Overview of Article 268 of the Constitution of Pakistan
The Constitution of Pakistan, enacted in 1973, serves as the supreme law of the land, defining the fundamental rights, principles, and structure of governance. Among its numerous articles, Article 268 holds particular significance, outlining the principles governing the continuance and adaptation of existing laws.
Article 268 States
268. Continuance in force, and adaptation of certain laws
- Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.
- For the purpose of bringing the provisions of any existing law into accord with the provisions of the Constitution (other than Part II of the Constitution), the President may by Order, within a period of two years from the commencing day, make such adaptation, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any such Order may be made so as to have effect from such day, not being a day earlier than the commencing day, as may be specified in the Order.
- The President may authorize the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (3) in respect of laws relating to matters with respect to which the Provincial Assembly has power to make laws.
- The powers exercisable under clauses (3) and (4) shall be subject to the provisions of an Act of the appropriate Legislature.
- Any court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an Order made under clause (3) or clause (4), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution.
- In this Article, “existing laws” means all laws (including Ordinances, Orders-in-Council, Orders, rules, by-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extraterritorial validity, immediately before the commencing day.
Explanation:– In this Article, “in force”, in relation to any law, means having effect as law whether or not the law has been brought into operation.
Key Points of Article 268 of the Constitution of Pakistan
- Continuance of Existing Laws: Article 268 emphasizes the continued relevance of existing laws unless specifically addressed by the Constitution. This provision offers a transitional phase, allowing for the seamless operation of laws predating the Constitution.
- Adaptation of Laws: The Constitution grants the President the authority to adapt existing laws to align with constitutional provisions, excluding Part II. This includes modifications, additions, or omissions deemed necessary or expedient. The timeframe for such adaptations is limited to two years from the commencing day.
- Delegation of Power: Article 268 extends the power to adapt laws to provincial governance by allowing the President to authorize Governors to exercise such powers within their respective provinces. This decentralization aims to address regional nuances and specific needs.
- Legislative Oversight: The powers vested in the President and Governors for adapting laws are not absolute. Legislative oversight is ensured through the provision that these powers are subject to the provisions of an Act of the appropriate Legislature. This safeguards against misuse and ensures democratic checks and balances.
- Judicial Interpretation: Even in the absence of specific adaptations, courts, tribunals, and authorities are mandated to interpret existing laws with all necessary adaptations. This judicial approach ensures the harmonization of laws with the constitutional framework, promoting legal coherence.
- Definition of “Existing Laws”: Article 268 elucidates the term “existing laws,” encompassing a wide array of legal instruments, from Ordinances to Orders-in-Council, rules, by-laws, regulations, Letters Patent constituting a High Court, notifications, and other legal instruments having the force of law.
- Explanation of “In Force”: The article concludes with an explanation that “in force” in relation to any law means having effect as law, regardless of whether the law has been brought into operation.
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Crux of Article 268 of the Constitution of Pakistan
In essence, Article 268 serves as a bridge between pre-constitutional legal frameworks and the evolving constitutional landscape of Pakistan. It balances the need for continuity and stability with the imperative to adapt laws to align with the principles enshrined in the Constitution of 1973. The adaptability granted to the President and Governors ensures a dynamic legal system capable of responding to changing needs while the legislative oversight and judicial interpretation provide essential checks on the exercise of such powers.
Conclusion: Article 268 of the Constitution of Pakistan
Article 268 emerges as a crucial element in the constitutional framework of Pakistan, orchestrating the coexistence of old and new legal norms. Its provisions highlight the careful balance struck between continuity and adaptation, ensuring the relevance and applicability of laws within the evolving constitutional paradigm. As Pakistan progresses, Article 268 remains a cornerstone, shaping the legal landscape and fostering a harmonious coexistence between the past and the present.
By delving into the complexities of Article 268, individuals can develop a greater understanding of the meticulous approach adopted by the creators of the Constitution of Pakistan 1973. This significant provision not only showcases their legal foresight, but also highlights their dedication to establishing a legal framework that is adaptable and receptive to the evolving requirements of the society it governs.
