PRESTON UNIVERSITY MSC INTERNATIONAL RELATIONS

CONSTITUTIONAL HISTORY OF PAKISTAN. Debates within the Constituent Assembly

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 Debates within the Constituent Assembly After Jinnahs death, the crucial issue to be decided was whether the Governor-General should be the constitutional head of state with the Prime Minster and his Cabinet exercising real executive power or otherwise. At that time, Liaquat wielded real power. He chose to remain prime minister which meant that the Cabinet form of government was to become effective. Khawaja Nazimuddin, who became the second Governor-General, appeared to be willing to assume the customary privileges of the office without Jinnahs real power. This harmony continued until the death of Liaquat on 16 October, 1951. Immediately following Jinnahs death, there developed a fierce competition for influence, wealth, power and prestige between the various political interests and personalities.

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 Basic Principles Committee and its Interm Report-1950 After the passing of the Objectives Resolution in 1949, the Constituent Assembly set up a number of committees and sub-committees to work out the details of the Constitution on the principles as laid down in the Objectives Resolution. Sub-committee on federal and provincial constitutions and distribution of powers. Sub-Committee on franchise; and Sub-Committee for judiciary.
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Basic Principles Committee and its Interm Report-1950 After the passing of the Objective Resolution in 1949, the Constituent Assembly set up a number of committees and sub-committees to work out the details of the Constitution on the principles as laid down in the Objectives Resolution.
1. Sub-committee on federal and provincial constitutions and distribution of powers. Sub-Committee on franchise; Sub-Committee for judiciary.

2. 3.

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Basic Principles Committees Report-1950

The first draft Constitution, as prepared by the Basic Principles Committee, was presented to the Nation by Liaquat Ali Khan in 1950. Its salient features were: The Objectives Resolution was to be incorporated in the Constitution as a directive principles of state policy. There was to be a head of sate, to be elected for five years by a joint session of both the houses of central legislature. The Head of the state was to appoint as Prime Minister a member of the central legislature.
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Basic committees Report-1950

The central legislature was to consist of two houses: The house of units representing the legislatures of the units; The house of the people elected by the people. The power to convene a joint session was to be vested in the head of the state and to be exercised in the following cases: Conflict between the houses of the legislature; Election and removal of the Head of the State; Consideration of the budget and other money Bills; and Consideration of a motion of no- confidence in the Cabinet.

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Basic Committees Report-1950

Head of the province for each province to be appointed by the head of the state. The head of the province was to appoint as Chief Minister, a member who commands majority in the provincial legislature. There was to be one house of legislature in each province elected by the people for a period of five years. It could be dissolved on the advice of the Chief Minister. The head of the state and the heads of the provinces were given powers to promulgate ordinances during the period when the legislature concerned was not in session. Urdu was to be the national language of the state.
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Evaluation of Report-1950
The reaction to the first draft Constitution was most unfavourable in East Pakistan. The Quantum of representation in the proposed central legislature was the main point of criticism. All the units were given an the same number of seats in the upper houses.

East Pakistanis also did not favour the idea of Urdu being the only state language.
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 Report of the Committee -1950 on Fundamental Rights and Matters Relating to Minorities. The committee on the fundamental rights of citizens submitted its report before the Constituent Assembly which was accepted in 1950.

Constitution-makers guaranteed certain fundamental rights to the citizens- Both Muslims and non-Muslims in Pakistan. The fundamental rights included the following important provisions: equality of all citizens before the law; equal protection of law to all citizens; no discrimination on grounds of religion, race, caste, sex, or place of birth with regard to access to replaces of public entertainment, recreation, welfare, or utility. Every qualified citizen would be eligible for induction in the services of the state irrespective of religion, race, caste, sex, descent or place of birth.
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Fundamental Rights and Matters Relating to Minorities.

No person would be compelled to pay any special taxes the proceeds of which would be specifically appropriated for the propagation of any religion other than his. They should be protected from the threat of physical persecution. Religious minorities must possess freedom of conscience in its widest sense. Minorities which differ from the majority in language and culture should have the right to run their own schools. Guarantees in addition to Fundamental Rights: No discrimination in granting aid to educational institutions. Any minority residing in the territory of residing in the territory of Pakistan or any part thereof having a distinct language, script, or culture of its own should not be prevented from preserving the same. There shall be a Minister for Minority Affairs both at the centre and in the provinces to look after.

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Assassination of Liaquat Ali Khan, October 1951

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Report of the Basic Principles Committee, 1952.

Report of the Basic Principles Committee, July,1952. The Report was presented, as the second draft of the proposed constitution, to the Constituent Assembly by the then Prime Minister Nazimuddin on 22 December, 1952. Salient Features of the Report:

1.The Objectives Resolution was adopted as a Preamble to the proposed Constitution. 2.The head of the state was required to be a Muslim and to be elected for a term of five years at a joint sitting of both the houses of the federal legislature. The head of state could not hold office consecutively for more than two full terms. 3.The Prime Minister was to be appointed by the head of the state. The Council of Muslims was to be collectively responsible to the House of the People only. 4.The House of Units was to consist of 120 members. The house of the people was to consist of 400 members, of whom 200 were to be directly elected from East Bengal, and 200 from West Pakistan.

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Report BPC-1952, cont

5. Seats were to be allocated to communities in the in the House of the People.

6. For each of the provinces, states, capital of federation and tribal area, the word unit was used. 7.The Chief Minister of each unit was to be appointed by the head of the unit and other Ministers were to be appointed on the advice of the Chief Minister. 8. For each unit, there was to be a unicameral legislature composed of members chosen by direct election. 9.The head of the state was to have the power to promulgate ordinances during the period when the federal legislature was not sitting.

10.The authority to dissolve the House of the People was vested in the head of the state, normally to be exercised on the advice of the council of ministers.

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Report BPC1952,s cont.

11.The judiciary was to be headed by the Supreme Court of Pakistan consisting of a Chief Justice and two to six other judges. The Chief Justice was to be appointed by the head of the state after taking into consideration the recommendations made by the Chief Justice. The decisions of the Supreme Court were to be final and binding on all authorities, executive and judicial, which were required to act in its aid. 12. There was to be a High Court for each of the units of East Bengal, the Punjab, Sindh and the NWFP. Every judge of a High Court was to be appointed by the head of the state on the recommendations of the Chief Justice of the Supreme Court, who in the case of appointment of a judge, other than Chief Justice of the High Court was required to consult the Chief Justice of the High Court concerned before making his recommendations. There were also provisions for acting Chief Justice and Additional Judges. High Courts were to be conferred with powers to issue writs in the nature of habeas corpus, mandamus, prohibition, quo waranto and certiorari. 13. There were guarantees to be provided to the civil servants of the federation and units against dismissal or removal. 14. Directive Principles of State Policy were to be made part of the Constitution.

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Evaluation BPC Report-1952

The second draft was more exhaustive as compared to the first one. The draft brought the principle of parity between East and West Pakistan as most important contribution towards solving the problem of representation and it claimed to bring about a constitutional balance of power as well as of responsibilities between the two wings of Pakistan. The House of the people was to enjoy the real authority. The house of the units could only recommend revision of hasty legislation. All Money bills had to originate in the House of the people. An analysis of the second draft and the main objections to it reveal that while some of the objections, as in the case of the first draft, were inspired by a deliberate intention to create a constitutional deadlock, there were obvious defects in the new proposals. They may be summarized as follows:

The reaction in the Punjab was extremely unfavourable. Critics saw no logic in treating a single unit, East Bengal, of equal importance with all other units put together and regarded it as a violation of the federal principle under which all the units, large or small, should get equal representation in the Upper House, as is the case in the United States and some other federations.
The critics seemed to overlook the fact that East Pakistan had a larger population than the total of nine units of West Pakistan put together. The composition and lesser powers of the Upper House were also attacked. The Punjab leaders demanded representation in the Lower House to be on the basis of population and in the Upper House to be on the basis of equality of the units, and for the two houses to have equal powers. The opposition to the second report in the Punjab forced the Constituent Assembly to postpone its deliberations for an indefinite period.

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Evaluation BPC Report-1952

An analysis of the second draft and the main objections to it reveal that while some of the objections, as in the case of the first draft, were inspired by a deliberate intention to create a constitutional deadlock, there were obvious defects in the new proposals. They may be summarized as follows:
The draft did not acknowledge in a democratic way the fact that East Bengal had a majority of the total population of the country. It did not pay due respect to the fact that West Pakistan had the major part of the countrys territory. By giving to the Upper House a composition identical to that of the Lower House, it made the former a weak replica of the House of the People and reduced its utility.

The lack of a constitutional provision in case the two Houses were unable to resolve a conflict in Joint session.
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Anti-Ahmediya Movement
, Martial Law, and Dismissal of Nazimuddins Government The Punjab soon faced serious food shortages, partly created by landlords who had turned hostile due to the modest reforms made by the Daultana government in favour of agricultural tenants. The Ahmedis (whom their opponents also refer to as Mirzais or Qadianis) were a close-knit community. The anti-Ahmediya agitation and food shortages caused serious difficulties for Nazimuddin government. In early March, 1953. Nazimuddin considered appealing to the British Government to recall the Governor-General. He could allege with justification that Ghulam Muhammad was physically incapacitated. Nazimuddin still enjoyed the confidence of the Constituent Assembly and could defeat his opposition in the Assembly. On 17 April 1953 he was summoned by Ghulam Muhammad. He tried appealing to Buckingham Palace only to discover that overseas telegraphic service had been deliberately put out of operation.

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The Munir Report, 1954.

Court of Inquiry to investigate the causes of disturbances. It was to be a public inquiry and Justice Muhammad Munir, Chief Justice of the Lahore High Court at that time, was nominated as the President of the Committee and Justice Kayani as its member. The author of the Report conclude: The net result of all this is that neither Shia nor Sunnis nor Deobandis nor Ahl-i-Hadith nor Barelvis are Muslims and any change from one view to the other must be accomplished in an Islamic state with the penalty of death if the government of the state is in the hands of the party which considers the other party to be kafirs. Given by the ulema, need we make any comment except that no two learned divines are agreed on this fundamental.

The leading party had been treated as a pure question of law and order, without any political considerations and District Magistrate and one Superintendent of Police could have dealt with them.

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The Muhammad Ali Formula-1

The Muhammad Ali Formula: Compromise Formula on Federal Legislature

On the dismissal of Nazimuddins government, Muhammad Ali Bogra was appointed Prime Minister who regarded it as one of his principal tasks to overcome the constitutional deadlock.
October 7 1953 and adopted by it on 6 October 1954. The Muhammad Ali Formula was as follows: The federal legislature should be composed of two Houses-the House of Units and the House of the People. The total strength of the House of Units would be fifty, to be equally divided among the five units. The House of Units would be elected indirectly by the legislatures of the units, and where there was no legislature, the system of election was to be determined by an act of the federal legislature. Equal powers were to be extended to both Houses. Houses for the election of the head of the state and for disposal of votes of confidence. In case of a difference of opinion between the two Houses, a joint session of the two Houses would be called and the measure might then be passed by a majority vote. If the difference could not be solved, the formula originally provided that the head of the state could dissolve the legislature but this clause was amended when the formula was adopted by the Constituent Assembly.

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The Muhammad Ali Formula-2

The formula, however, brought some improvement compared to the first and second drafts of the Basic Principles Committee;

The distribution of seats in the Upper House was made in accordance with the geographical facts of the country. As West Pakistan had the major part of the countrys territory, it was given a clear majority in the House of Units.
The distribution of seats in the two Houses was made in such a way as to ensure parity between East and West Pakistan. An analysis of the problem of representation which was faced by constitution makers in Pakistan reveals the feelings of mutual distrust, fear and suspicion between the people of East and West Pakistan. The Muslims of undivided Pakistan were united in a unique way under the leadership of Muhammad Ali Jinnah and fought for Pakistan without any sense of distinction as Bengalis, Punjabis, Sindhis, and so on. But soon after the establishment of Pakistan, provincial and regional feelings began to manifest themselves. East Pakistan felt that they did not have a fair and adequate share in the central government and administration. They felt that they had been neglected and were dominated by the West wing. This gave birth to the feelings of regionalism in East Pakistan. As a consequence, political issues often came to be judged on the basis of provincial interests. National unity and national feelings were considerably damaged and therein lay the root cause of the difficulty in finding a basis for representation in the legislature under the future Constitution. Each unit feared the domination of the other and consequently, the framers of the Constitution had to evolve the formula of a government based on regional parity. The difficulties involved in such an arrangement were regarded as a painful necessity.

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The Provincial Autonomy and a Strong Centre

The Controversy between Provincial Autonomy and a Strong Centre Regarding the distribution of powers between the federal and the provincial governments. Geography and history alike demanded that Pakistan should have a federal government. While there was general agreement who wanted maximum autonomy for the provinces with a weak centre and those who favoured a strong central government with provinces enjoying limited autonomy. Understanding and mutual distrust between the people of the two wings. Disgruntled politicians in both wings wanted not only provincial autonomy but also a weak centre. The school demanding greater authority for the provinces claimed that in view of the geographical facts prevailing in Pakistan, the powers of the centre should be strictly enumerated and residuary powers should be vested in the provinces.

Demand for maximum autonomy came first from the largest unit, namely East Pakistan.
They feared an increase in the power of the centre would mean a corresponding decrease in their power and influence. Demand that only three subjects namely, defence, foreign affairs, and currency, should be given to the centre and then rest should be vested in the provinces.
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Provincial Autonomy and a Strong Centre-2

There was popular opinion in favour of giving more powers to Eat Pakistans provincial government because it had been felt over seven years that the province could best be administered in by the legislature in Dhaka rather than by the central legislature in Karachi. K. Brohi, former Minister for parliamentary Affairs in Pakistan had been geographical contiguity between East and West Pakistan, then the principles of decentralization of power might have been the basis of the Pakistan Constitution. There was no alternative but to provide for a strong central government. The demand for a strong national government was supported by a majority of members of the first Constituent Assembly to fight provincialism.

Neither of these two methods was acceptable in Pakistan. A third course was adopted, devised by the British experts when they distributed powers in the federal constitution for undivided Pakistan under the Government of Pakistan Act 1935.
In the final draft of 1954, they followed the method of preparing three lists of subjects, federal provincial and concurrent. The central government was given wide powers to manage defence, foreign affairs, currency and banking, communications.

Residuary power, following the model of the 1935 Act, was vested in the head of the state who, in consultation with the provincial governments, might direct any specified subjects not mentioned in any of the lists to be classified as being a part of either.

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The Issue of National Language-1

The Issue of National Language

The third issue in the controversy between East and West Pakistan was that of language. Pakistan is a multilingual state.
The controversy was whether Pakistan should have a single state language. Urdu or two state languages, Urdu and Bengali. Presented the following formula which was accepted by the Constituent Assembly:

The offjicial language of Pakistan should be Urdu and Bengali and such other language as might be declared by the Head of the state on the recommendation of the provincial legislatures concerned; Members of Parliament should have the right to speak in Urdu and Bengali in addition to English;
Notwithstanding anything in the above Article, for a period of twenty years from the commencement of the Constitution, the English language should continue to be used for all official purposes of the Republic for which it was being used immediately before such commencement;

For examination of the central services, all provincial languages should be placed on an equal footing;
The state should take all measures for the development and growth of a common national language. Provision be made to teach Arabic Urdu and Bengali.

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The Issue of National Language-2

was clear from the day of its adoption that the formula could satisfy no one. The Prime Minister, Muhammad Ali, explained that the formula attempted to reconcile the demands of all sections of the people. It tried to accede to the demand of the Bengalis and, at the same time, sought to maintain linguistic unity. In fact, the framers of the Constitution obviously wanted to postpone the issue for twenty years when they expected a better environment for a solution to the problem.

From the theoretical point of view, a multi-lingual state is not desirable as it raises many problems. No doubt, the adoption of one state language, if it were possible, would have been preferable from the standpoint of national unity, but it would have been unrealistic and unwise to ignore the demand of the people of East Bengal. The East Pakistanis insisted on Bengali as one of the state languages and to impose uniformity of language detrimental to the national unity for which Jinnah had wanted on state language. The adoption of Bengali would have lead to stronger ties and better understanding between the peoples of the two wings. The multi-lingual solution, it would seem, was a pragmatic approach in the existing circumstances.

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Election in East Pakistan-1

Election in East Pakistan Before the adoption of the draft Constitution on the report of Basic Principles Committee, Provincial elections were held in East Bengal from 8 to 11 March 1954 resulting in an overwhelming victory for the United Front (Jugto Frong) an alliance of parties opposed to the ruling Muslim League. The main items in the United Fronts programme were as follows: Out of 309 seats, the United Front (Consisting of three Muslim parties the Awami Muslim League, the Krishak Sramik Party and the Nizam-i-Islam) gained 223 sets, the Muslim League, 10; Independents, 3; Khilafat-e-Rabani, 1; and minorities, 72.
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Election in East Pakistan-2

The main items in the United Fronts programme were as follows:Recognition of Bengali as an official language at par with Urdu. Rejection of the draft Constitution, the dissolution of the Constituent Assembly, and its replacement by a directly elected body. Complete autonomy for East Pakistan in all matters except defence, foreign policy, and currency, which would be reserved for the central legislature. Complete freedom from the centre with regard to export of jute. Consultation between the centre and East Pakistan on the allocation of foreign exchange for imports. Abolition of the Indo-Pakistani passport and visa system and of existing restrictions on trade between East and West Bengal. Devaluation of the Pakistani rupee.

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Election in East Pakistan-3

The defeat of the Muslim League in East Bengal which had 56 per cent of the total population of Pakistan led to demands for the resignation of the central government and the dissolution of the Constituent Assembly as unrepresentative. These demands, were rejected by Muhammad Ali who stated; The task of framing the Constitution was not entrusted to the Muslim League as such, but to all members, Muslim or non-Muslim, specifically chosen for this purpose. There is no government party and no opposition in the Constituent Assembly. For members from a particular province to resign merely because their party had gone out of office in that province would, he argued, create an unworkable precedent. Elections to one or other of the provincial legislatures would be held practically every year, and if the character of the central government changed whenever a new party came to power in one of the provinces, there would be no stability or continuity. Following the Prime Ministers statement, the Working Committee of the Muslim League ordered its members from East Bengal in the Constituent Assembly not to resign their seats.
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Amending the Acts of 1954

Amending the Acts of 1954. The Constituent Assembly, in the same session in which the Report of Basic Principles Committee was adopted, passed two important Bills.

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Dissolution of the Constituent Assembly-1

Dissolution of the Constituent Assembly and Proclamation of a State of Emergency

With the constitutional issues at last settled and the drafting entrusted to experts working under a deadline of 1 January 1955, the Constituent Assembly was adjourned sine die. The GovernorGeneral (Ghulam Muhammad), stung by the Assemblys action in curtailing his powers, struck back. On 24 October 1954, he dissolved the Constituent Assembly and announced an end to what he described as parliamentary bickering. He issued the following proclamation: The Governor-General having considered the political crisis with which the country is faced, has with deep regret come to the conclusion that the constitutional machinery has broken down. He therefore has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function. The ultimate authority vests in the people who will decide all issues including constitutional issues through their representatives to be elected afresh. Elections will be held as early as possible. Until such time as elections are held, the administration of the country will be carried on by a reconstituted Cabinet. He has called upon the Prime Minister to reform the Cabinet with a view to giving the country a vigorous and stable administration. The invitation has been accepted. The security and stability of the country are of paramount importance. All personal, sectional and provincial interests must be subordinated to the supreme national interest.

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dissolution of the Constituent Assembly-2

The significant thing in the proclamation was that it did not say in clear and specific terms that the Constituent Assembly was dissolved. It only said that the Constituent Assembly had lost the confidence of the people and can no longer function. Another important omission was that it nowhere specified any provisions or sections of the Independence Act or Government of India Act, 1935 under which the proclamation was issued. Normally, whenever any order or proclamation is made the provision of law under which the power is exercised is indicated. The proclamation was the subject of lengthy legal disputes which will be discussed in the next chapter. Compromises and formulas which had been widely proclaimed as the best contrivable solutions to certain problems were now being assailed. The dissolution of the Constituent Assembly threw the country into chaos and confusion by reviving old rivalries and reopening old controversies. It is true that the first Constituent Assembly had made undue delay in framing the Constitution. It is equally true that the East Pakistan elections of 1954 had demonstrated that it had lost the confidence of the people to a great extent, yet it is difficult to justify the GovernorGenerals action in abruptly dismissing the Constituent Assembly when it was about to finish its work. Ghulam Muhammad instructed Muhammad Ali Bogra, the Prime Minister, to form a Cabinet without the benefit of parliament. Hastely, a Cabinet was put together which included MajorGeneral Iskandar Mirza, Dr. Khan Sahib, and General Muhammad Ayub Khan, who was the Commander-in-Chief of the Pakistan Army. This was the beginning of the army taking over civilian responsibilities as a Cabinet member, this time as the Minister for Defence. This was also the beginning of the end of the supremacy of civilian over military power.

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