What constitutional law is, what it covers, and what constitutionalism means

What this chapter is for

This chapter answers three questions that sit under everything else in the subject. What is constitutional law? What does it cover? What is constitutionalism, the idea that a government must work inside limits it cannot break when it likes? Every later chapter, on a country, on Pakistan’s history or on a case, assumes you can answer these three in your own words.

The chapter has three parts. Sections 1 to 6 teach what constitutional law is. They start with what a constitution does, give the classic definitions, walk through what the subject covers in Pakistan’s Constitution, show where its rules come from in Pakistan and in Britain, separate it from the subjects next to it, and explain why a constitution sits above every other law. Sections 7 to 12 teach constitutionalism. They say what it means, test it against Pakistan’s own history, show a country that had a fine written constitution and no constitutionalism, give the critics their say, and end with where Pakistan stands today, after the Twenty-seventh Amendment of 2025. Section 13 clears up what students mix up, and the last four sections turn all of it into marks.

In the eleven papers from CE-2016 to CE-2026, FPSC has not set “define constitutional law” as a question of its own. It does set questions that cannot be answered without this chapter. In CE-2021 it asked how judicial approval of governments outside the Constitution had weakened democracy, and in CE-2026 it asked whether such approval “undermines Constitutionalism”.¹ Both are answered from the ideas taught here.

Before you start

The words

• Constitution. The basic law of a country. It creates the main offices of the state, gives them their powers, and sets the limits on those powers. In Pakistan it is the written document of 1973.
• Constitutional law. The body of rules about those offices, powers and limits, and the subject that studies them. It is wider than the document, as the section on defining it shows.
• Constitutionalism. The idea that the people who govern are bound by the constitution, and that some person or body can hold them to it. It is about practice, not paper.
• Organ of the state. One of the main bodies through which a state acts. The usual three are the legislature (Parliament, which makes laws), the executive (the government, which runs the country and carries out the laws) and the judiciary (the courts, which decide disputes and say what the law means).
• Amendment. A change made to the words of a constitution, by the procedure the constitution itself lays down. In Pakistan, Articles 238 and 239.
• Judicial review. The power of a court to examine a law or an act of government and declare it void if it breaks the constitution.
• Martial law. Rule by the army, with the army chief or an officer named by him acting in place of the civilian government. Pakistan has had four periods of it, in 1958, 1969, 1977 and, in a different legal form, from 1999.
• Abrogate. To cancel a constitution completely, so that it no longer exists. Different from holding it in abeyance, which suspends it while it still exists, so that it can be brought back.
• PLD. The abbreviation for the law reports most Pakistani judgments are cited from. “PLD 2000 SC 869” means the 2000 volume, the Supreme Court section, page 869. The chapter on how to sit this paper shows how to read a citation.

The story in plain words

Pakistan became independent in 1947 without a constitution of its own. It ran on an adapted British law, the Government of India Act 1935, while its first Constituent Assembly tried to write one. That Assembly was dissolved by the Governor-General in 1954, a second Assembly was elected in 1955, and the first Constitution came into force on 23 March 1956. It lasted two and a half years. On 7 October 1958 the President abrogated it and declared martial law.⁴

A second Constitution was given by General Ayub Khan on 1 March 1962 and set aside when martial law came again on 25 March 1969. After the separation of East Pakistan in 1971, the National Assembly passed the present Constitution on 10 April 1973, and it came into force on 14 August 1973.⁴ That Constitution has survived two long periods of military rule, from 1977 and from 1999, by being held in abeyance rather than abrogated. Twenty-four amendment Acts have been made to it, the latest numbered the Twenty-seventh, because three numbered Bills never became law.^{17 4} That latest amendment, in November 2025, created a new court above the Supreme Court for constitutional cases.³

Through all of this the courts were asked again and again whether a government that had taken power outside the Constitution was lawful. Their answers, and what they did to the idea of limited government, are a large part of this subject. This chapter gives you the ideas you need to judge them.

1. What a constitution does

Start with one small rule in Pakistan’s Constitution. When Parliament passes a Bill, it goes to the President for assent, the formal approval that turns it into law. Article 75 gives the President ten days. In that time he may sign it or, unless it is a money Bill, send it back with a message asking Parliament to think again. If Parliament, sitting jointly, passes it again, the Bill goes back to the President, who “shall give his assent within ten days, failing which such assent shall be deemed to have been given”.² In other words, if he does nothing, the law is made anyway.

Look at what that one Article does. It creates something, because it sets up the President and Parliament as parts of the law-making process. It gives power, because the President may delay a Bill and ask for it to be reconsidered. It limits power, because the delay has an end and the President cannot kill a Bill by sitting on it. Every constitution does these three things, over and over, for every office it creates.

These three jobs are the best short answer to “what is a constitution for?” A constitution makes the state, by creating its offices and saying who fills them and how. It empowers the state, by giving each office the powers it needs to govern, to make laws, to tax, to judge. It limits the state, by saying what those offices may not do and what rights the citizen keeps against them. A document that only created and empowered would be a chart of who gives orders to whom. It is the third job, the limits, that makes a constitution worth fighting over.

The Constitution of 1973 does all three in its first pages. Article 1 creates Pakistan as “Federal Republic to be known as the Islamic Republic of Pakistan” and names its territories. Articles 141 and 142 later give Parliament and the Provincial Assemblies their power to make laws. Parliament alone legislates on the subjects in the Federal Legislative List, both may legislate on criminal law, criminal procedure and evidence, and the Provincial Assembly alone legislates on every matter “not enumerated in the Federal Legislative List”. Article 8 then sets a limit on all of them. Any law that takes away or abridges a fundamental right is, to that extent, void.²

Keep these three jobs in mind through the whole subject. When you read about a country’s constitution, ask how it creates its offices, how it empowers them, and how it limits them. When you read about a crisis in Pakistan, ask which of the three jobs broke down. Most of the time it is the third.

2. Defining constitutional law

The definition most textbooks start from was written by A. V. Dicey, a professor of English law at Oxford, in a book first published in 1885 whose last edition he revised in 1915. He wrote that constitutional law “appears to include all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state.”⁶

Read it slowly, because every phrase does work. “Sovereign power” means the highest power in the state, the power to make law and to govern. “Distribution” means who holds which part of it, such as how much belongs to Parliament, how much to the government, how much to the courts and how much to a province. “Exercise” means how they use it, such as the procedure for passing a Bill, the conditions for declaring an emergency. “Directly or indirectly” widens the net. A rule about who may vote for the National Assembly does not itself give anyone power, but it decides who will hold it, so it is constitutional law too.

Dicey then split these rules into two sets, and the split is the most useful thing in his definition. The first set are rules enforced by the courts. These, he wrote, “constitute “constitutional law” in the proper sense of that term”, and he called them “the law of the constitution”. The second set are “conventions, understandings, habits, or practices” which guide the conduct of ministers and officials but “are not in reality laws at all since they are not enforced by the Courts”. He named this second set “the conventions of the constitution”.⁶

The difference is easy to see in Britain, where Dicey was writing. A British law says that Parliament can make law on anything. A British convention says that the Parliament in London will not normally make law on a matter handed to the Scottish Parliament without that Parliament’s consent. In 2016 Parliament even wrote the convention into an Act, which says that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”¹²

In 2017 the United Kingdom’s Supreme Court was asked whether that convention could stop the government taking Britain out of the European Union without Scotland’s consent. It said no. Writing the convention into an Act had not turned it into a rule the courts could enforce. The court accepted that conventions “play a fundamental role in the operation of our constitution”, but held that policing them “does not lie within the constitutional remit of the judiciary”.¹¹ That is Dicey’s line, drawn by a court more than a century later. A convention binds, but politically. Only law binds in court.

Conventions have a chapter of their own later in this subject. For now, hold the point that matters for a definition. Constitutional law, in the strict sense, is the part a court will enforce.

A broader definition, and Paine’s narrower one

Modern writers usually give a broader definition than Dicey’s. Constitutional law, on this view, is the body of law that sets up the organs of the state, divides power between them and between the centre and the regions, governs the relations between them, and protects the rights of the citizen against them. This is Dicey’s “distribution or the exercise of the sovereign power” with the citizen’s rights added, because in most countries today the rights are written into the constitution itself. In Pakistan they are Articles 8 to 28.

Thomas Paine, the English-born writer of the American and French revolutions, took a narrower and stricter view in 1791. For him a constitution was a document, or it was nothing. He wrote that a constitution “is not a thing in name only, but in fact”, and that “wherever it cannot be produced in a visible form, there is none.” He went on with the sentence most often quoted from him: “A constitution is a thing antecedent to a government, and a government is only the creature of a constitution.”⁷ By “antecedent” he meant that the constitution comes first, made by the people, and the government is created by it and must obey it. On his test Britain had no constitution at all, and he said so, challenging his opponent Edmund Burke to “produce the English Constitution”.⁷

You do not have to choose between Dicey and Paine. Dicey describes the subject as lawyers find it, which includes countries like Britain where the rules are scattered. Paine describes what a constitution ought to be, a single document that stands above the government. The two together give you the best answer in an exam. Constitutional law is the law that creates, empowers and limits the organs of the state and protects the citizen’s rights against them. In most countries it is written in one supreme document, which the government did not make and cannot change by itself.

3. What constitutional law covers

The best way to see what constitutional law covers is to open a constitution and look at what it contains. Pakistan’s Constitution, in the National Assembly’s edition as amended up to 21 November 2025, has a Preamble, twelve Parts, an Annex (the Objectives Resolution of 1949) and a set of Schedules. The Parts run to 178 pages.² The figure below shows how those pages are shared out.

Each Part is one area of the subject, and together they are its scope. Read down the list and you have the whole syllabus of constitutional law in miniature.

• The state itself. Part I says what Pakistan is, its territories and its state religion, gives every person the right to be dealt with according to law, and makes the Objectives Resolution a substantive part of the Constitution (Article 2A).
• The citizen and the state. Part II holds the fundamental rights (Articles 8 to 28) and the Principles of Policy (Articles 29 to 40). The rights can be enforced in court. The principles guide the state, but under Article 30 no law or action can be challenged for failing to follow them.²
• The organs of the state. Part III creates the federal organs, the President, Parliament and the federal government. Part IV creates the same three in each province. Part VII creates the courts.
• The division of power between centre and provinces. Part V divides law-making between Parliament and the Provincial Assemblies. Part VI divides money, property and borrowing.
• The machinery of democracy. Part VIII sets up the Election Commission and the rules for elections.
• Religion and the state. Part IX deals with the Council of Islamic Ideology and bringing laws into line with Islam.
• Abnormal times. Part X allows the President to proclaim an emergency and says what powers that brings.
• Change. Part XI lays down how the Constitution itself is amended.
• Everything else. Part XII covers the civil service, the armed forces, oaths of office, and the transitional provisions that keep old laws alive and, in Articles 270 to 270AA, deal with the laws made under military rule.

Notice which Part is longest. Part VII, the judiciary, takes 40 of the 178 pages, 22.5 per cent of the whole. Part III, the federation, takes 36, and Part XII takes 33. Those three Parts together are 61 per cent of the document. That tells you where most of the detailed law sits, and where most of the disputes have been. The judiciary’s Part is long because it has been amended so often, most recently in 2025, when a whole new court was added to it.

Put the list together and the scope of constitutional law, in any country, comes to six things. It covers how the state is formed and what kind of state it is (federal or unitary, republic or monarchy). It covers the organs of the state and how each is made up. It covers the powers of each organ and the limits on them. It covers the relations between the organs, which is where separation of powers and checks and balances come in. It covers the division of power between the centre and the regions. It covers the rights of the citizen and how they are protected. Most constitutions add two more, the procedure for amending the constitution and the rules for emergencies.

Every head of FPSC’s syllabus sits inside this scope. The first head names concepts such as conventions and the rule of law, the structures of states and the judiciary, and rights. The second asks for the constitutions of eight countries, which is this same scope applied eight times. The third and fourth are Pakistan’s history and its cases, which is the scope tested in real disputes.⁵

4. Where constitutional law comes from

In Pakistan nearly all constitutional law comes from one place, the written Constitution of 1973 as amended. That is what makes it a written, or codified, constitution. It is not the only source, though, and a full answer names four.

The first and main source is the Constitution itself, with its amendments, twenty-four Acts up to the one numbered the Twenty-seventh.¹⁷ The second is Acts of Parliament on constitutional matters. The Constitution often says that Parliament “shall by law provide” for something, and the Act it makes then fills in the detail. Article 6 declares that subverting the Constitution is high treason and leaves the punishment to Parliament, which provided it in the High Treason (Punishment) Act 1973. The Elections Act 2017 fills in Part VIII.

The third source is judgments of the superior courts. The Constitution’s words have to be applied to real disputes, and what the courts say they mean becomes part of the law. Article 189 makes this formal. A decision of the Federal Constitutional Court, so far as it “decides a question of law or is based upon or enunciates a principle of law”, binds “all other courts in Pakistan including the Supreme Court”, and a decision of the Supreme Court binds every court except the Federal Constitutional Court.² Much of what a student of this subject learns, the doctrine of necessity, the limits on the President’s power to dissolve the National Assembly, comes from judgments rather than from the text.

The fourth source is conventions, the practices that fill gaps the text leaves. In Pakistan they matter far less than in Britain, because the text is long and detailed. They still exist, in the way the Houses of Parliament run their business and in the working relations between the President and the Prime Minister, and the chapter on conventions gives Pakistani examples.

The United Kingdom

The United Kingdom is the standard contrast, and its Supreme Court has described its own position plainly. “Unlike most countries, the United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law.” Its arrangements “have developed over time” through “a combination of statutes, events, conventions, academic writings and judicial decisions”.¹¹

So in Britain the sources are spread out. Some are very old statutes. Magna Carta, in the version of 1297 still partly in force, promises that no free man shall be imprisoned or punished “but by lawful judgment of his Peers, or by the Law of the Land”.¹³ The Bill of Rights of 1689 declared that “the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall”.¹⁴ Others are modern statutes, such as the Acts that created the Scottish Parliament. Others again are judgments of the courts, conventions such as the one on Scotland, and the writings of scholars such as Dicey, which British judges still quote.

What holds this together is one rule, the sovereignty of Parliament. The same court called it “a fundamental principle of the UK constitution”, and summed it up in Dicey’s words, that Parliament has “the right to make or unmake any law whatsoever”.¹¹ Since Parliament can change any of these sources by an ordinary Act, none of them stands above it. This is the deepest difference between the British and the Pakistani systems, and the next three sections come back to it.

5. Constitutional law and its neighbours

Students often lose marks by mixing constitutional law with the subjects beside it. The cleanest way to keep them apart is to ask what each one is about.

Constitutional law is about the organs of the state themselves, their powers and their limits, and the citizen’s basic rights. Administrative law is about how the government’s departments and officials use the powers that ordinary law gives them, day to day. When the Prime Minister advises the President to dissolve the National Assembly, the question whether he may is constitutional law. When a district officer refuses you an arms licence, the question whether he followed the rules and acted fairly is administrative law.

The two overlap, and the overlap sits in Pakistan’s Constitution. Article 199 gives a High Court power to order a person performing functions for the Federation, a Province or a local authority “to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do”, or to declare what he did “without lawful authority and of no legal effect”.² That is the High Court’s power to issue writs, the court orders that keep officials inside the law. It is written in the Constitution, so it is constitutional law. It is used, most days, against officials making ordinary decisions, so it is also the main tool of administrative law. Article 212 allows the legislature to set up administrative courts and tribunals with exclusive power over matters such as the terms of service of civil servants, and Articles 240 to 242 deal with the civil service itself.²

Constitutional law also borders political science. Political science studies how power actually works, including parties, elections, the army’s role and public opinion, whether or not a law covers it. Constitutional law studies the rules about power, and especially the rules a court will enforce. A question that asks how the Eighteenth Amendment changed relations between the centre and the provinces is constitutional law. A question that asks why the parties agreed to it is political science. The best answers on this paper use political facts to explain why a rule was made, but they keep the rule at the centre.

Finally there is international law, the law between states. It meets constitutional law where a constitution says how treaties are made and whether they bind the country’s courts. In Pakistan, as a rule, a treaty does not become part of the law the courts apply until Parliament makes a law to give it effect. So international law stays outside the courtroom until Parliament lets it in, and constitutional law decides how that is done.

6. The supremacy of the constitution

If Parliament could change the constitution by an ordinary Act, the limits in the constitution would be limits only until Parliament found them inconvenient. That is why a written constitution claims to be the highest law, above every Act, Ordinance and order.

The classic statement of this came from the United States in 1803. In Marbury v. Madison, Chief Justice John Marshall put the choice in one sentence. “The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.”⁹ There is no middle way. If it is the first, he went on, then “an act of the legislature, repugnant to the constitution, is void”. Someone has to decide when that has happened, and Marshall said who. “It is emphatically the province and duty of the judicial department to say what the law is.”⁹

That case is where judicial review began, the power of a court to strike down a law because it breaks the constitution. The American Constitution itself says that it “shall be the supreme Law of the Land”, binding the judges in every state.¹⁰ The court in Marbury drew the conclusion that the judges must refuse to apply a law that conflicts with it.

Pakistan’s Constitution does not leave this to be worked out. It writes it in. Article 5(2) makes obedience to the Constitution and the law “the inviolable obligation of every citizen”. Article 8 declares void any law inconsistent with a fundamental right, and forbids the state to make one. Article 4 gives every person the right “to be treated in accordance with law”, and says that no action against anyone’s “life, liberty, body, reputation or property” may be taken “except in accordance with law”.² Article 175(2) adds that no court has any jurisdiction except what the Constitution or a law gives it.²

Put these together and you get a ladder of laws, with the Constitution at the top. Each rung must stay inside the one above it, and the courts are there to say when it has not.

Read the figure from the bottom. A police officer arrests you. Under Article 4 he needs a law that allows it, say a section of the Code of Criminal Procedure. That section must sit inside the Act of Parliament that made it, and the Act must be inside Parliament’s powers under Part V and must not breach a right in Part II. If any rung breaks the one above, a High Court can say so under Article 199. That is supremacy at work, every day, in ordinary cases.

Britain shows the other possibility. Because Parliament is sovereign, no British court can strike down an Act of Parliament. The most it can do is interpret the Act, and, under the Human Rights Act 1998, declare that it is incompatible with a right and leave Parliament to decide what to do. So in Britain the highest law is whatever Parliament last enacted. In Pakistan, the United States and India it is the written constitution, and the courts guard it. That difference, between the supremacy of Parliament and the supremacy of the constitution, comes up again and again on this paper.

7. Constitutionalism

A constitution is a document. Constitutionalism is a way of governing. It means that those in power are actually bound by the constitution’s limits, that they cannot step outside them when it suits them, and that some person or body is able to hold them to those limits. A country can have a constitution without constitutionalism, as the Soviet Union did. A country can also have constitutionalism without a single written constitution, as Britain does.

The clearest statement of why limits are needed was written in 1788 by James Madison, one of the authors of the American Constitution, in a newspaper essay defending it. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Since neither is true, he wrote, “the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”⁸

That sentence holds the whole idea. The first half is the constitution’s power-giving job, and the second half is its limiting job. Madison’s answer for how to make government control itself was to divide power between bodies that would check one another. “Ambition must be made to counteract ambition,” he wrote.⁸ If Parliament, the government and the courts each have their own power and their own reason to defend it, none of them can easily take all of it.

What constitutionalism needs

Draw these threads together and constitutionalism needs five things in practice.

1. A higher law. The basic rules stand above ordinary law and cannot be changed by the government of the day on its own. In Pakistan an amendment needs two-thirds of the total membership of each House, under Article 239.²
2. Limited powers. Every office has only the powers the constitution gives it, and no more. Article 4 is this rule for every official in Pakistan.
3. Divided powers. Power is split between the organs, and between the centre and the provinces, so that no one holds all of it.
4. Protected rights. The citizen keeps rights the state cannot take away by ordinary law, as Article 8 provides.
5. Someone to enforce it. An independent court, or some other body, can say when the limits have been crossed and be obeyed. Without this the first four are promises.

The fifth is the one that fails most often, and it is the one FPSC’s questions keep returning to.

Pakistan’s Constitution states a version of constitutionalism in its first sentence. The Preamble begins, “Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust”.² Authority is held in trust and used within limits. That is constitutionalism in the language of faith, and it was made a substantive part of the Constitution by Article 2A, which gives effect to the Objectives Resolution of 1949.

The Preamble goes on to promise that the state “shall exercise its powers and authority through the chosen representatives of the people”, that fundamental rights “shall be guaranteed”, and that “the independence of the judiciary shall be fully secured”.² Those three promises are the democratic, rights-based and judicial parts of constitutionalism. In an exam, quote them when you need to show that the idea is not foreign to Pakistan. It is in the first page of its own Constitution.

8. Constitutionalism tested in Pakistan

Constitutionalism is tested when someone breaks the rules and the question is whether anyone can stop them, or at least refuse to call it lawful. Pakistan’s history gives four such tests, shown in the timeline below.

The highlighted points are the breaks. In 1958 the President abrogated the first Constitution and declared martial law. In 1969 the army chief took over again and set aside the second. In 1977 martial law was declared and the 1973 Constitution was held in abeyance, not abrogated. In October 1999 the army took over the government, and through a Provisional Constitution Order issued on 14 October the Constitution was held in abeyance once more.⁴

After every break, someone challenged it in court, and the courts had to answer. Their answers are the subject of the case chapters in the last head of this syllabus. Here you need only the pattern.

• In State v. Dosso (PLD 1958 SC 533) the Supreme Court held that a successful revolution creates its own legal order, so the new regime’s orders were valid.⁵
• In Asma Jilani v. Government of the Punjab (PLD 1972 SC 139), decided after the 1969 regime had ended, the Supreme Court rejected Dosso and called the 1969 martial law illegal.⁵
• In Begum Nusrat Bhutto v. Chief of the Army Staff (PLD 1977 SC 657) the Supreme Court validated the 1977 martial law on the ground of state necessity, the argument that a step outside the law can be accepted when it is needed to save the state.⁵
• In Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869), decided on 12 May 2000, the Supreme Court validated the 1999 takeover, gave the government three years from 12 October 1999 to hold elections, and allowed it to amend the Constitution so long as the amendments did not change the basic features of federal parliamentary democracy, the independence of the judiciary and the Islamic provisions of the Constitution.⁴

Three of the four times, the court accepted the break while the regime held power. The one clear refusal, Asma Jilani, came after the regime had fallen. This is what CE-2026 asked you to examine. The question is whether the courts, by validating these steps, weakened the very idea they were there to protect.

The Constitution’s own answer

The Constitution has answered in its own text, more than once. Article 6, in the 1973 text, made it high treason to abrogate or subvert the Constitution by force or other unconstitutional means. The Eighteenth Amendment, which received the President’s assent on 19 April 2010, rewrote clause (1) to cover anyone who “suspends or holds in abeyance” the Constitution as well, the method used in 1977 and 1999.^{4 2} It also added clause (2A): “An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Federal Constitutional Court, Supreme Court and a High Court.”² The words “Federal Constitutional Court” were added in 2025.²

The same amendment changed Article 270AA. It now declares the Proclamation of Emergency of 14 October 1999, the Provisional Constitution Order of 1999, the oath order that removed judges in 2000 and the Legal Framework Order of 2002, “notwithstanding any judgment of any court including the Supreme Court or a High Court”, to have been “made without lawful authority and of no legal effect”.² In plain words, Parliament overruled Zafar Ali Shah on the question of lawfulness, while keeping in force, under the rest of the Article, most of the ordinary laws made in those years so that the country’s daily business was not undone.

The courts moved too. In Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), a bench of fourteen judges held that the emergency General Musharraf proclaimed on 3 November 2007, and the removal of judges under it, were unconstitutional.⁵ The Court refused to save them by the doctrine of necessity, the reasoning its predecessors had used in 1977 and 2000.

One small fact shows how a constitution can be restored in name before it is restored in practice. When the 1973 Constitution was revived after the 1977 martial law, most of it came back into force on 10 March 1985. The fundamental rights in Articles 8 to 28, Article 199 and a few others were brought back only on 30 December 1985.² For 295 days the Constitution was in force but its citizens could not go to a High Court to enforce their rights under it. That is exactly the gap between a constitution and constitutionalism. The paper was back. The limits were not.

9. A constitution without constitutionalism: the Soviet Union, 1936

The Soviet Union adopted a new constitution in December 1936. On paper it was generous. Article 125 guaranteed citizens “freedom of speech”, “freedom of the press”, “freedom of assembly, including the holding of mass meetings” and freedom of street processions. Article 127 promised that “No person may be placed under arrest except by decision of a court or with the sanction of a procurator.”¹⁵

Read the opening words of Article 125 again. These freedoms were granted “In conformity with the interests of the working people, and in order to strengthen the socialist system”.¹⁵ Article 126 then named the Communist Party as “the leading core of all organizations of the working people, both public and state”.¹⁵ So the rights were given only for the system’s purposes, and one party stood above every state body. There was no court able to hold the party or the government to the text. In the two years after the Constitution was adopted, 1937 and 1938, the secret police arrested and executed people in their hundreds of thousands in the purges, with the constitution’s promises in force on paper the whole time.

This is the cleanest example of a constitution without constitutionalism. Every one of the five things constitutionalism needs was missing except the first, a document claiming to be the highest law. Powers were not limited, because the party’s were not. Powers were not divided. Rights were conditional. No one could enforce the text against those in power.

10. Constitutionalism without a single document: Britain

Britain is the opposite case. It has no single written constitution, and its Parliament can in law make or unmake any law at all. Yet it is usually counted among the most constitutional of states. Governments obey court orders, lose elections and leave office, and keep to conventions they could in law ignore. When the British government tried in 2016 to begin leaving the European Union using the Crown’s own powers, without an Act of Parliament, the Supreme Court held that it could not, because doing so would change the rights of citizens that Parliament had created.¹¹ The government obeyed and asked Parliament for an Act.

Put the two cases side by side and the lesson is plain. A written constitution is neither necessary nor enough for constitutionalism. What matters is whether those in power accept limits in practice and whether there is someone able to enforce them. A written, supreme constitution with judicial review, as in Pakistan, is a way of making that more likely. It is not a guarantee.

11. The critics

The sharpest early critic of written constitutions was Ferdinand Lassalle, a German socialist, in a speech in Berlin in 1862. He argued that every country has a “real constitution”, which is the actual balance of power in it among the army, the landowners, the bankers and the workers. The written constitution is only that balance “put down on paper”. Where the two match, the paper lasts. Where they do not, he said, “the written constitution – the piece of paper – is invariably vanquished by the real constitution – the actual relation of forces in the country.”¹⁶

Pakistan’s history gives Lassalle’s argument some force, and an examiner will expect you to know it. Three constitutions were written, and each was set aside by whoever held the real power at the time. A good answer does not stop there, though. Lassalle’s view leaves no room for the cases where the paper won. The 1973 Constitution was never abrogated, both military rulers who suspended it chose to bring it back, and in 2010 Parliament wrote into it a bar on validating its own suspension. The paper shapes what power can do as well as being shaped by it.

A second criticism comes from inside constitutionalism itself. If the courts guard the constitution, who guards the courts? When judges strike down laws passed by elected members, or even amendments to the constitution, an unelected body has the final word over an elected one.

This debate came to a head in Pakistan in District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401), where seventeen judges heard challenges to the Eighteenth and Twenty-first Amendments. As Waqqas Mir, a Pakistani lawyer, sets out in a case note published by the law school of the Lahore University of Management Sciences, thirteen of the seventeen held that the Court could strike down a constitutional amendment if it altered the “salient features” of the Constitution, such as democracy, the parliamentary form of government and the independence of the judiciary. Four held that it had no such power.¹⁸

Mir took the side of the four. He argued that the Court had made itself, in effect, “the final author of the Constitution”, although the text, in Article 239(5) and (6) as it then stood, expressly barred the courts from reviewing amendments.¹⁸ If citizens dislike an amendment, he wrote, the minority judges were “asking us to turn to the political process and the politicians instead of unelected judges on the Supreme Court”. In his words, “This view, no doubt, strengthens democracy.”¹⁸

The other side has a serious answer, and you should give it. A constitution that can be amended by any two-thirds majority, on any subject, protects nothing that a large enough majority wants to remove. The thirteen judges thought some core features must lie beyond amendment, as the courts of India and Bangladesh had held of their own constitutions.¹⁸ Both sides claim to be defending constitutionalism, one by trusting elected representatives, the other by putting limits even on them. In an exam, set the two out fairly, say which you find stronger and why, and tie the answer to what the text now says, which is the next section.

12. Where Pakistan stands now

The Constitution (Twenty-seventh Amendment) Act, 2025 is dated 13 November 2025 and is, as of October 2026, the latest amendment.³ It changed the judiciary more than any amendment since 1973, and it answered the 2015 debate in its own words.

It created a Federal Constitutional Court, now named first among Pakistan’s courts in Article 175(1).² Under Article 175E(1), it alone hears “any dispute between any two or more Governments”, which its Explanation defines as the Federal Government and the Provincial Governments, so a dispute between two provinces goes to it too. It gives only “declaratory judgments”, that is, rulings that state the law without ordering anyone to do anything. It may also make orders to enforce fundamental rights in a question of public importance, but that power “shall only be exercised if an application is filed by a person in that Court”.² Article 184, which used to give the Supreme Court that original power and which the Supreme Court had long used on its own motion, was omitted. Under Article 189, the new Court’s decisions on a question of law bind every other court, “including the Supreme Court”.²

It also rewrote clause (5) of Article 239. The clause now reads, “Notwithstanding anything contained in the Constitution and any judgment of any court, no court shall have jurisdiction to call in question any amendment to the Constitution on any ground whatsoever.” Clause (6), unchanged, declares that “there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.”² The words “any judgment of any court” are aimed at the salient-features reasoning of 2015. On the face of the text, Parliament has the last word on amendments.

This is current law and a live debate, and an examiner will reward you for handling it calmly. Start from the text as it now stands, because that is the law you must answer from. Then give the two readings fairly. Supporters of the change argue that it returns the final word on the Constitution to the people’s elected representatives, as the dissenting judges of 2015 had urged, and that a specialist court for constitutional questions can bring clarity. Critics argue that it gives the final word on the Constitution’s limits to the very body those limits are meant to bind, and leaves no court able to stop an amendment that destroys the Constitution’s core.

Whichever reading you prefer, keep to the register of a future officer. Say what the text does, what each side holds, and what would strengthen constitutionalism under it, for example settled conventions on how the new Court’s judges are chosen, or full reasons published for every constitutional ruling. A measured answer that argues from inside the Constitution scores. An attack on an institution does not.

13. What students mix up

Constitution and constitutionalism. A constitution is a document, or, in Britain, a set of rules. Constitutionalism is the practice of government being bound by it. Pakistan has had a constitution for most of its life and constitutionalism for less of it. Never use the two words as if they meant the same thing.

Constitutional law and conventions. In Dicey’s sense, constitutional law is the part a court enforces. Conventions are binding in politics but not in court. The Miller case of 2017 is your proof that even a convention written into an Act is still a convention.

Abrogation and abeyance. The 1956 Constitution was abrogated in 1958, and the 1962 Constitution was set aside in 1969. The 1973 Constitution has never been abrogated. It was held in abeyance in 1977 and 1999 and revived. That is why it is still in force, and why Article 6 was amended in 2010 to cover holding it in abeyance.

Supremacy of the constitution and sovereignty of Parliament. In Pakistan the Constitution is supreme, and Parliament must stay inside it, except that Parliament can amend it by two-thirds. In Britain Parliament is sovereign and no court can strike down its Acts. Do not write that Pakistan’s Parliament is sovereign in the British sense. Article 8 alone disproves it.

Written and rigid. A written constitution is not necessarily hard to change. Pakistan’s needs two-thirds of the total membership of each House, and twenty-four amendments have passed that test in both Houses since 1973.¹⁷ The American Constitution needs three-quarters of the states as well, and has been amended 27 times in more than two centuries. How written and how rigid a constitution is are two separate questions, taught in the next chapter.

The Supreme Court’s original jurisdiction today. Many guides still describe Article 184(3), the Supreme Court’s power to hear rights cases directly, often on its own motion. That Article was omitted in 2025. The power to hear a rights question of public importance directly now belongs to the Federal Constitutional Court under Article 175E(3), on an application.

14. What the examiners have asked

FPSC has not asked “define constitutional law” or “what is constitutionalism” as a question on its own in the eleven papers from CE-2016 to CE-2026. Two questions have been built on this chapter’s ideas, and both turn on the gap between a constitution and constitutionalism in Pakistan.¹

• CE-2021, Q.6. “The frequent Extra Constitutional arrangement and its judicial validation has weakened the democratic system in Pakistan. Give suggestions for improvement of Judicial Review in the light of Judgments of Superior Courts of Pakistan.”
• CE-2026, Q.5. “Judicial validation of extra-Constitutional measure undermines Constitutionalism. Examine this statement with reference to Constitutional history and the judgment in Zafar Ali Shah V. Geneal Pervez Musharraf (PLD 2000 Sc 869).” The paper prints “Geneal” for General.

Both need the cases in detail, which their own chapters teach. Both also need what this chapter teaches, a clear statement of what constitutionalism requires, so that you can show which requirement the judgments failed. A candidate who knows the cases but cannot say what constitutionalism is will describe the judgments without judging them. That is the most common way to lose marks on these questions.

The definitions in this chapter also feed the questions on conventions, the rule of law and the constitutions of other countries, which have their own chapters. The Rule of Law question of CE-2026, for instance, begins by calling it “a fundamental principle of constitutional governance”.¹

15. Facts to carry into the hall

• Dicey, 1915, p. 22. Constitutional law includes “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state.” Conventions “are not enforced by the Courts”.
• Paine, 1791. “A constitution is a thing antecedent to a government, and a government is only the creature of a constitution.”
• Madison, Federalist 51, 1788. “If men were angels, no government would be necessary.” Government must first control the governed and then “control itself”.
• Marbury v. Madison, 1803. “It is emphatically the province and duty of the judicial department to say what the law is.”
• R (Miller) v Secretary of State, [2017] UKSC 5. The UK has no “single coherent code of fundamental law”; conventions are not enforced by courts.
• Pakistan’s Constitution: dates. Passed 10 April 1973, authenticated 12 April 1973, in force 14 August 1973. Twenty-four amendment Acts, the latest numbered the Twenty-seventh and dated 13 November 2025; the Ninth, Eleventh and Fifteenth Bills never became law.¹⁷
• Supremacy articles. Article 4 (treatment in accordance with law), 5(2) (obedience to the Constitution), 8 (laws against rights void), 175(2) (no jurisdiction unless conferred), 199 (High Court writs), 189 (binding decisions).
• Article 6. Abrogating, subverting, suspending or holding the Constitution in abeyance is high treason; clause (2A), added in 2010, bars any court from validating it.
• Article 239(5) and (6), as of 2025. No court may question an amendment “notwithstanding … any judgment of any court”; no limit on Parliament’s amending power.
• The breaks. Abrogation 7 October 1958; martial law 25 March 1969; martial law 5 July 1977, Constitution in abeyance; takeover 12 October 1999, Provisional Constitution Order 14 October 1999.
• The cases. Dosso PLD 1958 SC 533; Asma Jilani PLD 1972 SC 139; Nusrat Bhutto PLD 1977 SC 657; Zafar Ali Shah PLD 2000 SC 869; Sindh High Court Bar Association PLD 2009 SC 879; District Bar Association, Rawalpindi PLD 2015 SC 401.
• The Parts. Twelve Parts, 178 pages in the 2025 edition; Part VII, the judiciary, is the longest at 40 pages.

16. What loses marks on this topic

• Defining by quotation alone. Writing Dicey’s sentence and moving on. Explain what “distribution” and “exercise” mean, and give a Pakistani example of each.
• Treating the document as the whole subject. Constitutional law also includes the Acts that fill in the Constitution, the judgments that interpret it and, in a smaller way, conventions. Name all four sources.
• Writing “constitution” where you mean “constitutionalism”. The CE-2026 question turns on this exact difference.
• Using the pre-2025 text. Describing Article 184(3) as the Supreme Court’s live power, or Article 239(5) in its old words, tells the examiner your notes are out of date. Answer from the Constitution as amended to 2025 and say in one line what changed.
• Denouncing instead of analysing. “The judiciary betrayed the nation” earns nothing. “The Court accepted a break with the Constitution on the ground of necessity, which Parliament later reversed in Article 270AA, and the lesson for judicial review is…” earns marks.
• Ignoring the other side. On the salient-features debate and on the Twenty-seventh Amendment, a one-sided answer cannot score well. Give both views their best case, then judge.

17. A worked answer plan

Take CE-2026, Q.5: “Judicial validation of extra-Constitutional measure undermines Constitutionalism. Examine this statement with reference to Constitutional history and the judgment in Zafar Ali Shah V. Geneal Pervez Musharraf (PLD 2000 Sc 869).”¹

First read what it asks. “Examine” means test the statement and come to a view. It names two things you must use, Pakistan’s constitutional history and one judgment. The key word is “Constitutionalism”, so your first job is to say what it means. Plan for about 700 words in thirty minutes.

1. Opening (about 80 words). Define constitutionalism in one sentence: government bound by a supreme constitution that someone can enforce. State your answer: the statement is largely true, because each validation told future rulers that a break could be made lawful, but the Constitution’s later amendments and the courts’ own reversal show the damage was not final.
2. What constitutionalism needs (about 100 words). The five requirements, briefly, with Madison’s line on government controlling itself and Article 4 and Article 5(2). Underline the fifth, an independent enforcer, because that is what validation weakens.
3. The history (about 150 words). The four breaks in order, with one line each on how the court answered: Dosso, Asma Jilani, Nusrat Bhutto. Point out that the one clear refusal came after the regime fell.
4. Zafar Ali Shah (about 150 words). The takeover of 12 October 1999, the Provisional Constitution Order of 14 October, and the judgment of 12 May 2000: validation on necessity, three years to hold elections, power to amend so long as federal parliamentary democracy, the independence of the judiciary and the Islamic provisions were kept. Then examine it. Giving a military ruler power to amend the Constitution is the clearest case of a court handing away the limits it exists to enforce.
5. The other side (about 80 words). The argument the judges themselves relied on, that refusing to validate would have left the country with no legal order at all, and that the time limit forced a return to elections, which did take place in 2002.
6. The correction (about 100 words). Article 270AA as amended in 2010, declaring the Proclamation of 14 October 1999 and the Provisional Constitution Order “without lawful authority”, and Article 6(2A), barring any court from validating high treason. Sindh High Court Bar Association (2009). These are the system restoring constitutionalism after the event.
7. Close (about 50 words). Your judgment. Validation did undermine constitutionalism, by making the courts partners in a break they should have refused to call lawful. The remedy is now in the text. Its strength depends on courts and Parliament both holding to it.

Notice how the plan uses this chapter only in parts 1, 2 and 6, and the case chapters for parts 3 to 5. That balance is right. The definition gives the answer its measuring stick, and the cases are what you measure.

What to remember from this chapter

• A constitution makes, empowers and limits the state. The limits are what make it matter.
• Dicey: constitutional law covers all rules affecting “the distribution or the exercise of the sovereign power”. He split it from conventions, which courts do not enforce.
• Constitutional law covers the state’s form, its organs, their powers and limits, their relations, centre and provinces, and citizens’ rights, plus amendment and emergencies. Pakistan’s twelve Parts are that scope written out.
• Pakistan’s sources are the Constitution, Acts filling it in, judgments (binding under Article 189) and, in a small way, conventions. Britain’s are statutes, judgments, conventions and writings, held together by the sovereignty of Parliament.
• Supremacy: Marbury (1803) said a law against the constitution is void and the courts must say so. In Pakistan Articles 4, 5(2), 8, 175(2) and 199 write that in.
• Constitutionalism means government actually bound by limits that someone can enforce. It needs a higher law, limited and divided powers, protected rights and an enforcer.
• Pakistan’s four breaks (1958, 1969, 1977, 1999) were mostly validated by the courts while the regimes held power. Articles 6(2A) and 270AA (2010) and the 2009 Sindh High Court Bar Association judgment answered that.
• The Soviet Constitution of 1936 shows a constitution without constitutionalism; Britain shows constitutionalism without a single written constitution.
• Critics: Lassalle said the paper always loses to the real balance of power. The democratic critique asks why unelected judges should have the last word, the question behind the 2015 salient-features ruling.
• Since November 2025, Article 239(5) bars any court from questioning an amendment “notwithstanding … any judgment of any court”, and a Federal Constitutional Court sits above the Supreme Court on constitutional questions.

Check yourself

Try each question from memory, in your own words, before you open the answer.

1. Using Article 75, show the three things every constitution does. (The section on what a constitution does)

2. What is the difference between “the law of the constitution” and “the conventions of the constitution” in Dicey’s sense? Give one example of a convention and say what a court did with it. (The section on defining constitutional law)

3. Name the four sources of constitutional law in Pakistan, and say which Article makes judgments binding. (The section on where constitutional law comes from)

4. A district officer cancels a shop’s licence without hearing the owner. Is this a question of constitutional law, administrative law, or both? Explain with an Article. (The section on constitutional law and its neighbours)

5. Explain, using Marbury v. Madison, why a written constitution needs judicial review, and say how Britain differs. (The section on supremacy)

6. Why is the period from 10 March to 30 December 1985 a good example of the difference between a constitution and constitutionalism? (The section on constitutionalism tested in Pakistan)

7. Give Lassalle’s criticism of written constitutions in one sentence, and one fact from Pakistan’s history that supports it and one that answers it. (The section on the critics)

8. Since November 2025, which court decides a dispute between the federal government and a province, what kind of judgment can it give, and what does Article 239(5) now say about amendments? (The section on where Pakistan stands now)

9. From the chapter on how to sit this paper: you have thirty-five minutes for each Part-II answer. How should you divide them, and what does the worked answer plan in this chapter suggest for word length? (The chapter on how to sit the paper, and the worked plan here)