Background Paper Constitutional Development in Pakistan
PILDAT Conference on Constitutional Development in Pakistan May 05, 2016 Islamabad
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Table of Contents Preface About the Author Constitutional Development in Pakistan
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Preface Constitutional Developments in Pakistan is a Background Paper authored by Mr. Shahid Hamid, Senior Advocate, Supreme Court of Pakistan for the PILDAT Conference on Constitutional Development in South in Islamabad on May 05, 2016. The Background Paper aims to trace the Constitutional Development in Pakistan keeping in view the factors of Principles and Practices of Federalism, Evolution of Form of Government (Parliamentary vs. Presidential), Role of Religion, Provision of Local Government, Reservation of Quotas, and the Constitutional Issue of Languages. For each of these factors, the Background Paper highlights their current status, historic evolution, the challenges faced and possible lessons to be learnt. Disclaimer The views expressed in this paper belong to the author and do not necessarily represent the views of Pakistan Institute of Legislative Development and Transparency (PILDAT). Islamabad May 2016
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About the Author
Mr. Shahid Hamid received his B.A. (Hons.) and M. A. Economics degrees from the University of Cambridge, UK and Barrister-at-Law from the Honourable Society of the Inner Temple, London. Mr. Shahid Hamid joined the Civil Services of Pakistan in 1964 and during his career from 1964-1976, he held many portfolios ranging from district administration to provincial finance department and later as Secretary to the Chief Minister, Punjab. He has practiced as an Advocate of the High Court from 1978 onwards and now serves as a senior and renowned advocate of the Supreme Court of Pakistan. He has also served as Federal Minister for Defence, Establishment & Law from Nov. 1996 - February 1997 and as Governor of the Punjab Province from March 1997to August 1999.
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Constitutional Development in Pakistan 1. We have always been a Federation though the quantum of powers reserved for the Federal Government, and the consequential degree of provincial autonomy, has varied from one Constitution to the other. We have had several Constitutions. Immediately after independence we adopted the Government of India Act 1935 as our Provisional Constitution pending framing of a new one by the Constituent Assembly, which failed to produce one till it was dissolved in 1954. The next Constituent Assembly gave us the 1956 Constitution, which perished with the promulgation of Ayub Khan’s Martial Law in 1958. An elected body did not make the second Constitution; it was gifted to us by Ayub Khan who had made himself a Field Martial by the time he made the gift in 1962. The gift died alongwith Ayub Khan’s ouster in 1969. Gen. Yahya Khan was about to gift yet another Constitution just before he was compelled to resign following the military debacle of December 1971. 2. The West Pakistan members of the Constituent Assembly elected in 1970 met to make the Interim Constitution of 1972 followed by the Permanent Constitution of 1973 which has somehow survived suspensions by Military Rulers, Gen. Zia-ul-Haq in 1977 and Gen. Musharraf in 1999 and then again in 2007. 3. Military rule automatically converts a parliamentary form of government into a Presidential form and a federal system into a unitary system by virtue of the fact that under military rule the will of the Chief of Army Staff by whatever name called has to prevail. The 1962 Constitution was a Presidential system. On paper there was a large degree of provincial autonomy as there were only 49 subjects in the federal and concurrent lists. In practice the nominated Governors of the two Provinces carried out the President’s will in all matters in which he was pleased to pass orders. The same de facto position prevailed during the tenures of Gen. Zia-ul-Haq and Gen. Musharraf who brought about a number of amendments in the 1973 Constitution to ensure their continuing dominance even after the return of civilian governments and elected Parliaments. These aberrations in the Constitution which gave it a mixture of presidential and prime ministerial forms of government have been mostly removed by the 18th Amendment of 2010. 4. The unanimous passage of the 2010 Amendment was brought about by a confluence of several political factors. First, there was the near consensus amongst political parties, civil society, the legal community and other stake holders that the ‘distortions’ made in the Constitution during the Musharraf era through transfer of powers from Parliament and the Prime Minister and his Cabinet to the Presidency, should be removed. Second, there was the insistent demand of the PML-N for repeal of the 17th Amendment which validated Nawaz Sharif’s removal from power in October 1999. Third, there was the unrelenting pressure of the smaller provinces that they would support the re-conversion of Pakistan’s quasi-presidential system to a true Parliamentary democracy, as envisaged when the present Constitution was first adopted in 1973, only if their demand for provincial autonomy was met simultaneously. Fourth, there was the agreement, at least initially, between the PML-N and the PPP to implement the Charter of Democracy agreed to between Mian Nawaz Sharif and Mohtarama Benazir Bhutto in 2006. 5. The 18th Amendment amended 102 Articles of the Constitution inclusive of is Annexures and Schedules, that is to say over 1/3rd of the Constitution. The Constitution that we have today is not the original 1973 Constitution. It is the 1973 Constitution as extensively amended in 2010.
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6. The All Party Raza Rabbani Committee whose report forms the basis for the 18th Amendment set out for itself 10 objectives, including transparency, reduction of individual discretion, strengthening of the Parliament and the Provincial Assemblies, Provincial Autonomy, independence of Judiciary, strengthening of fundamental rights, improving merit, good governance and strengthening of institutions. The 18th Amendment appears to have met, to a substantial degree, the objectives of strengthening Parliament and the Provincial Assemblies, devolution of power to the provinces, enhancement of fundamental rights and strengthening of institutions such as the Election Commission of Pakistan, the Council of Common Interests, the Office of the Auditor-General and the Federal Public Service Commission. The element of individual discretion has also been reduced to some extent. There is a large question mark whether the Amendment has led to greater transparency or improved merit or produced good governance. However, there has independent improvement in these areas, especially transparency through enactment of the Federal and Provincial Rights to Information law. 7. Immediately after passage of the 18th Amendment there was great debate whether independence of the judiciary have been safeguarded or eroded as a result of the new procedure prescribed for appointment of Superior Court Judges. The controversy has been satisfactorily resolved through passage of the 19th Amendment in response to concerns expressed by all 17 judges of the Supreme Court. The Full Court has since accepted that the revised manner of appointment does not adversely impinge on the independence of the judicial organ of state. 8. The main structural change has been in the nature of Federalism in Pakistan. Articles 141 to 159 of the Constitution delineate the relationship between the Federation and the Provinces. In this relationship, the transforming change is that the Concurrent List, comprising subjects on which both Parliament and the Provincial Assemblies could legislate, has been done away though Criminal Laws, Criminal Procedure and Evidence remain subjects on which both the National and Provincial legislatures can make laws. The Federal Legislative list has been divided into two revised parts and the subjects boilers for nuclear energy and international treaties, conventions and agreements, and international arbitration added to Part I of the Federal List: Part I contains the subjects in regard to which only Parliament can make laws and now comprises 59 subjects. By way of contrast the subjects in India’s Union List number 97. A word or two about the difference between the manner in which India and Pakistan have dealt with the issue of provincial autonomy. The Union Government of India is far more than empowered than its Pakistani counter-part because India has 29 states and 7 Union Territories and it would be unworkable for say a small state like Goa to exercise the degree of provincial autonomy conferred on the four Provinces of Pakistan under the 18th Amendment. 9. Matters enumerated under Part II of the Federal List are within the legislative competence of Parliament but subject to the overall policy control of the Council of Common Interests. In Part II ten subjects have been added to the eight that were already there: i. Electricity; ii. Major Ports; iii. All Regulatory Authorities established under the Federal Law; iv. National Planning and National Economic Coordination including planning and coordination of scientific and technological research; v. Supervision and management of Public debt;
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vi. Census; vii. Extension of the powers and jurisdiction of members of a police force belonging to any Province to: a. any area in another Province, but not so as to enable the police of one Province to exercise powers and jurisdiction in another Province without the consent of the Government of that Province, b. areas outside the Province; viii. Legal, medical and other professions; ix. Standards in institutions for higher education and research, scientific and technical research, and x. Inter provincial matters and coordination. Furthermore, Federation’s powers to entrust functions to Provinces will now be subject to ratification/ approval of such entrustment by the Assembly of the concerned Province. 10. The Council of Common Interests has been greatly strengthened. It is now to be chaired by the Prime Minister himself and is to have a permanent Secretariat. As before the members will be the four Chief Ministers and any three members of the Federal Government that the Prime Minister may nominate. There are as many as 18 subjects, over which it has policy control. In addition to this the CCI also has policy control over reservoirs and natural sources of water supply. In future the Federation shall not build new hydroelectric stations in any Province except after consultation with that Province. Finally, in case of a dispute between the Federation and a Province in respect of a matter relating to Electricity, the CCI is to resolve the dispute. Even prior to the 18th Amendment the CCI had power to resolve disputes in regard to natural sources of water supply which power now encompasses reservoirs also. It is to be regretted that the Council of Common Interests have not emerged as an effective constitutional tier because of its infrequent meetings notwithstanding the constitutional command that it must meet once in each quarter. 11. After deletion of the Concurrent list and transfer of some of the functions from the defunct Concurrent List to Part II of the Federal List, the further 34 responsibilities that stand transferred to the Provinces include: i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii. xiii. xiv. xv. xvi. xvii.
Civil Procedure including law of limitation; Marriage and divorce, infants and minors, adoption; Wills, intestacy and succession; Arbitration; Contracts including partnership and agency; Trusts and trustees; Transfer of property; Actionable wrongs; Removal of prisoners from one Province to another; Preventive detention; Arms, fire-arms and ammunition; Explosives; Opium; Drugs and medicines; Infectious and contagious diseases; Mental illness; Environmental pollution and ecology;
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xviii. xix. xx. xxi. xxii. xxiii. xxiv. xxv. xxvi. xxvii. xxviii. xxix.
Population planning and social welfare; Welfare of labour; Trade unions; Labour exchanges, employment information bureaus and training establishments; Safety of labour in mines, factories and oil-fields; Unemployment insurance; Shipping and Navigation on inland waterways; Mechanically propelled vehicles; Newspapers, books and printing presses; Evacuee property; Ancient and historical monuments; Curriculum, syllabus, planning, policy, centres of excellence and standards of education (except in institutions of higher education and research and scientific and technical institutions); xxx. Islamic education; xxxi. Zakat; xxxii. Production, censorship and exhibition of films; xxxiii. Tourism, and xxxiv. Auqaf 12. The demands of all provinces especially the smaller provinces for greater autonomy, administrative and financial, have been met. Apprehensions of the provinces in regard to revenues have also been addressed, by inclusion of Clause 3A and 3B in Article 160 of the Constitution. “(3A) the share of the Provinces in each Award of the National Finance Commission shall not be less than the share given to Provinces in the previous Award. (3B) the Federal Finance Minister and the Provincial Finance Ministers shall monitor the implementation of the award biannually and lay their reports before both Houses of Majlis e Shoora (Parliament) and the Provincial Assemblies.” The more or less concurrent agreement on the NFC Award has placed substantially larger resources in the hands of the provinces, especially Balochistan and Khyber Pakhtunkhwa, to meet their enhanced responsibilities. Through this Award the provinces have become entitled, as of right, to the entire proceeds of the excise duty on oil in addition to the excise duty on natural gas. The Provinces have also been given power to raise domestic or foreign loans with the approval of the National Economic Council. 13. The question remains whether the transfer of administrative and financial autonomy to the Provinces is matched by required administrative expertise and infrastructure at the provincial level. The Provinces, especially the smaller ones, are still to bridge a yawning capacity gap to improve upon their service delivery. 14. Likewise, matters relating to Education, having been fully and entirely devolved to the Provinces, carry the responsibility of ensuring free education to all children between the ages of five and sixteen years as mandated by newly inserted Article 25A. To date, none of the provinces have moved effectively to make the right of free education available to all those unable to afford education in private schools. 15. At the same time, devolution of certain powers, e.g. registration and control of drugs, have led to co-ordination problems which have been aggravated by the so far tepid performance of the Council of Common Interests and its Secretariat. It is unfortunate that
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political considerations have aggravated this problem. The proposal of the Federal Government that it should retain the Drug Regulatory Authority was reportedly endorsed by the other three provinces but opposed by the Punjab. This led to a vacuum where neither the Federation nor the Provinces exercised effective authority in this matter of vital public importance and finally the Supreme Court had to intervene. 16. The 18th Amendment has restored the original spirit of the Parliamentary system. It has transferred key presidential powers to the Parliament and its elected Prime Minister. The Prime Minister is the Chief Executive. The Executive Authority of the Federation is to be exercised by the Federal Government comprising the Prime Minister and the Federal Ministers in accordance with Rules of Business made by the Federal Government and not by the President as per the Pre-18th Amendment provision. Similar changes have been made at the Provincial level. 17. The role of the Senate has been substantially enhanced. The annual report on implementation of Principles of Policy is to be placed before the Senate also. Unlike the previous position, the President cannot now promulgate an Ordinance while the Senate is in Session. The number of days that the Senate may take to give its recommendations on money bills has been enhanced from seven to fourteen. The Prime Minister and his Cabinet will henceforth be collectively responsible both to the Senate and the National Assembly. Earlier, the responsibility was to the National Assembly only. The number of Senate Members has been increased from one hundred to one hundred and four. The number of compulsory working days for the Senate has been increased from ninety to one hundred and ten. Three new fundamental rights have been added namely the right of free education for all children between 5 to 16 years, the right to fair trial and the right to information in all matters of public importance. 18. Post 18th amendment, it is the 5 person Election Commission, and not the Chief Election Commissioner on his own, which has the power to prepare electoral rolls, to hold elections to fill a casual vacancy, to appoint Election Tribunals, to hold general elections to the National or Provincial Assemblies and of the Local Governments and to appoint staff of the election Commission, etc. And as mandated earlier all executive authorities in the Federation and in the Provinces are to assist the Chief Election Commissioner and the Election Commission in the discharge of their functions. The Election Commission has adequate constitutional and legal powers which are no less than those of the Election Commission in India. It has to flex its muscles and exercise these powers effectively and efficiently. It must take all corrective measures highlighted in the report of the Judicial Inquiry Commission into the conduct of the 2013 General Elections. 19. In Article 27 relating to safeguards against discrimination in services, a proviso has been added that under-representation of any class or area in the service of Pakistan is to be redressed by Act of Parliament. 20. In Articles 62 and 63 relating to qualifications and disqualifications for election to Parliament and Provincial Assemblies, there are some positive, some negative changes. Earlier a person was not qualified if he had been convicted for an offence involving moral turpitude or giving false evidence. This has been removed. On the positive side, time limits for disqualifications viz five years from date of release in case of jail terms, five years from date of dismissal from public service, two years from date of compulsory retirement, have been reintroduced in place of Musharraf-era life-time bans.
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21. Article 140-A relating to devolution of power to local governments has been retained and expanded to provide that elections to local governments shall be held by the Election Commission of Pakistan. 22. The Auditor-General of Pakistan has been given a constitutional four-year term of office. The Auditor-General has also been empowered to audit the accounts of the Federal and Provincial Governments and all their bodies, corporations and authorities. 23. A new High Court has been set up at Islamabad. Its judges shall be drawn from all four Provinces and the Islamabad Capital Territory. 24. The Sixth and Seventh Schedules to the Constitution have been omitted. The repealed Sixth Schedule included thirty-five laws which could only be amended with the prior consent of the President. The repealed Seventh Schedule included eight laws which could only be amended in the manner provided for amendment of the Constitution. 25. The Annexure to the Constitution is the Objectives Resolution passed by the Constituent Assembly in 1949. It has been clarified in said Resolution that minorities have a right to “freely” profess and practice their religion. 26. Musharraf’s take over on 12th October 1999 and all subsequent Proclamations, Orders, etc. have been declared void. However, the Acts, Notifications, etc. during the Musharraf period have been nevertheless validated till set aside by the competent authority. The provisions are similar to what happened after Yahya Khan’s tenure. 27. Pakistan is the Islamic Republic of Pakistan. The preamble of the Constitution and the 1949 Objectives Resolution annexed to the Constitution both reiterate that Pakistan shall be a State where the Muslims shall be enabled to order their lives individually and collectively in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah. Through insertion of Article 2A in the Constitution in 1985, this Objectives Resolution is now a substantive part of the Constitution. The earlier Article 2 prescribes that the Islam shall be the State religion of Pakistan. Chapter 3-A in Part-VII was introduced into the Constitution in 1979-80 to provide for the setting up of a Federal Shariat Court with power to strike down any law or provision of law which was repugnant to the Injunctions of Islam. The Islamic provisions in Part IX of the Constitution declare that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah and no law shall be enacted which is repugnant to such Injunctions. There is a Council of Islamic Ideology to make recommendations to the Parliament and the Provincial Assemblies on ways to enable the Muslims to order their lives in accordance with the principles and concepts of Islam and also to make recommendations for bringing the existing laws into conformity with the Injunctions of Islam. 28. The Supreme Court has held in more than one judgment that the Islamic provisions are one of the salient features of the Constitution. Let there be no doubt on this issue. We are an Islamic state. Our Constitution is not a secular Constitution and nor are we a secular State. 29. The Indo Pak subcontinent has been invaded numerous times and although some of the conquerors were rapidly assimilated into the prevailing culture of this region, the majority established new ruling dynasties with their own individual system of local administration. As
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far back in history as we are able to go we find reasonably sophisticated forms of local self government in keeping with a strong sense of municipal values typically identified with any system that recognizes the needs of the populace. For example well over four millennia ago we had the Indus Valley Civilization exemplified by Harappa and Mohenjo Daro where the urban areas had warehouses, public baths, sewerage, drains and protective walls, in fact a degree of advancement in municipal planning that is absent from some rural centres in the country today. To analyse current needs in a historical perspective is therefore far more complicated than it would be in a country like the USA, say, where historical evolution of local governance would make for a relatively linear and straightforward narrative. 30. The British prescribed Local Governance for the Subcontinent and the part of it that constitutes Pakistan with a set of laws that originated with the Conservancy Act of 1846 which was in response to the outbreak of an epidemic of cholera in Karachi. This developed into the Punjab Municipal Act of 1867. Successive legislation and policy decisions, such as Lord Ripon’s Resolution of 1882 and The Decentralization Commission of 1907, led to an increase in the representative character of the local institutions which culminated in the Government of India Act, 1935 allowing provinces to frame their own Local Government laws. The point worth noting about this era in the evolution of local government is that although steps were taken to make local self-government progressively more autonomous and efficient, the over arching policy of the British stemmed from an imperialistic tendency to safeguard central control over the Dominion while allowing limited freedom of self rule to preserve public harmony. This tendency to have a strong controlling authority was, therefore, very much a part of the relevant legislation which was inherited by Pakistan at the time of Independence. 31. Broadly speaking Local Government has a political significance, an administrative significance, a legal significance and an electoral significance. From the political perspective local governments function as political ‘nurseries’ and help strengthen democratic institutions at the grass roots level. The ideal political construct would involve aspiring politicians stepping into the arena at a local level where in addition to the experience of an elected house they are responsible for the execution of a majority of all service delivery and development functions which are devolved upon them. If the local government positions are used as a spring board to gain an entry into higher level legislative assemblies then the prior experience will give rise to provincial and national legislatures with greater skills and experience with ability to enact laws which are more practical and need-oriented. This can happen only where local government politicians have autonomy to undertake such functions devolved to the local governments and also when they are associated with and linked to a political party. Party recruitment at the local level provides politicians with a career path within the party executive in addition to that in public office. This can in some measure strengthen democracy intra party as well as ensure loyalty to party principles not based on personal linkages or political patronage. It has been observed in countries where devolved governance systems have been in place for a considerable time that political career progression is not unidirectional from local to national. There are several instances where national level politicians aspire to hold local office to be able to tap the financial and logistical resources available locally, as well as to build an electoral and good will safety net. 32. In regard to the legal significance, Article 32 of the Constitution provides and I quote “Promotion of Local Government Institutions: The State shall encourage Local Government Institutions composed of elected representatives of the areas concerned and in such institutions special representation shall be given to peasants, workers and women.” Since 1973 local government laws have been enacted in terms of Article 32 ibid. These include People’s Local
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Government Ordinance, 1975. However, no elections were held under this law which was replaced by the Local Government Ordinance, 1979 of General Zia-Ul-Haq and finally the Local Government Ordinances 2001 in the General Musharraf era. Both the military rulers ensured that all the provinces had a uniform law, with only very minor differences in certain areas. In enforcing this uniformity, consultation with the provinces remained minimal. The 18th amendment, by implementation of which the Federal Ministry of Local Government and Rural Development, has been abolished, has removed the protection that was given to the local government laws of the Musharraf era. Article-140 A of the Constitution has, as a result, finally come into its own. This Article reads and I quote: “140-A. Local Government: Each Province shall, by law, establish a Local Government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments.” Article 140-A makes it mandatory upon the provinces to make their own laws. The intention is that each province is to have its own system of local government peculiar to its own requirements. 33. The devolution of financial authority to the Local Governments means three things: autonomy in utilization of the allocated funds transferred through the provincial finance commission regardless of the political affiliations that the concerned local government may have ; an equitable award mechanism for the Provincial Finance Commissions in the same spirit as that under which the Provinces receive their share from the National Finance Commission ( a matter of do unto others as you would have done unto you); and the gradual transfer of responsibility in the collection of taxes and generation of own sources of revenue in keeping with the parallel transfer taking place from the Centre to the Provinces. 34. In my view the parameters to keep in mind in devising the structure of Local Governments are as follows: (1) Article 140-A of the Constitution– this is the supreme law of the land. (2) The Commonwealth Principles as stated in the Aberdeen Report. These principles comprise the shared values of the Commonwealth nations. (3) The Maastricht principle of subsidiary namely devolve power to the lowest effective level. 35. The Provinces have been slow in giving effect to Article 140-A. The Provincial Governments and the elected members of the Provincial Assemblies have been reluctant to transfer powers with related perks to the elected councilors of local governments. Without the continuing pressure of the Supreme Court we may not have seen the elections that have finally been completed in all 4 Provinces, the Cantonment Areas and the Islamabad Capital Territory. Transfer of powers to the elected local governments has still not seen the light of day. It is to be hoped that this process will be finally completed within this year. 36. I have been asked to say a word or two about the quota system. Articles 4 and 25 of the Constitution contain the fundamental rights of equality before law, rights of the individual to be treated in accordance with law and the entitlement of all citizens to equal protection of law. These rights are reinforced by Article 27 of the Constitution which safeguards against any discrimination in appointments to the various services of Pakistan on the ground of race, religion, caste, sex, residence or place of birth. However, the same Article prescribed that for a period not exceeding forty years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan. Article 27 provides further that under-representation of any area may be redressed through Act of Parliament and that specified posts or services may be reserved for members of either sex if
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such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex. Still further Article 27 provides that a Provincial Government, or any local or other authority in a Province, may prescribe, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority. 37. The forty year period expired in 2013. I am reliably informed that a constitutional amendment is being prepared to extend the forty years by another twenty years. 38. Article 251 prescribes that Urdu shall be the national language of Pakistan and that arrangements shall be made for it being used for official and other purposes within the fifteen years from the commencing it in 1973. It also prescribes that the English language may be used for official purposes until arrangements are made for its replacement by Urdu. Article 251 further prescribes that a Provincial Assembly may by law prescribe the measures for the teaching, promotion and use of a provincial language in addition to the national language. Article 28 states that subject to Article 251 any section of citizens having a distinct language, script or culture, shall have the right to preserving and promoting the same. All these matters were considered in a recent judgment of the Supreme Court reported at PLD 2015 SC 1210 in which the Federal and Provincial Governments were directed to implement the provisions of Article 251 without unnecessary delay. Some movement is there for implementation of this judgment but it will be sometime before Article 251 is fully implemented.
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