Nine Years from Dominion to Islamic Republic of Pakistan and Thereafter

The parliament of UK passed the Indian Independence Act, 1947, on 18 July 1947 which stated that from 15th August 1947, British India would be partitioned into two dominion states India and Pakistan. Each dominion would have complete freedom to pass any law it wished. The Government of India Act 1935 would be the provisional constitution until the states devised their own. The Quaid while addressing the Constituent Assembly on 11 August 1947 emphasized that it has got two main functions, first framing the future constitution and the second, functioning as a complete sovereign body as the Federal Legislature of Pakistan. The Assembly passed the objective resolution on 12 March 1949, which gives the guidelines to frame the constitution, the main point being Pakistan shall be federation, wherein the state shall exercise its powers and authority through the representative of the people; the principles of democracy, freedom, equality, tolerance, and social justice as enunciated in Quran and Sunnah shall be fully observed. Provision shall be made for the minorities to freely profess and practice their religion and culture.

The Basic Principles Committee(BPC) headed by PM, Liaquat Ali Khan was formed the same day to frame the constitution.  It submitted a report on 28 Sep 50 which proposed bicameral legislation (two houses),the upper house having equal representation from former East Pakistan (E Pak) and West Pakistan(W Pak) consisting of 100 members.  The Lower House will be based on population, consisting of 400 members. Both Houses will enjoy equal powers. This report was criticized, because of equal seats in the upper house.  It is pertinent to mention that as per the census of 1951 population of E Pak was 42 and W Pak 33.7 million. The second draft was presented by PM Khawaja Nazim ud Din on 22 Dec 52, PM Liaquat had been assassinated on 15 Oct 51.It also proposed bicameral legislation in which House of Units to have 60 members from E Pak and 60 from all provinces of W Pak. House of People to consist of 200 members from all units of W Pak and 200 from E Pak.  It was not accepted because of equal representation in the lower house. The third draft was presented by Muhammad Ali Bogra on 5 Oct 53, it is also known as the Bogra formula.

The proposal was a bicameral legislature, Lower House based on population, total 300 seats(E Pak 165, 4units of W Pak 135). Upper house to consist of 50 seats to be divided into 5 constituent units (10 each, E Pak, Punjab, NWFP, Sindh, Balochistan). It was considered the most suited proposal. In the meantime, the assembly passed a bill in Sep 1954 which made Governor General (GG) act on the advice of the PM. Ghulam Muhammad, the GG dissolved the assemblies on 24 Oct 54, his decision was upheld by the Supreme Court (SC) headed by Justice Munir under the law of necessity. However, Justice Cornelius wrote a note of dissent. Finally, PM, Muhammad Ali took the task of framing the constitution and Hussain Shaheed Suhrawardy of Awami League agreed to E Pak and W Pak both as one unit, unicameral legislation to be elected based on parity between the two provinces. National Assembly had 300 seats, equally divided.

The constitution of 1956 was passed on 29 Feb 56 to be effective from 23 March 1956. It was a parliamentary form of government; no law could be made against the teachings of Islam. The Dominion became the Islamic Republic of Pakistan after about nine years. Iskandar Mirza who was GG became the first President, and Chaudhry Muhammad Ali, PM.   The constitution-making was delayed mainly because political elites from W Pak were not inclined to give democratic rights to E Pak.  Finally, Awami League sacrificed their right. It is pertinent to mention that India had adopted the constitution on 19 November 1949 to come into force on 26 January 1950. It has never been abrogated or held in abeyance. The constitution of Pakistan could last only for two and half years. President Iskandar Mirza imposed martial law on 7 Oct 58.

The main reason, the constitution is unworkable and rampant corruption. Gen Ayub Khan C-in –C, Army deposed Iskandar Mirza and became president and CMLA on27 Oct 58. The second constitution of 1962 framed by president Ayub Khan’s government was a presidential form of govt. President head of state, as well as Chief executive. Unicameral legislation. Introduced Basic Democracy (BD) system, 40,000 from each province. The national assembly also had equal 150 members from each province.  The BD members were the electoral college for national and provincial assemblies, and the president. The president became autocratic, with less provincial autonomy, more powers with the center. This constitution was abrogated by martial law imposed by Gen Yayah Khan on 25 Mar1969.This was declared usurper by the SC. Justice Hamood ur Rehman had written in the Asma Jilani case (PLD 1972SC 139) that Gen Yahya Khan had no authority to abrogate the constitution of 1962 and impose martial law. Gen Yahya was not tried. He died on 10 August 1980 and was buried with military honors. If he had been tried and given punishment accordingly the chances of subsequent martial laws may have been considerably reduced. After the 1971 war, E Pak became Bangladesh and Zulfikar Ali Bhutto assumed power as the president and CMLA on 20 Dec 1971and continued till 15 April 1972 when the National Assembly adopted the India Act of 1935 with amendments as an interim constitution.

A committee comprising 25 national assembly members framed the constitution which was adopted with consensuses on 11 April to be effective from 14 August 1973.It is bicameral legislation; Senate has equal representation of four federating units total of 104 members. As per article 59 of the constitution, it includes four each, women, technocrats/ ulema, and one each non – Muslim from the 4 provinces. The provision for representation of all segments of the society has been considered. The strength of national assembly members is as per the population of the provinces. By article 51 of the constitution total seats are 342, which include,272general seats, whereas 60 are reserved for women who are elected through a proportional representation system of political parties from each province. Ten seats are for the non-Muslims who are elected through a proportional representation system of political parties from the whole country.

In the past 73 years, Pakistan has been governed by five constitutions (twice by the India Act of 1935, 1956, 1962, and 1973 in vogue), and four martial laws (1958, 1969, 1977, and 1999), and once emergency was imposed by Gen Pervez Musharraf, acting as Chief of the Army Staff, on 3 November 2007, and issued a Provisional Constitutional Order. This was declared illegal by SC, the case was tried in the court of law, the punishment was awarded, but the final decision by the SC is pending.  Four times elected governments were dismissed under article 58, 2(b) of the constitution, which gave discretionary powers to the president to dissolve the elected government. Gen Zia ul Haq dismissed the govt of Muhammad Khan Junejo in May 88, Ghulam Ishaque Khan(GIH) of Benazir Bhutto first govt on 5 Aug 90, and her second by president Farooq Legahari in Nov 96. President GIK in Jul 93 of Nawaz Sharif. These PMs had served only for two and a half years approx. This clause has been finally removed by 18th amendment on 8 April 2010.

From the foregoing, it is evident that we have made a lot of experiments to frame the constitution, and tried almost all methods of governance. Infect the country has been mostly governed by hit and trials. Now there is a lobby which propagates that the presidential form is more suited because it caters to include technocrats as ministers who are not members of the Senate or National Assembly. As already mentioned there is a provision of technocrats and Ulema to be nominated by political parties in the Senate. Moreover, in the 60 reserved seats of women and 10 non-Muslims in the national assembly technocrats may be nominated by the political parties. Besides, the PM can have advisors and special advisors in his cabinet who are non-elected. According to the website of the national assembly, the present government has 27 federal ministers, 3 ministers of state, 4 Advisors, and 16 Special Advisors (total 40). Probably this size of the cabinet has not been observed before. It is a burden on the exchequer.  Advisors and Special Advisors are non-elected, mostly enjoy the status of a federal minister or minister of state. Hence there is a provision to include technocrats who are non-elected as in the presidential form of government. Therefore, the need of the hour is governance in the true spirit of the present constitution.  Make the three pillars of the state, judiciary, legislation, and administration strong. Major other institutions are required to be strengthened to work strictly under the constitution, rules, regulations, and the oath taken by various authorities/personalities.

Dr. Anjum Sarfraz
Dr. Anjum Sarfraz
the author is Cdre (retd) former Senior Research Fellow, at NIMA And SVI Islamabad