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Constitutional Developments 1947-56

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Introduction

Government of India Act 1935 became, with certain adaptations and modification, the interim constitution of Pakistan. Not a sufficient act to fulfill the requirements of an independent State. A new Constituent assembly was setup to form the Constitution. It was inaugurated by Quaid-e-Azam on 11th August,1947.
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Constitution making process remained a very complicated phenomenon in the history of Pakistan India made her Constitution in 1950 but Pakistan could not till 1956. Palace intrigues and lust for power slowed down the constitution making process after the death of Quaid-i-Azam .

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Ethnic, cultural and religious diversity made the constitution making process more complicated. The most sensitive and awesome situation was of deciding the role of religion in constitution. Some preferred Pakistan to be a secular State.

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Religious lobby was emphasizing to convert Pakistan into theocratic State. Some Political leaders were in favor of strong centre, while others wanted complete autonomy for the Provinces.

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 First

major step taken by the constituent assembly on 12 March 1949,when it passed the resolution, popularly known as the "Objective Resolution on the aims and objectives of the Constitution.

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Salient features of Objective Resolution

Sovereignty over the entire universe belongs to Allah, the God Almighty and authority which He has delegated to the people of Pakistan is a sacred trust, which will be exercised within the limits prescribed by Him in Quran and Sunnah. The principles of democracy, freedom, equality and social justice as enunciated by Islam will be completely adhered to.
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Exercise of fundamental rights shall be fully guaranteed. Minorities to have rights to freely profess, practice their religion and develop their culture will be fully protected. Judiciary will be independent. Form of government will be federal.

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Criticism
Resolution was criticized by opposition: It mixed up politics with religion. It reduced the minorities to the status of slaves and servants. It allowed the state to interfere in the personal affairs of the people.

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Significance
First concrete effort to make the constitution Fundamental rights were guaranteed. Rights of minorities were protected. Suggested federal form of government. Guaranteed the independence of judiciary. Laid down the fundamental principles of the future constitution.

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Further developments

Basic Principle Committee(BPC) was appointed on March12,1949 to determine those principles on which the future constitution was to be based. BPC published its first draft in September 1950 which was rejected by East Pakistan. Liaqat Ali Khan was assassinated in Rawalpindi on 16 October 1951 and Khawaja Nazim-ud-Din stepped in.
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Nazim-ud-Din presented the second draft of constitution in the assembly in December 1952 which was rejected by both East and West Pakistan. Khawaja Nazim-ud-Din was removed in April 1953 and Muhammad Ali Bogra stepped in.

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Mr.Bogra presented a formula popularly known as Bogra Formula in October 1953 which was considered by both sides. Assembly drafted a constitution by September 1954 and date of its promulgation was announced but assembly was dissolved on October 24,1954 in an undemocratic way.

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Second Constituent assembly was setup in 1955 elected from the existing Provincial Assemblies. Prime Minister Choudhry Muhammad Ali presented a draft of Constitution before the assembly on 8th January 1956 which was approved on 29th February 1956. On 23 March 1956, Constitution was Promulgated and Pakistan was Declared a Republic.
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1956 Constitution
Passed on 29 February and was promulgated on 23 March 1956. Consisted of 234 articles, arranged in 13 parts, short preamble in the beginning and six schedules attached at the end ,covered total of 94 pages.

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The Preamble

The preamble of the constitution was the Objective Resolution which was adopted by the Constituent assembly in March,1949.

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The Islamic Provisions

Pakistan was defined as an Islamic Republic, wherein the principles of freedom,equality,tolerance,and social justice as enunciated by Islam, should be fully observed. Islamic provisions will be followed by the state authorities while formulating state policies.

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Steps were to be taken to enable Muslims of Pakistan to order their lives according with the Holy Quran and Sunnah The President was to be a Muslim. No law shall be enacted ,which is repugnant to the injunction of Islam as laid down in the Holy Quran and the Sunnah: and that the existing laws shall be brought into conformity with such injunctions.

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Islamic Advisory Council were to be set up. Nothing should affect the personal laws of non-Muslims or their status as citizens.

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The President
Chief Executive and Head of State. Should be a Muslim. Not less than 40 years of age. To be elected by members of National assembly and Provincial assemblies for 5 years. Could be eligible for election.

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Could not continue more than two consecutive terms. Could be impeached by members of legislature. Emergency Powers. Financial powers Could Summon, prorogue and dissolve the assembly.

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Power to appoint the Prime Minister. Provincial Governors and Judges with consent of Chief Justice, Auditor General and Advocate General. Power to release ordinances. Power to pardon, commute of sentences. Ministers, Deputies appointed by President. Official acts could not be challenged.

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Speaker will be acting President in case of incapacitation or absence. In absence of Prime Minister, powers transferred to President. Limited power to veto.

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Legislature
Uni-Cameral Legislature known as National Assembly 150 Seats each from East and West Pakistan 10 women seats, 5 each from both sides. 21 years voter age. 25 years Candidate age. Member could loose his seat in case of consecutive 60 days absence.

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At least two sessions of National Assembly in a year. At least one session to take place in Dhaka. The assembly to choose Speaker and Deputy Speaker from its own members in its first session.

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Life of Assembly is 5 years but could be dissolved by the President earlier. Elections were to take place within 6 months, no by-elections could be delayed beyond 3 months.

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Prime Minister and Cabinet

Leader of House and Head of Cabinet. Must enjoy the confidence of Legislature. Could be removed by the President. Real executive authority vested in the Cabinet. Collectively answerable to the National Assembly.

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Federal Structure

Comprised of two Provinces, East and West Pakistan. Principle of parity to two Provinces. Three Lists
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2.

Federal:- thirty subjects included Foreign affairs, Defence, Currency,Citizenship,foreign and interProvincial trade and Commerce, Insurance, Industries, Postal, Telecommunications, Mineral Oil and Gas. Provincial List:-Ninety four subjects
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1.

Public order, Administration of Justice,Police,Land,agriculture,local governments,education,pblic health,sanitation,industries,factories,regulati ons of mines,forest,electricity and other subjects of local interest. Concurrent List:-19 items list comprised of certain matters, which could not be given either to centre or to Provinces.

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Residuary powers were given to Provinces. Federal had priority over Provinces list. Provinces could not tax to federal property. Taxes and financial powers to both. Parliament was supreme decision power in case of any conflict. Chief Justice could also play a role to settle the matters.

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Judiciary
Independence of Judiciary was guaranteed. Supreme Court:-Headed by Chief Justice with

6 judges. To Interpret the Constitution. Had original as well as appellate jurisdiction. Had powers to adjudicate in any dispute between Centre and Provinces or vice versa.

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High Court:Each Province had a High Court, Consisted of Chief Justice and 12 other Judges. Appointed by the President of Pakistan in consultation with the Chief Justice.

Civil Servants could be appointed Judges.

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Fundamental rights
Part II laid down the fundamental rights guaranteed to the citizens of Pakistan. State shall not make any law contrary to fundamental rights. All citizens were equal and no one could be deprived of life or liberty except in accordance to law.

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Freedom of speech and expression was guaranteed but could be restricted by law in the interest of security of Pakistan, decency, morality, etc. Rights of freedom of assembly and freedom of association were provided. Every citizen could move through out the country, and could reside,settle,hold and dispose of property in any part of it.

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Slavery and forced labor were prohibited. Religious liberties were guaranteed. No person could be forced to pay any special tax, the proceeds of which were to be spent on the propagation or maintenance of any other religion other than his own.

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All these rights were enforceable by Supreme Court and therefore Court was given powers to issue directions, orders or writs of all kinds for the enforcement of any of these rights.

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Abrogation of Constitution

Constitution was abrogated on October 7,1958 when the Martial law was proclaimed by General Ayub Khan.

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