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Constitution Making in Pakistan and its Interruptions

Dr. Anjum Sarfraz

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Constitution is the supreme law of the land from which all public authorities derive their power.  It sets out the frame work for governance and exercise of power of the state institutions and relationship between them. At the time of independence an interim constitution was adopted by the Constituent Assembly which was modified version of India Act 1935.The Objective resolution which contained guide lines for framing the constitution was approved by the Constitution Assembly on 12 March 1948. 

Emphasis was on principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam. Prime Minister (PM),Liaquat Ali Khan headed the first Basic Principle Committee (BPC) formed the same day for framing the constitution.  The committee submitted first   report on 28 Sep 1950which was not approved mainly because it gave equal representation to both wings although East wing had more population than West and Urdu as the state language. Second draft was presented on22 Dec 1952 by PM, Khawaja Nazim ud Din (Liaquat Ali Khan had been assassinated on 15 Oct 1951). It proposed bicameral legislation, lower and upper houses  to have equal representation (upper house 60 each and lower 200 each). This also came under criticism, because of equal seats of two wings, and Urdu as state language. Third draft was presented on 5 OCT 1953, by PM, Muhammad Ali Bogra, which is also known as Bogra formula. It compromised on disparity and proposed bicameral legislation. It proposed lower house on the basis of population total 300 seats (East Bengal165, remaining4 units of West Pak 135).Upper house of 52 seats, 10 each to 5 constituent units and 2 reserved for women.  In the meantime a political development took place, provincial elections were held in East wing in March 1954. Muslim League secured only 10 seats (badly defeated). 

The assembly passed a bill in Sep 1954 which made Governor General (GG) to act on the advice of the PM. It was also made mandatory for GG to appoint PM a member of assembly who enjoys the confidence of majority.GG, Ghulam Muhammad dissolved the assembly on 24 Oct 1954.The Supreme Court headed by Justice Muhammad Munir upheld the decision under the law of necessity.  However Justice Cornelius wrote note of dissent. New Elections were held on 21 June 1955, to elect 40 members each from both wings.PM, Chaudhry Muhammad Ali, took the task of constitution making. It was passed on 29 Feb 1956 to be effective from 23 March 1956.It was mainly based on government of India Act 1935, parliamentary form of government. The state was declared as Islamic Republic of Pakistan. It was unicameral legislation to be elected on the basis of parity between the two provinces. Just after about two years, President Iskander Mirza dissolved the assemblies, abrogated constitution and appointed Gen Ayub Khan C in C Army as Chief Martial Administrator (CMLA) on 7 Oct 1958.

Main reasons announced, were enhancement of corruption in society and constitution unworkable. On 17 Oct 1958 President Iskander Mirza resigned in favor of Gen Ayub Khan, later became President and CMLA. The Supreme Court headed by Justice Muhammad Munir again legitimized the Martial Law under the law of necessity and Justice Cornelius wrote the note of dissent as he did not agree that coup could be legally justified. Gen Ayub Khan appointed Commission in Feb 60 to frame constitution which was promulgated on 8 June 1962. It had Presidential form of government, federation to have two units, East and West Pakistan. There were 40,000 Basic Democracy (BD)members to be elected from each wing. BD members were Electoral College for the elections of president, members of national and provincial assemblies.  Most powers with center. It was a unitary form of government. This constitution did not last very long, because the President became autocratic and less provincial autonomy.

The agitation started against the President Ayub Khan in late1968. He handed over powers to C-in C Army, Gen Agha Muhammad Yahyakhan who proclaimed Martial Law on 25 March 1969. As per constitution the Speaker of national assembly should have been handed over powers. This Martial Law was declared usurper by the Supreme Court. Justice, Hamood ur Rehman had written in Asma Jilani case (PLD 1972 SC 139) that Gen Yahya Khan had no authority to abrogate constitution of 1962 and impose Martial law. This was the first time that abrogating the constitution was declared unlawful. However, no action was taken against any one. After the fall of Dhaka on 16 Dec 1971, East Pakistan became Bangladesh. Zulfikar Ali Bhutto became President and CMLA on 20 Dec 71 and continued till15 April 1972 when the National Assembly adopted India Act of 1935 with amendments as an interim constitution. A committee of 25 members was formed to frame constitution and   finally the National Assembly adopted constitution (commonly known as constitution of 73) with consensus on 11 April 1973.

Main features are, parliamentary form of government, president head of state and PM head of govt. It has bicameral legislation, lower house to have seats as per population and upper house equal seats of the 4 federating units. According to this constitution, the federal government shall have control and command of the Armed Forces and supreme command of Armed Forces shall vest in the President. The President shall on the advice of the PM appoint, Chairman Joint Chiefs of Staff Committee (CJSC), and services chiefs.  The Armed forces shall, under the directions of the Federal Government defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so. This constitution was also abrogated/ held in abeyance twice once on 5 July 1977 by Gen Zia ul Haq and on 12 October 1999 by Gen Musharraf. In both cases the decisions of Army chiefs were not only legalized by the Supreme Court, but also the Military Rulers were authorized to amend the constitution.

Gen Zia amended the constitution, besides other clauses included 58- 2b which gave discretionary powers to the President to sack the government and dissolve the assemblies. It is pertinent to mention that in parliamentary form of government president is head of state and has only his secretariat and no cabinet to advice. Applying this clause Gen Zia dismissed the government of PM, Muhammad Khan Junejo (23 Mar 85- 29 May 88).  Using same clause President Ghulam Ishaque khanin the first tenure of Benazir Bhutto (2 Dec 88- 5 Aug 90)and later President Farooq Leghari in her second tenure (19 Oct 93-4 Nov 96) terminated her governments.  President GhulamIshaque Khan sacked the first government of PM, Nawaz Sharif (6 Nov 90-17 Jul 93)   and his second government (17 Feb 97-11 Oct 99) ended by coup of Gen Musharraf. The country had remained politically unstable as long as clause 58-2b was part of constitution.   It was finally removed through 18th amendment on8 April 2010. The 71years history of Pakistan is full of constitutional turmoils.

The country has been governed by 4 constitutions (twice India Act 1935, 1956 &1962), 4 times military ruleand3 times elected governments were dismissed under clause 58-2b and now1973 is in vogue. It is pertinent to mention that India got independence with Pakistan in 1947,had adopted constitution on 19 November 1949 to come into force on 26 January 1950.  It has never been abrogated or held in abeyance.  We have made a lot of experiments to frame constitution and to run the government. Infect country has been mostly governed by hit and trials. Need of the hour is a politically stable government, with strong and independent pillars of the state, judiciary, legislation, and administration. All institutions of the country are required to be strengthened to work strictly in accordance with the constitution, rules, regulations and the oath taken by various authorities.

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South Asia

Kashmir Issue at the UNGA and the Nuclear Discourse

Haris Bilal Malik

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The Kashmir issue has more significance in view of the nuclearization of South Asia as many security experts around the world consider Kashmir a potential ‘nuclear flashpoint’ between India and Pakistan. The revocation of the special constitutional status of Kashmir by the BJP government on August 5, 2019, also referred to as Jammu and Kashmir Reorganization Act 2019 and the subsequent lockdown in Kashmir has since considerably increased political and diplomatic tensions between India and Pakistan. India’s recent moves and actions in Kashmir have once again internationalized the Kashmir dispute. This was evident during the UN General Assembly’s 74th Session, where the Kashmir issue remained a crucial agenda item for several countries.

During this year’s session prominent leaders of the world condemned Indian brutalities in Kashmir. Turkish President Recep Tayyip Erdoğan criticized the international community for failing to pay attention to the Kashmir conflict and called for dialogue to end this dispute. Malaysian Prime Minister Dr. Mahathir Mohamad said that Kashmir “has been invaded and occupied” by India despite the UN resolution on the issue. Chinese Foreign Minister Wang Yi also discussed the issue and called for a peaceful resolution of the dispute based on the UN Charter and Security Council resolutions. Based on the grave importance of Kashmir as a potential ‘nuclear flashpoint’ between India and Pakistan, Prime Minister Imran Khan, while addressing the UNGA warned the world community about the dangers of a nuclear war that according to him might break out over Kashmir due to Indian atrocities. The current situation appears to be the most critical time for both the countries and the region as both countries are nuclear-armed.

However, unfortunately, the Indian leaders and media perceived Prime Minister Imran Khan’s warning as a nuclear threat and termed it as ‘brinkmanship’. Contrary to this perspective, it is worth mentioning here that the Indian leadership itself is involved in negative nuclear signaling and war hysteria against Pakistan in recent months. For instance, the 2019 Indian General Election campaign of Prime Minister Modi was largely based on negative nuclear signaling comprising of several threats referring to the possible use of nuclear weapons against Pakistan. Furthermore, as an apparent shift from India’s ‘No First Use’ (NFU) policy, on August 16, 2019Indian Defence Minister Rajnath Singh, while on a visit to the Pokhran nuclear test site paid tribute to the late former Prime Minister Atal Bihari Vajpayee and asserted that India might review its NFU policy. He stated that a change in future circumstances would likely define the status of India’s NFU policy. Since then there is no official denial of this assertion from India which indicates that India might abandon its NFU policy.

Moreover, India’s offensive missile development programs and its growing nuclear arsenal which include; hypersonic missiles, ballistic missile defence systems, enhanced space capabilities for intelligence, reconnaissance, and surveillance and the induction of nuclear-powered ballistic-missile-capable submarines clearly indicate that India’s nuclear weapons modernization is aimed at continuously enhancing its deterrence framework including its second-strike capabilities vis-à-vis Pakistan. This is also evident from India’s military preparations under its more recent doctrines such as the 2017 Joint Doctrine of the Indian Armed Forces (JDIAF) and the 2018 Land Warfare Doctrine (LWD)which are also based upon more proactive offensive strategies and indirect threats of pre-emptive strikes against Pakistan.

As evident from the above-mentioned developments, it seems likely that India aspires to increasingly project itself as a regional hegemon and a potential superpower. The BJP government under Prime Minister Modi inspired by the Hindutva ideology is taking offensive measures under the notions of ‘a more Muscular or Modern India’ based on strong military preparedness. In such circumstances, Pakistan’s threat perception would likely remain increasingly inclined towards its eastern border. Pakistan due to its economic constraints would also likely face considerable difficulties in competing with India toe to toe with respect to its military modernization plans. Pakistan is already punching well above its weight, and nuclear deterrence would be the only way through which Pakistan can maintain a precise balance of power to preserve its security. This could only be carried out by deterring India with the employment of both minimum credible deterrence and full-spectrum deterrence capabilities. This posture clearly asserts that since Pakistan’s nuclear weapons are for defensive purposes in principle, they are aimed at deterring India from any and all kinds of aggression.

Hence, at the present India’s forceful annexation of occupied Kashmir and the resultant nuclear discourse at the UNGA has further intensified Pakistan-India tensions. Under present circumstances, the situation could easily trigger another politico-military escalation between India and Pakistan. Prime Minister Modi has bet his political reputation on his move to annex the region and his political career is on the line. The same way Pakistan’s politico-military establishment is equally unlikely back down from its stance on Kashmir. It would be difficult for both countries to come down from the escalation ladder because politico-military reputations would be at stake at both ends. Consequently, Pakistan might be forced to take action before India’s modernization plans get ahead and might respond even sooner.

The nuclear discourse in Prime Minister Imran Khan’s speech against the backdrop of the Kashmir crisis at such a high forum like UNGA would likely keep the issue internationalized. The situation demands the UN fulfill its responsibility of ensuring peace and to prevent billions of people from the dangers of a nuclear war. However, Indian blame game, aggressive behavior and offensive nuclear signaling against Pakistan all present a clear warning of nuclear war. It would greatly limit the prospects for international mediation especially by the United Nations whose resolutions on Kashmir clearly provide a right of self-determination to decide Kashmir’s future.  

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1.2 trillion rupees on the move: Modi’s greatest piece of purchase yet

Sisir Devkota

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Last week, the RBI (Reserve Bank of India) was taken aback by more than a surprise. Just when it was dealing with the uncomfortable series of events that led to the transfer of surplus 1.2 trillion rupees into the government of India; social media erupted. It quickly realized that losing the battle regarding the transfer would only add fuel to the hoax of closing down nine commercial banks. RBI enjoys considerable amount of autonomy and independence in the largest democracy, and still, it had to kneel down to Modi’s alleged quick fix.

The RBI would have to vouch for the government in times of need, it is primarily what is expected of the institution; but there was a great deal of discomfort in how the government justified it. A committee set up under the ex-governor, Mr Bimal Jalan, cited how central banks would not need so much of surplus to carry out their affairs. Effectively, it was an order, not a request, which became the underlying discomfort behind RBI’s hesitancy in adhering to the views of capital transfer committee. Not that anyone expected the central lender to protest longer, it did however, request Mr Jalan to reconsider the decision at the face of various consequences. To say the least, it was embarrassing for a premier financial institution to be put under the public eye. The social media hoax was another ridicule of the sickly RBI. In the tales of grand conquests, the victorious army steals the wealth from the losing party. Similarly, the BJP led government in India are redefining all forms of state tools in favour of their interests.

Stolen wealth is most often than not used to correct economic blunders. Just like in the tales of grand conquests, the decision to transfer national wealth from the reserve bank is nothing new. It is nevertheless baffling, that the money transfer is looping in the same direction. While the BJP government in India were imposing a comprehensive GST (Goods and Service Tax) policy, they would not have anticipated complaints from large industries over decreased consumer consumption. For a party that is now known to redefine the legitimacy of governance, falling prey to NBFC’s (Non-bank Financial Companies) incompetence or bankruptcy is a visible defeat. Unlike many other soaring economies, there are large group of subsidiary lenders operating in India. On hindsight, economic policies are barely creating tunnels through which the capital is getting recycled in the same loop. Revenues are not generating further revenues. It is merely closing down on its self-inflicted gap.

The Security and Exchange Board of India (SEBI) almost played with fire. Uncharacteristically, it proposed a framework to work together with the RBI in order to claim outstanding defaults from high value clients. The RBI was never going to agree with a defaming offer as such but the incident did fuel the argument of capital shuffling. It only makes the bluff look more real. A strategic plan to counter all measures that would have blocked the transfer of trillions. As Mr Jalan sheepishly implied how the importance of central bank and what is does is only limited to the public perception, RBI fought a fix in between larger or rather dangerous political agendas. Consolidating requests from SEBI to only fall into the whims of the government shows the lack lustre personality of the central funding institution. For the time being, Narendra Modi has his way, a theft of national treasure-like his opposition colleague Rajiv Gandhi expressed in the media. However, there will also be a far-fetched evaluation of Modi’s actions. A move of 1.2 trillion rupees in the same pot. Not by any means, a cunning cover up.

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South Asia

Walking the tight rope: India’s Diplomatic Strategy in the Middle East

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India’s diplomatic corps have been resolutely articulating India’s stances and furthering its interests in the international fora where multiple challenges emanating from historical and contemporary contexts are being faced. One important factor which India’s astute foreign policy makers have faced is the complicated and crucial engagement with the Middle East. There are multiple facets to India’s engagement in the contemporary context that add to this complexity. One, India’s old adversary and neighbor Pakistan has upped the ante in its diplomatic blitzkrieg especially within the Muslim world. Second India’s has varied strategic interests in the warring Middle East factions. Third, the economic interdependencies and the crisis in the international trade in the Trump era has further complicated India’s position as an economic actor in the region. While there are various constituent elements of India’s Middle East outreach, the contemporaneous concerns relate more to its relationship with the Kingdom of Saudi Arabia, Islamic Republic of Iran and the Republic of Turkey.

India and Saudi Arabia have historically engaged in deep and multi-dimensional political, economic, cultural, defence and strategic cooperation. Saudi Arabia has long been an important Indian trade partner; the Kingdom remains a vital source of energy for India, which imports almost a fifth of its crude oil requirement from Saudi Arabia. Enhanced security cooperation has added a new dimension in the bilateral ties between New Delhi and Riyadh. Recently, Indian PM Narendra Modi was conferred with the highest civilian award of the Kingdom of Saudi Arabia even as the top leadership continues to send signals of deep comradarie and solidarity.

With the ascent of the crown prince Mohammad Bin Salman, various layers in this important diplomatic relationship have surfaced. This has happened in a particularly peculiar geopolitical and geostrategic context where both countries have faced tough challenges to their internal stability and international position. While Kingdom of Saudi Arabia is still emerging from the consequences of the massive attack in its oil fields as well as the widespread criticism of humanitarian crisis in Yemen at the international fora, India is grappling with international criticism and discourse about the situation in Kashmir in context of dilution of its political autonomy as well as prolonged information and communication blackout.KSA has had a mediating role in the Indo-Pak tussle since Pulwama and how this hyphenation has led to competitive photo-ops of diplomatic support. Even as KSA has stood by Indian leadership’s vital interests. However, the Pakistani leadership has been relentless in its attempts to appeal to the leader of the Islamic world for vital economic and diplomatic support, especially in context of the Kashmir situation. Even as Saudi Arabia has managed this delicate equation with deftness, it has given in to Pakistan’s economic demands while making a symbolic gesture of closeness by offering the private jet to Pakistani Prime Minister for his visit to the West.  It doesn’t help that the Indian economy is going through a rough phase. However, the audacious announcement to invest $100 Billion in the fledgling Indian economy is a bold testament of the veritable and vibrant economic partnership between New Delhi and Riyadh. It is pertinent to note that in the contemporaneous challenges that the countries face, Iran as well as Pakistan emerge as key actors that affect the bilateral engagement in a pronounced manner.

Iran is India’s historic ally and third largest supplier of crude oil. However, the India-Iran relationship transcends oil. India, with an investment of $500 million, aims to develop Iran’s Chabahar port as a transit hub for Afghanistan, Central Asia, and the International North-South Transport Corridor (INSTC). Additionally, India is developing two gas fields, namely Farzad-B gas field located in Tehran and the South Pars field located between Iran and Qatar. These projects clearly highlight India’s long-term engagement with Iran. However, India’s muted response to US pressure has been causing slight tension in the bilateral relationship. Even though the top-level bilateral meeting between Indian premier Modi and his Iranian counterpart Hassan Rouhani was successful to diffuse tensions to an extent. The crisis in Yemen, oil trade and even India’s action in Kashmir continue to affect the relationship.

In this context, the challenges emanating from Turkey are also a sign of worry. Even as Turkey has remained an old ally of Pakistan and a supporter of the ‘Kashmiri’ cause, its open support for a rather lonely Pakistan should cause some worry in India’s strategic circles. This is because India has fine diplomatic relations with Turkey and has considerable economic and trade interests.

However, oil being an important consumer and agricultural good in India’s economy, it is important to secure its interests to have access to reliable and affordable Iranian crude oil. The trade negotiations and engagements with the US haven’t had any headway even as the threat of sanctions for buying oil from Iran continues. India could emerge as a trouble-solver in this context especially since this KSA-Iran conflict in oil supply context has global implications. PM Modi’s personal chemistry with the US leadership could be useful in this context.

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