Wednesday, 29 August 2018

Constitutional Development of Pakistan from 1947 to Onward

Constitutional Development of Pakistan from 1947 to Onward

Independence Act 1947. Under the Indian Independent Act of 1947. India and Pakistan were given dominion status; and two separate Governor Generals appointed by the British Crown. This Act delegated the supreme law¬making powers to the respective legislatures of each state in addition to the task of framing their Constitutions. As the governmental responsibilities of the British Crown towards these Dominions, ceased to exist, the office of the Secretary of State for India was also abolished. According to the provisions of the Act of Independence, 1935 Act of India was to work as Interim Constitution for both the Dominions till the time they frame their own Constitutions. Both the legislative Assemblies, however, were authorized to make necessary alterations and adjustments in this Act. Independence Act became operative when it got Royal Assent on 18th July 1947; consequently British sovereignty over both the Dominions came to an end on 15th August 1947.

Interim Constitution. 

Under Article 8 of the Independence Act, 1935 Act of India was adopted as the Interim Constitution of Pakistan. Certain features of this Act later bore deep imprints on the perceptions regarding constitution-making in Pakistan. Hence, the issues such as federal structure and the. Pattern of Division of Powers, role of the chief executive and method of voting etc; were tackled in the light of this Act. Certain important features of the Interim Constitution, which had a bearing on the constitutional development, are the following:

Federal Structure

Pakistan inherited a federal structure from its British political legacy, in which provinces were given autonomy. It needs to be recollected that provincial autonomy was the outcome of constitutional development spreading over decades during the British rule in India. Hence, the provinces were given autonomy in respect of administrative, fiscal and legislative matters and ensured safeguards against undue intervention on the part of central government. Under the new Act, the powers were demarcated in three lists. One list dealt with central subjects, the other with provincial subjects and the third one dealt with concurrent affairs; while residuary powers belonged to the Governor General. It had been a longstanding demand of the Congress to allocate residuary powers to the central government while Muslim League, on the other hand, wanted to assign it to the provincial governments. The underlying purpose regarding the allocation of governmental authority into three lists was to minimize the residuary affairs. Governor General was fully empowered to delegate legislative powers, on the affairs not-prescribed in any list, (residuary affairs) to any provincial Assembly.

Powers of Governor General

During the early period of the British rule in India, Governor General enjoyed unlimited authority. Under 1935 Act of India, the office of Governor General remained most powerful as he had full control over the governmental apparatus. The powers of Governor General were prescribed under an interim order of 1947, according to which all those powers of Governor General which he enjoyed under the titles 'Discretion' and 'Individual Judgment' under 1935 Act of India, were repealed. Quaid-e-Azam, as the first Governor General, however, exercised enormous powers by virtue of his unique position as the Founding Father. With the assumption of this office by Kh. Nazim-ud-Din, Governor General became a constitutional head while actual powers belonged to the Prime Minister.

Under the Interim Constitution, Governor General was regarded as the representative of the British Crown and accountable to it. As head of the government, he appointed superior officials and was also the supreme commander. of the armed forces. He had effective say in the legislative affairs but was supposed to act on the advice of the ministers as the system of government was parliamentary one. Prime Minister and all other ministers were appointed by the Governor General and served at his pleasure. According to the Interim Constitution, ministers would remain in office so long as they enjoyed the confidence of Governor General otherwise they had to quit their offices. Governor General was empowered to summon, and prorogue the sessions of federal legislature and could also dissolve it. It needs to be recollected that in United Kingdom, constitutionally all these powers belong to the Queen but, in practice, are exercised by the representatives of the people.

Method of Election

Under 1935 Act of India, separate electorate was adopted as it was kept intact under the Interim Constitution. Accordingly, separate electoral districts were formed for Muslims and Hindus in undivided India. But after the creation of Pakistan, Hindu minority of East Pakistan opposed separate electorate and this issue was much debated in the First Constituent Assembly of Pakistan.

First Constituent Assembly

The First Constituent Assembly elected Quaid-e-Azam unanimously as its first President on 11th August 1947. After the death of Quaid-e-Azam, Maulana Tameez ud din became the President of the Assembly. Under Independence Act, the Constituent Assembly had to perform two important functions. It was entrusted with the task of framing the new Constitution and secondly, it had to enact laws as federal legislature. Hence, the Constituent Assembly, was entrusted with legislative powers. The total strength of the Assembly was 69 which was later raised to 79, and later some new seats were created, allocated to Bahawalpur, Baluchistan and Tribal areas. Only two political parties, Muslim League and Congress, were conspicuous by their presence in the Assembly. Total members of Muslim League numbered 59 while the opposition was very slim. There, existed, however, different factions within the ranks of Muslim League.

Objectives Resolution 

The popular demand for the implementation of Islamic way of life, got momentum immediately after the inception of Pakistan. As this country; came into existence in the name of Islam, there was no way out for the Constituent Assembly except to make announcement to this effect. The Objectives Resolution was moved in the Assembly by Liaqat Ali. Khan, n, the Prime Minister, in March 1949, specifying the objectives and important features of the future Constitution of Pakistan.

In the Resolution, it was laid down; 'Whereas sovereignty over the entire Universe belongs to God Almighty alone, the authority which He has delegated to the state of Pakistan through its people for being exercised within the limits prescribed by Him.' It was also laid down that the people would be encouraged to order their lives in accordance with the teachings of Islam.

Pakistan was to be a federal state in which autonomy would secured to the provinces. It was also reaffirmed to protect fundamental rights, enforce justice and fair play and protect the rights of religious minorities. The Resolution also made it an obligation to secure the independence of judiciary. Hence Objectives Resolution provided categorically ideological foundations to the future constitution-making. This Resolution was approved by the Assembly on 12th March 1949.

Formation of Committees

After the approval of objective resolution, the constituent assembly formed different committees for making recommendations necessary to constitution-making. Basic Principle Committee was the most important of these. The function of this committee was to prepare a draft of the Constitution in the light of the Objectives Resolution. The total number of members to this committee was 24. This committee formed its three sub-committees, i.e., (a) Sub-Committee on Federal and Provincial Constitutions and distribution of powers (b) Sub. Committee on Franchise (c) Sub-Committee on judiciary. It also set-up a special Committee named 'Talimat-i-lslamia', comprising reputed scholars. They had to advise the Basic Principles Committee regarding matters of ideological nature. All the committees had facility to utilise the services and advice of experts and technocrats. The committees enjoyed certain other privileges as well to get first hand knowledge for the purpose of inquiry and to visit different places. Basic Principles Committee submitted its Interim Report in September 1950 and Final Report in December 1952.

First Report 

The Interim Report of the Basic Principles Committee of the Constituent Assembly was submitted on 28th of September 1950. Some of the important recommendations are as follows: The Central Assembly shall consist of two houses, both elected for five years term. The upper house shall represent the provinces on parity basis while the lower chamber shall be a popular one. Both the Houses of the Parliament shall share equal powers and elect President for five years term, in a joint session. The third term for President _was disallowed. The President could be removed by the Central Assembly by a two-thirds majority.

According to these recommendations of Basic Principles Committee, the system of government was to be parliamentary in which Cabinet was to be accountable to the Parliament. Similarly, the provincial governmental structure was also to be organised on this pattern. The governors who were to be appointed by the President and accountable to him, were to be the repository of administrative authority in their respective provinces. The Provincial Assembly was to elect the ministers and form the Cabinet under the leadership of the Chief Minister. All the ministers were to be accountable to the Provincial Assembly, which was to be unicameral.

According, to the Interim Report submitted by the Basic Principles Committee, the residuary powers within federal structure, were to be given to the provinces whereas the federal court had to perform the function of interpreting the Constitution. The method of amendment of the Constitution was a bit cumbersome, making it rigid.

Reaction

The Interim Report submitted by Basic Principles Committee was not complete hence it could not highlight all aspects relating to future constitution-making. This Report was severely criticised by different schools of thought. Pro-Islamic elements became hostile as it contained very little about islamisation of the system. The members of the Constituent Assembly from East Pakistan got annoyed as they thought that the Report undermined the proper representation of East Wing. They remarked that the Report had endeavored to convert East Pakistan majority into a permanent minority.

The total population of East Pakistan was slightly large than that of the West Pakistan. According to the recommendations contained in this Report, the upper chamber of the Parliament was to be constituted on the principle by virtue of which West Pakistan would get lion's share in representation. The proposal to make Urdu as official language, as contained in the Report, was also condemned in the political circles of East Pakistan. Consequently, the Report as a whole was disliked and condemned by all quarters. Perceiving the general tone of public opinion, Prime Minister Liaqat Ali Khan postponed the discussion on the Report till the next session of the Assembly and invited the proposals from the people. The Basic Principles Committee set-up a sub-committee to examine and scrutinize the proposals submitted by the people. This sub-committee submitted its Report to the Basic Principles Committee in July 1952, Before the completion of work on the Second Report of the Basic Principles Committee, Liaqat All Khan, the Prime Minister, was shot dead in October 1951 in a public meeting and Khawaja Nazim-ud-Din became the new Prime Minister. Hence it became the responsibility of the now Prime Minister to prepare the new report. It needs to be pointed it out that a provincial Convention was held in East Pakistan to prepare substitute proposals in this context. By that time, the constitutional issues had become the subject of common debate especially in East Pakistan which had warned the political atmosphere.

Second Report

Khawaja Nazim-ud-Din, the new Prime Minister, submitted Second Report of Basic Principles Committee in the Constituent Assembly on 22nd December, 1,52. Some important recommendations of this report are as follows:
The Federal Assembly was to consist of two chambers in which the upper chamber, which represented all the provinces would comprise one hundred and twenty members. Sixty seats were to be reserved for East Wing While equal number would go to the West Th seats allocated to West Pakistan were to be further divided into all the four provinces. The lower House would consist of four hundred, members of which parity of representation was to be secured to each wing of the country in half to half ratio. The lower chamber, according to the Recommendations, was to be more powerful as the central cabinet was accountable to it. The President of the Republic, according to the formula, shall be elected for a period of five years by both the Houses of the Parliament. The President was supposed to be a Muslim, according to the constitutional requirement.

Reaction

This Report was detested by the politicians of Punjab, as the basis of representation for the formation of upper chamber, was not acceptable to them. According to the Recommendations of the Basic Principles Committee, East Pakistan got upper hand over all the provinces of West Pakistan. The basis of representation for the formation of upper chamber was regarded against the established principle of federation, according to which parity of representation is secured to all the federating units. East Pakistan was one unit while West Wing divided into four provinces. Consequently, one province, viz., East Pakistan was to get representation equal to the aggregate representation, of all the provinces of West Pakistan. Hence East Pakistan was secured monopoly in representation. The politicians of Punjab demanded that the lower chamber should be constituted on population basis while in the upper chamber parity in representation be secured to all the provinces.
In the meanwhile destabilizing forces became active and fully exploited regionalism and provincialism. Muslim League was the only party which had country-wide following and could act as an integrative force. But it was divided into different factions and was loosing its popular following rapidly, especially in East Pakistan. Consequently, the Second Report also met the same fate as had happened in case of the Interim Report; and the discussion of this Report in the Assembly was postponed for indefinite period. On 16th of April, 1953, Governor General, Ghulam Muhammad dismissed the Cabinet of Khawaja Nazim-ud-Din and Muhammad All Bogra, who was at that time Pakistan's ambassador in America, was designated as the.new Prime Minister. Hence the responsibility of constitution-making laid on Muhammad Ali Bogra.

Muhammad All Formula

The issue of representation had complicated the process of constitution-making for the last many years. In order to break the deadlock, Muhammad Ali presented a formula according to which a workable solution was presented. This formula was welcomed as it paved the way for constitution-making. Representatives from Punjab and Bengal accepted it out of expediency and for the sake of compromise. According to this formula, the Central Legislative Assembly was to be bicameral with both houses sharing equal powers. The formula suggested the total strength of the Upper House as fifty out of which 10 seats were to be allocated to Punjab and ten to East Pakistan. The remaining 30 .,eats were to be distributed among three equal regions of West Pakistan. The lower House, according to this Plan was to consist of three hundred members while both wings of the country were to be secured parity in representation. To judge the validity of the laws enacted by the central legislative assembly in the light of Shariah, was to be the function of the Supreme Court, instead of a Board of Ulema.

The Constituent Assembly approved the Basic Principles Committee Report with minor modifications on 21 September 1954. Hence the draft Constitution was finally approved and the Assembly completed its long-standing task. To the surprise of every one, the Governor General dissolved the Assembly on 24th October, 1954.

Action of the Governor General

 There developed serious disruption within the ranks of Muslim League during constitution-making in the first Constituent Assembly of Pakistan. There was acute polarization especially between members of the Assembly belonging to Punjab and Bengal. This friction within the ranks of the ruling party bore destabilizing effects on the working of the political system. Taking the undue advantage of this situation, the Governor General, Ghulam Muhammad, dissolved the Assembly. In support of this extreme step he took the plea that the Constituent Assembly could not give a Constitution, which was its primary function, despite the passage of a long time. He also pointed out that the conditions had undergone complete change from the one when they were elected, i.e., it implied that the Assembly had lost its representative character. As a matter of fact, the draft Constitution had been fully compiled and approved by the Assembly. Prime Minister, Muhammad Ali Bogra had also announced 25th December 1954, as the date fixed for its implementation. The Governor General, dissolved the Assembly due to certain ulterior motives and thereby struck a fatal blow to the democratic process. The nation had to pay heavily as an aftermath of this step.

Another incident which occurred in East Pakistan also indirectly gave an excuse in the hands of Governor General for resorting to the use of this Power. Muslim League had to face crushing defeat at the hands of Joint apposition Front in the provincial elections of East Pakistan in 1954 and thereby it lost its representative character. The landslide victory of the Joint Front also justified the action of Governor General. The newly elected Provincial  Assembly also demanded the resignation of the members of the Muslim League in the Constituent Assembly belonging to East Wing. The Governor General by that time had already developed hostility against the Assembly. Consequently, he dissolved the Constituent Assembly on 24th October, 1954 and asked Muhammad Ali Bogra to form the new Cabinet, a task which he accomplished for the second time.

The New Cabinet

 The inclusion of two persons in the new Cabinet is noteworthy, i.e., Major General Sikandar Mirza who had already acted as Governor of East Pakistan and Ayub Khan, who was appointed as Defence Minister. Inclusion of Generals in the Cabinet, was an incident which initiated a new phase in the political history of the country reflecting intervention of military in politics. The new Cabinet also included Dr. Khan Sahib, an old' Congress man. The new Cabinet was accountable to the Governor General, Sikandar Mirza, who was a prominent Minister in the Cabinet, announced in a press conference, that the people of Pakistan lacked the capabilities necessary to run democratic institutions and therefore, 'Controlled Democracy', he argued, would be introduced in Pakistan.

Constitutional Dispute

 Maulana Tameez-ud-Din, the former Speaker of the defunct Constituent Assembly, challenged both the steps of the Governor General, viz., dissolution of the Assembly and formation of the new Cabinet, in Sindh Chief Court. Full Bench of the Court decided the case in favour of Maulana Tameez-ud-Din and gave the ruling that Governor General had no constitutional power to dissolve the Assembly. The government took the case on appeal to the Federal Court, against the decision of Sindh Chief Court. The Federal Court declared the step of Governor General valid and reviewed the decision of the Sindh Court,

Constitutional Crisis

 As an implication of the Federal Court's decision, all such laws operative since 1948 on the statute book became unconstitutional as those were implemented without the authorization of Governor General, Hence almost six laws on statute book became invalid, pushing the country into a constitutional crisis. Six days after the judgment of the Federal Court, the Governor General gave a legal cover to these law by, promulgating Ordinance No.9 resorting to his emergency powers and thereby all the affected laws were given legal protection.

Second Constituent Assembly

The Federal Court had already pointed it out in its judgment that the Constitution could not be promulgated through an executive decree as it was the function of the Constituent Assembly. Governor General, Ghulam Muhammad, summoned on 10th May 1955, a Constitutional Convention consisting of sixty persons. Later, its total strength was raised to eighty. All its members were to be elected by the respective Provincial Assemblies. The Convention was vested with the task of completing the task of constitution-making on the one hand and to function as Federal Legislative. Assembly, on the other. Both East and West Pakistan were given equal representation in this Convention The Federal Court also endorsed the step of Governor General as legal but proposed to change the name of Convention into Constituent Assembly
.
The Provincial Assemblies elected the members to the Constituent Assembly. As Muslim League had suffered a crushing defeat in the Provincial Assembly elections of East Pakistan at the hands of opposition Joint Front, only 10 out of a total of 309 members belonged to Muslim League. Consequently, only one member of Muslim League could be returned from East Wing to the Central Assembly. Nevertheless, Muslim League got many seats from West Pakistan but it could not command a clear-cut majority in the Constituent Assembly, though it was comparatively the biggest party. In a House comprising 80 members, 25 belonged to Muslim League. It formed a coalition government in collaboration with the United Front, under the leadership of Ch. Muhammad Ali. The major task before the Second Constituent Assembly was to get the laws reinforced which had become invalid due to Federal Court's decision and given legal cover through the promulgation of an Ordinance by the Governor General. The Constituent Assembly accomplished this task.

West Pakistan as One Unit

An important achievement of the Second Constituent Assembly was the formation of West Pakistan into one administrative unit. The governmental structure of West Pakistan, before the creation of ONE UNIT, consisted of three provinces under Governors, one province under Chief Commissioner, few states and the tribal areas. All these federating units had ethnic and cultural diversities despite their geographical contiguity. The presence of different provinces in West Pakistan had complicated the issue of representation of West Pakistan in the Constituent Assembly. The Federal Assembly enacted a law on 30th September 1955; making West Pakistan into One Unit, thereby solving the problem of representation in the Constituent Assembly.

It needs to be noted, that the Prime Minister had already announced the formation of One Unit on 22nd November, 1954. As a result, a Council was formed for the administration of West Pakistan, under the orders of Governor General. The Governor General, under emergency provisions of the Constitution, announced the formation of West Pakistan into ONE UNIT and a, Is° appointed its Chief Minister a task which was to be done by the provincial legislature. The settlement of such a sensitive political issue through the Promulgation of an ordinance, was an action which could not be justified in any Way. But the new experiment proved failure and reactionary forces joined hands to avert the situation. Consequently, West Pakistan Assembly voted

Formulation of New Constitution

 The major task before the Second Constituent Assembly was to formulate the Constitution which was accomplished successfully. The Assembly got full utilization of the work done by the previous Assembly in this context. The Assembly considered and examined the Reports of the previous committees. As a matter of fact, the first Assembly had almost completed the task of constitution-making by the time it was dissolved. The new draft Constitution was presented in the Second' Constituent Assembly on 9th January 1956, which was approved with certain amendments on 29th January 1956. The Governor General gave his assent on 2nd March and the new Constitution was enforced on 23rd March, 1956, accordingly, Pakistan was transformed into an Islamic Republic.

Causes of Delay in Constitution-Making

An important problem facing the country after its creation was the formation of a Constitution which could meet the ideological, social and political requirements of a modern polity. Certain inherent problems of diverse nature were partly responsible for causing delay in the constitution-making, but there were also certain deliberate efforts to make the problems more acute. It was a pre-decided matter that Pakistan would be an Islamic polity, but this issue was also made more and more complex by giving multi-type of interpretations to Islamic injunctions. Undoubtedly, there was lack of unanimity in the view-points of religious sects as well. Whereas an over whelming majority of the ruling elite was secular in thinking, hence hostile to Islamic ideology.

Another main problem in this context was to maintain a suitable balance between centralism and provincial autonomy. There existed sharp polarization, as explained earlier, on this issue. Differences also existed on the issue regarding the structure of government. The problem of proper representation of the provinces in the federal union proved more tedious in the constitution-making. Consensus could not be developed on such basic issues as national language, method of election etc. Had there been sincere efforts ' on the part of politicians to solve all these problems, the task of constitution-making might have been accomplished much earlier. But the negative attitude of disgruntled politicians and that of the vested interests continued to create hurdles in this connection. The autocratic designs of some rulers also stood in the way of bringing normalcy to political scenario.

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