah Khan Henjra v Government of Pakistan, PLD 1994 SC 23.

12. Mst. Zaib-un-Nisa v The Government of the Punjab, 1995 CLC 1281.

13. Metropolitan Corporation Lahore v Imtiaz Hussain Kazmi, PLD 1996 Lahore 499.

14. Amanullah Khan v. Chairman Medical Research Council, 1996 SCMR 1211.

15. Mohtarma Benazir Bhutto v President of Pakistan, PLD 1998 SC 388.

16. Nasreen Riaz v. LDA, 1998 CLC 1099.

17. Shehri and others v. Province of Sindh, 2001 YLR 1139.

18. Ahmad Abdullah v Government of the Punjab, PLD 2003 Lahore 752.

19. Shahida Faisal v Federation of Pakistan, PLD 2000 Lahore 508.

20. Abdul Malik v State, PLD 2006 SC 365.

Session IX: Civil and Political Rights Constitutional Provisions: Articles 16, 17, and 19.

Case Law:

1. Benazir Bhutto v Federation of Pakistan, PLD 1988 SC 416.

2. Mrs. Benazir Bhutto v Federation of Pakistan, PLD 1989 SC 66.

3. Mian Muhammad Nawaz Sharif v President of Pakistan, PLD 1993 SC 473.

4. Union of Civil Aviation Employees v Civil Aviation Authority, PLD 1993 Lahore 306.

5. Masroor Ahsan v Ardeshir Cowasjee, PLD 1998 SC 823.

6. Sheikh Muhammad Rashid v Majid Nizami, PLD 2002 SC 514.

7. Engineer Jameel Ahmed Malik v Pakistan Ordinance Factories, 2004 SCMR 164.

Session X. Equal Protection

Constitutional Provisions: Articles 25, 26, and 27.

Case Law:

           

1. Gul Khan v Government of Baluchistan, PLD 1989 Quetta 8.

2. Shrin Munir v Government of Punjab, PLD 1990 SC 295.

3. Farhat Jaleel v Province of Sindh, PLD 1990 Karachi 342.

4. I. A. Sharwani v Government of Pakistan, 1991 SCMR 1041.

5. Pak. Petroleum Workers Union v Ministry of Interior, 1991 CLC 13.

6. Government of Baluchistan v Azizullah Memon, PLD 1993 SC 341.

7. Naseem Firdous v Punjab Small Industries Corporations, PLD 1995 Lahore 584.

8. Zohra v Government of Sindh, PLD 1996 Karachi 1.

9. Mushtaq Ahmad Mohal v Honourable Lahore High Court, 1997 SCMR 1043.

10. Messrs Gadoon Textile Mills v WAPDA, 1997 SCMR 641.

11. Adreshir Cowasjee v  KBCA, 1999 SCMR 2883.

12. Shahida Faisal v Federation of Pakistan, PLD 2000 Lahore 508.

13. Shaukat Ali Wahla v Chief Administrator of Auqaf, 2005 MLD 1053.

14. Moulvi Iqbal Haider v. CDA, PLD 2006 SC 394.

15. Shehzad Riaz v Federation of Pakistan, 2006 YLR 229 Karachi.

LAW --- THE CONSTITUTION OF PAKISTAN, 1973

LAW --- THE CONSTITUTION OF PAKISTAN, 1973

Autumn Quarter, 2006

Course Description: Constitutions have come to be regarded as the collective consensus and ultimate reference point of a nation’s aspirations and ideals. They are looked upon as the primary custodians of individual and collective rights and the supreme arbiters in disputes between the organs of a State. They are the mirror to the ideological hopes of the past, the litmus test for the actuality of the present and the looking glass for the future. The alchemy of their creation and interpretation is suffused with politics, and the politics of a nation are greatly influenced by its constitutional disputes. This course attempts to provide a comprehensive introductory coverage of the Constitution of Pakistan, 1973 through a detailed analysis of the landmark cases that elaborate, discuss and clarify the ethos, ambit and significance of the most important constitutional provisions. We will look at length at not just the jurisprudence of the judgments but also the unique social and political environment, which contextualizes them and furthermore the policy imperatives, conflicts and compromises that formulated them and contributed to their evolution.

Goals and Structure of the Course: This course will introduce students to the philosophy, structure and substance of the Pakistani Constitution. It has been divided into the following modules.

Module 1 looks at the constitutional developments that led to the adoption of the 1973 Constitution, benchmarking it briefly against the evolution and growth of the US Constitution. At the same time it will also introduce students to the principles of constitutional interpretation, which are very important to understand and analyze constitutional texts and jurisprudence. Furthermore, we will also analyze three important constitutional doctrines, namely: (i) doctrine of separation of powers; (ii) doctrine of political question; and (c) doctrine of basic structure,  and their applicability in the Pakistani constitutional context.

Module 2 looks at the conflict between the power of the state (or another way of looking at it as by calling it the role and responsibility of the state) and individual and group rights and how the Constitution attempts to balance state policy imperatives with individual aspirations and goals. This will allow us to look in detail at the nature, ambit and variety of Fundamental Rights and the Principles of State Policy enshrined in the Constitution. This module also looks at the mechanisms provided by the Constitution to invoke and protect Fundamental Rights.

Module 3 looks in detail at the structure of the State as provided by the Constitution and the extent as well as the limits of the powers of the executive, the legislature and the judiciary. It also explores the nature and structure of the notion of Federation as it exists in Pakistan as well as the mechanism provided by the Constitution to govern economic affairs of the State between the Federation and its Units.

At the end of this course, we will be in a position to ask important questions as to what direction our constitutional framework should take in view of what we have covered in class. Apart from the students of Law and Policy at LUMS, this course will be of special interest and value to those students who may want to pursue further studies in the areas of history, political science, political economy and development economics. It is equally meaningful for anyone endeavouring to develop a better understanding of the constitutional framework of the country we live in, as it has a direct bearing on every citizen’s life.

Required texts: (The relevant parts from all these texts will be made available to students in the form of a course package before the start of the course).

1. Brohi, A.K. Fundamental Law of Pakistan. Karachi: Din Muhammadi Press, 1958.

2. Rahim, J.A. Outline of a Federal Constitution for Pakistan: Pakistan People’s Party Political Series (4), 1969.

3. Sheikh, Zain. The Constitution of the Islamic Republic of Pakistan. Karachi: Pakistan Law House, 2004

4. Tribe, Lawrence. H. American Constitutional Law (Third Edition). New York: Foundation Press, 2000.
5. Photocopied complete texts or excerpts (as applicable) of the (italicised) legal cases and materials.

Prerequisites for this course: None.Lectures: This is a 4-unit course. There will be 20 sessions of 100 minutes each. Classes will meet on Tuesdays and Thursdays from 2.00 p.m. to 3.40 p.m.

Grading Class Participation: 20% Panel Presentations: 15% Quizzes: 20% Final Exam: 45%

The purpose of having class participation and panel presentations is to invite different perspectives to what is intrinsically a highly contentious and debated field of study. I am a great believer in class discussion as it enriches the discourse and helps develop confidence to put one’s view across. Speaking one’s mind can also help clarify one’s thought process. The way the panel presentations will work is that small group "panels" of students will be assigned by myself to be responsible - in particular - for a given class session’s material. During this session, this panel can make a brief formal or informal presentation about the main themes and issues which merit attention and I may then ask individual members of the panel various questions about the material assigned for that day, and how it relates to broader themes discussed in the course. More details of how this panel system will operate will be distributed to students early in the course. Both the written exams will be open book/open notes as the purpose of the course is not to gauge memory but powers of comprehension, analysis and communication.

Course Schedule:

As mentioned before, the course is divided into four modules for thematic clarity. The topics and required readings for each session are listed below. (For Non – Law & Policy Students): Please note that these readings will include excerpts from cases and hence students will require some time to get used to basic legal terminology and the legal way of writing. However, every effort will be made to ensure that legal jargon does not become an impediment to understanding the core issues being debated. The relevant terminology will be explained in class and the complex and at times lengthy judgments (of which the students will just be required to read selected excerpts) will be extensively discussed and explored in the lectures. The basic advice to students is to not get bogged down by factual details or side issues but to capture the essence of the main issue at hand and the arguments and counter-arguments pertaining to it.