The Constitution of PakistanAuthor(s): G. W. ChoudhurySource: Pacific Affairs, Vol. 29, No. 3 (Sep., 1956), pp. 243-252Published by: Pacific Affairs, University of British ColumbiaStable URL: http://www.jstor.org/stable/2753474 .Accessed: 20/03/2011 07:19

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The Constitution of Pakistan G. W. Choudhury

A FTER NINE YEARS of effort, Pakistan has been successful in framing a con- stitution, implemented on March 23, i956, amidst great enthusiasm all

over the country. The problem of constitution-making for Pakistan had be- come a nightmare giving rise to the worst forms of political rivalry, threaten- ing the unity of the country and creating a widespread sense of frustration and disappointment among the people. When the First Constituent Assembly of Pakistan had nearly completed its task of framing the constitution, it was dissolved in October I954 on the ground that it had lost "the confidence of the people." The result was that the country after seven years of independence was still without firm political institutions. The action of the Governor-Gen- eral at that time in dissolving the Constituent Assembly went a long way towards killing the faith that solid political institutions would be created. Fears were expressed that the democratic process was not yet for Pakistan. Pakistan's prestige abroad was adversely affected by her inability to produce a written constitution. Perhaps the unhappiest part of the story was that the quarrels of Pakistani politicians over constitution-making had put into shadow the positive achievements of the nation in building an economic foundation for itself.

The new constitution as adopted by the Second Constituent Assembly on February 29, I956, is lengthy, detailed and rigid. It contains 234 articles, di- vided into I3 parts and 6 schedules, and may thus be compared with the Indian constitution, which is perhaps the largest and most detailed in the world. For its length, we find several explanations: (i) the aim was to have it based on Islamic principles and the provisions relating to the Islamic char- acter of the constitution occupy considerable space; (2) being a federal con- stitution its provisions cover not only the federation but also the units (Parts IV and V dealing with federal and provincial constitutions respectively); (3) the relations between the federation and the units are complicated and their description occupies considerable length; (4) special provisions have been made for tribal areas, backward classes (Part XII); (5) some matters which could have been dealt with by ordinary legislation (such as the organi- zation of the judicial authorities) have been included in the constitution (the organization of the Federal Court and the judiciary of the states being de- scribed in 3i articles); (6) there were problems which the framers of the

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constitution thought fit to include in the constitution, such as the public services and the official language of the federation); (7) it was also found necessary to include emergency provisions (Part XI); (8) the framers of the constitution thought it necessary to include not only a lengthy Bill of Rights but also Directive Principles of State Policy.

A lengthy constitution is sometimes regarded as a defect, the golden rule for constitution-makers usually being never to put in anything which can safely be left out. But the framers of the constitution in Pakistan were not entirely free in their choice whether they should make the constitution short and flexible or lengthy and rigid. The interim constitution had been based on the Government of India Act of I935 and the new constitution had to maintain some continuity of tradition. In fact many provisions of the new constitution are taken from that Act, which itself was the largest ever passed by the British Parliament. Moreover, the framers were confronted with a number of complicated issues (such as the relation of state and religion, the East and West Pakistan controversy, and the problem of religious minori- ties) which could not safely be left out.

Pakistan has been defined as an "Islamic Republic" wherein "the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, should be fully observed."' The most difficult problem faced by the framers of the constitution was to determine the exact character of the new constitution. The vast majority of the people of Pakistan are Muslims and their aspiration to preserve and foster Islamic values was the main justification for insisting upon the partition of India and setting up of two states. It has been argued that implicit in the demand for Pakistan was the demand for an Islamic state. Liaquat Ali Khan (the first Prime Minister of Pakistan), while introducing the Objectives Resolution in the First Constituent Assembly in March I949, said that Pakistan was founded because the Muslims of the Indian sub-continent wanted to build up their lives in accordance with the teaching and tradition of Islam.2 But though there was general agreement among the Muslim groups on the grounds of conviction as well as political expediency that the new constitution should be based on Islamic principles, the different groups held divergent views about the exact nature and concept of an Islamic constitution. The conflict arose particularly between the ulema (the religious teachers) and the intellectuals on the definition of an Islamic constitution. Some ulema expected that the constitution would not incor- porate any new ideas and would strictly follow the pattern of the republic of the Early Caliphs, in the 7th century. They held that Islamic law is complete

'Preamble to The Constitution of the Islamic Republic of Pakistan. Karachi: Ministry of Law, Government of Pakistan, I956.

2 Pakistan, Constituent Assembly Debates. Karachi: Government of Pakistan Press, I949, Vol. V, No. I, pp. 1-2.

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The Constitution of Pakistan and merely requires interpretation by those who are experts in it. The framers of the constitution obviously could not accept this narrow concept of the Islamic constitution. They tried to produce a synthesis of modern needs and Islamic principles, believing that the requirements of Islam could be met without departing from the essentials of a modern democratic state. In fact, the new constitution is mainly a collection of secular laws for the administra- tion of a democratic form of government. The Islamic provisions of the con- stitution are rather general, and do not satisfy the ulemc's concept of an Islamic state. The identification with Islam in the new constitution begins with the preamble "in the name of Allah" and continues in several articles and the Directive Principles of State Policy (Part III) as follows:

(i) Steps shall be taken to enable the Muslims of Pakistan individually and collectively to order their lives in accordance with the Holy Quran and Sunnah.

(2) The state shall endeavour, as respects the Muslims of Pakistan, (a) to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah; (b) to make the teaching of the Holy Quran compulsory; (c) to promote unity and observance of Islamic moral standards; and (d) to secure the proper organization of Zakat, Wakfs and mosques.

More important, however, is Article i98 which lays down that "no law shall be enacted which is repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah" and "existing law shall be brought into conformity with such injunctions."

The constitution provides that the president shall appoint a commission to make recommendations as to the measures for bringing existing laws into conformity with the injunctions of Islam and as to stages by which measures should be brought into effect and to compile, in a suitable form for the guid- ance of the national and provincial assemblies, such injunctions of Islam as can be given legislative effect.

It may be noted that the Islamic provisions of the constitution do not apply to the non-Muslim citizens of Pakistan. Many of these objected to the reference of Islam in the constitution and some minority leaders even as- serted that under an Islamic constitution their position would be that of second-class citizens (Dhimmis). But nothing like that can be found in the constitution. With the exception of one clause which says that the president must be a Muslim, there is no discrimination against any citizen on the grounds of religion, colour, race or nationality. The non-Muslims are equally guaranteed all the fundamental rights of the citizens. There are several refer- ences in the constitution to the protection of minority rights. How far those safeguards and rights will be realized in practice obviously depends on many factors.

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Pacific Afairs The constitution exhibits all the normal characteristics of a federation: a

written constitution, a dual polity, distribution of powers between the na- tional and the state governments, and a supreme court. Pakistan has from the beginning been established constitutionally as a federation, the Government of India Act 1935 having provided the structure. As early as i949 the First Constituent Assembly decided in favour of a federal form of the constitution. That decision was regarded as the "dictate of geography" and was non-con- troversial, but there was acute dissension between East and West Pakistan political leaders over the details of the federal structure. This dispute, which was, in the last resort, a Bengali-Punjabi controversy, was more than any- thing else responsible for the delay in adopting the constitution. Pakistan is geographically unique, consisting of two parts separated by a thousand miles of Indian territory. East Pakistan comprises only one-seventh of the total area but its population exceeds that of West Pakistan. Geographical separation is aggravated by other differences in racial background, language, habits of life and culture. The people of the western region speak different languages such as Punjabi, Pushtu, Sindhi, Baluchi, yet most of them look upon Urdu as their common linguistic heritage; in East Pakistan, Bengali is the cherished language. West Pakistan is predominantly Muslim; East Pakistan has im- portant non-Muslim minorities.

The problem of federal organization, therefore, became extremely compli- cated in Pakistan. The first conflict relating to the federal structure arose over the number of representatives in the Federal Legislature from East and West Pakistan respectively. After several years of acute controversy, the framers of the constitution agreed that there should be parity of representation between the two wings. The new National Assembly consists of 300 members, half elected by constituencies in the East and half by constituencies in West Pakistan (Article 43). Unlike most other existing federations, the constitu- tion provides for a unicameral system. In the draft constitution as passed by the First Constituent Assembly, there was provision for a second chamber but the Second Constituent Assembly opted in favour of a single chamber.

The distribution of powers between the central and provincial govern- ments was another subject of great controversy. East Pakistanis demanded complete autonomy. The new political party of East Pakistan, the United Front, when it was first organized in 1954, demanded that the centre should retain only three powers-defence, foreign affairs and currency. Obviously this demand was fantastic and when the United Front entered the Second Constituent Assembly and had its chance to participate in writing the con- stitution, it also realized the absurdity of its demand. The system of distribu- tion of powers as finally adopted does not differ much from the scheme adopted by the First Constituent Assembly. It gives ample scope to East Pakistan's demand for self-rule but the centre has been given adequate

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The Constitution of Pakistan powers to discharge its responsibilities and its powers are not confined to three items only. The actual distribution of powers and the administrative relations between the centre and the provinces have been based on the Gov- ernment of India Act of I935. As in that Act, the powers are divided into three lists-provincial, central and concurrent. This device of three lists was made by the British constitutional experts to overcome the differences be- tween the Hindus and Muslims over the distribution of powers under the Act of 1935. The framers of the Pakistan Constitution found this method of great use in reaching a compromise between the school of provincial rights and the school of national rights. In the new constitution, the federal gov- ernment has been given jurisdiction in controlling defence, foreign affairs, currency and banking, foreign trade and many other subjects (the federal list including 30 items). The provincial list is the largest and includes 94 items. Besides these, residuary powers are also vested in the provinces. Rail- ways and communications which are usually given to the federal authority have been transferred to the provinces. Contrary to the general tendency in other federations to increase the powers of the central government, the Pakis- tan constitution makers seem to have taken care to make the provinces more powerful. This was due to the peculiar circumstances prevailing in the coun- try. Rightly or wrongly, East Pakistan would not accept any constitution which would not meet its demands for self-rule. It is rather strange that de- mands for maximum autonomy came first from the largest unit, namely East Pakistan which, on numerical grounds, should have had no fear of domina- tion. But this fear was already deep-rooted in East Pakistan, where the people felt they were being neglected by the central government and feared that any increase in its powers would mean a corresponding decrease of their own influence.

The framers of the constitution had to decide another matter of far- reaching importance, namely the relation between the executive and the legislature. Existing federal systems operate under a variety of executive sys- tems ranging all the way from the parliamentary type employed in Australia and Canada through the presidential system of the United States to the col- legial or council system of Switzerland. The constitution makers in Pakistan decided in favour of the parliamentary type both at the centre and in the provinces. Some, who believed that the parliamentary type was not suited to Pakistan, argued that in the absence of two strong, stable and responsible parties, the parliamentary type, wherein the real executive authority is vested in a cabinet responsible to the legislature, would become a farce and stable government would be unattainable.3 The framers of the constitution, how- ever, expressed themselves in favour of the parliamentary type in the hope

3 See First Pakistan Political Science Conference. Lahore: Punjab University Press, i950, PP. 7-8.

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Pacific AL/airs that it would ensure a better relationship between the executive and the legislature. Moreover, under the Interim Constitution, the country had al- ready been accustomed to a parliamentary system.

Those federal states which have a parliamentary system have found it necessary to provide for a separate Head of the State who exercises certain ceremonial and formal functions. In most important matters, he acts on the advice of the cabinet. In the new constitution of Pakistan, the executive authority of the federation is vested in the president and must be exercised by him in accordance with the constitution (Article 39). The president is to be elected by an electoral college consisting of the members of the National Assembly and the Provincial Assemblies (Article 32). A cabinet of ministers with a prime minister as its head is to aid and advise the president in the exercise of his functions and the president must act in accordance with the advice of the cabinet except in cases where he is empowered by the constitu- tion to act in his discretion. Furthermore, the prime minister holds office "during the pleasure of the president" but the Constitution specifically lays down that the president shall not exercise this power unless he is satisfied that the prime minister does not command the confidence of the majority of the members of the National Assembly (Article 37). Thus the parliamentary system in Pakistan has been established by statute and not merely by con- vention as in England and in some other Commonwealth countries. It is a safe assumption that the framers of the constitution did this to prevent the repetition of acts such as the dismissal of the Nazimuddin Cabinet in April 1953 or the dissolution of the parliament in October 1954. In the new consti- tution, the president is largely a constitutional figurehead. The only important task with which he is entrusted is the selection of the prime minister and while this is a purely formal task in a clear-cut two-party system, it be- comes a function of great importance when the party situation is not well clarified.

The framers of the constitution laid down certain Directive Principles of State Policy based on social, political and economic justice for the guidance of the legislature as well as the governmental authorities. The idea of the Directive Principles of State Policy is found in the constitution of Ireland, and the Indian constitution also includes a number of such Directive Principles. Part III of the new constitution of Pakistan includes eight Directive Principles, intended to be kept in mind by the federal and provincial legislatures in enacting laws and by the executive in the execution of the laws. These prin- ciples are mostly what the framers of the constitution considered as the basic principles of a new social and economic order but to which they could not give legal effect in the fundamental law of the country. They represent no more than general instructions or recommendations to the legislature and the executive authorities, being mostly in the nature of moral precepts and

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The Constitution of Pakistan economic maxims, unexceptionable in content, having no legal force. They may be used for political criticism but they confer no legal right and create no legal remedies. Section 23 of the constitution clearly states these prin- ciples shall not be enforceable in any court. The disadvantage of including such principles in any constitution is that, though they may represent pious aspirations at certain times and in some circumstances, ideas are constantly changing. The progressive ideas of one generation may be considered re- actionary by the next.

Out of the eight Directive Principles included in the Pakistan constitution, the first two reaffirm the Islamic character of the constitution. The other im- portant Directive Principles are as follows:

(i) The state shall discourage parochial, racial, tribal, sectarian and pro- vincial prejudices among the citizens.

(2) The state shall safeguard the legitimate rights and interests of the minorities including their due representation in the federal and provincial services.

(3) The state shall endeavour to (a) promote the educational and eco- nomic interests of the backward classes and scheduled castes, the people of the special areas; (b) remove illiteracy and provide free and compulsory primary education; (c) make provision for securing just and humane condi- tions of work.

(4) They shall endeavour to secure the well-being of the people irrespec- tive of caste, creed or race by raising the standard of living of the common man, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of the interest of the common man and by ensuring equitable adjustment of rights between em- ployers and the employees and landlords and tenants.

While the Directive Principles of State Policy deal with the positive obli- gations of the state towards the citizens, the section on fundamental rights deals with the negative obligations. It lays down that all the citizens shall have certain rights which the state is debarred from violating in normal times and any law shall be void in so far as it is repugnant to any provisions of fundamental rights. Since the addition of the Bill of Rights to the American Constitution, sections on the fundamental rights of citizens have found their way into a number of constitutions, particularly after the First World War. The framers of the Pakistan constitution followed this practice. Generally speaking, fundamental liberties need not necessarily be protected by law if public opinion is sufficiently articulate, powerful and willing to protect them. But in a country like Pakistan where difficulty of organizing public opinion is greater, a Bill of Rights may be justified. It emphasises that the state exists for its citizens. Further, in a country where there are religious and racial minorities it is even more necessary to prevent the majority from interfering

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Pacific Aflairs with the rights of the individuals, irrespective of caste, creed or religion, through the process of ordinary legislation.

The fundamental rights in the Pakistan constitution include the familiar liberties, such as equality of status, of opportunity and before the law; social, economic and political justice; and freedom of thought, expression, belief, faith, worship, and association. Mere insertion of these fundamental rights in the constitution is not sufficient; an effective and easy method for enforcing them is also necessary. The new constitution of Pakistan gives this function to the supreme court which has the power to issue writs (including habeas corpus, mandamus, prohibition, quo warranto and certiorari) for the enforce- ment of any rights guaranteed in the constitution.

Since only a few months have passed since the constitution was put into effect, it is perhaps too early to predict how well the new constitutional machinery is likely to operate. Yet some recent developments in Pakistan politics must give little comfort to the friends of democracy in Pakistan. Parliamentary governments in both West and East Pakistan have shown cer- tain disquieting features which bode ill for the country's future political sta- bility. Already, as the newspaper Dawn of Karachi has lamented, "the Con- stitution has been reduced to a farce in less than two months. . . . The fact is that today the body politic of Pakistan has been infected with such multiple viruses that mere passage of a Constitution on paper has not proved enough antibiotic to cure it and restore it to normal health."4

In West Pakistan the political crisis began with the decision of the Muslim League (the party which had a clear majority in the West Pakistan Legisla- ture) to oust the "nominated" Chief Minister, Dr. Khan Sahib. The League demanded that its own leader, Mr. Bahadur Khan, be elected the Chief Minis- ter. The Governor of West Pakistan, contrary to well-recognised practices and traditions of parliamentary government, refused to concede the demand of the majority party. His action was severely criticised in certain quarters and was regarded as violating "the letter and spirit of the Constitution of, Pakistan."5 Dr. Khan Sahib (who described himself as belonging to "no party") overnight formed a new party, the Republican Party, on April 23, I956. It has no substantial basis of principle or programme; its stalwarts comprise persons expelled by the Muslim League for indiscipline. Charges of using official pressure to muster support for the Republicans were made against the Chief Minister, Dr. Khan Sahib, and his Cabinet by a majority of opposition members in the West Pakistan Legislature. It was alleged that sweeping changes in the deployment of the Province's police and executive personnel were made for political motives.6 The first trial of strength between Dr. Khan

4Dawn, May 24, i956. 5 Resolution of the Working Committee of All Pakistan Muslim League, April 25, i956. 6Dawn, May I7 and 20, i956.

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The Constitution of Pakistan Sahib and the opposition party took place over the election of the Speaker of the Legislature. The election was held in an unusual manner and the matter eventually went to the Court. Subsequently, Dr. Khan Sahib "managed" to secure the support of twenty members from the Muslim League through ex- pansion of the Cabinet to an unusual size and by other hardly parliamentary methods. The Cabinet was thus saved but the whole episode was a setback in the evolution of parliamentary democracy in Pakistan. The issues involved in the West Pakistan political crisis were clear: on the one side there was a parliamentary majority which demanded its democratic and constitutional right to form the Cabinet and on the other hand was a "nominated" Chief Minister who wanted to stay in power against the decision of the majority members of the Legislature. The Republicans at first wanted to dissolve the Legislature and then "suspend" the constitution and establish the Governor's personal rule. But the Prime Minister, Mohammed Ali, who has given the country the new constitution, refused to concede either of these demands.

"If in West Pakistan Parliamentary Democracy has been reduced to a farce and the administration to chaos, the picture in East Pakistan is no less disheartening, although there the malady is somewhat different."7 In East Pakistan, the United Front, returned to office two years ago with a huge ma- jority, has disintegrated and the rump continued in power for months with- out calling the Legislature together. On May 22, I956, the Finance Minister of East Pakistan was prevented by the Speaker's ruling from presenting the budget estimates to the Legislature which thereafter adjourned sine die and was prorogued by the Governor two days later. On May 26, i956, the Presi- dent of Pakistan, General Iskander Mirza, by proclamation suspended the constitution (under Article I93) and on May 29, he authorised expenditures for East Pakistan for three months. On June i, however, he revoked his proclamation and announced that he was now satisfied that conditions existed in which the government could be carried on in accordance with the provisions of the constitution.

What is to be inferred from this unusual action? Is it merely that by his action of May 29, the President had overcome the constitutional difficulty which had led to the Speaker's ruling? Or that political difficulties have also been solved and that the East Pakistan Cabinet is now more secure against a defeat in the Assembly than before? That seems unlikely for the Cabinet in East Pakistan is as unstable today as it was before. The President's action in revoking his proclamation only a week after it was made was warmly wel- comed by all shades of political opinion in East Pakistan. The opposition party (the Awami League), however, continued to demand the summoning of the Legislature so that the strength of the Cabinet which remained in

7Ibid., June 5, I956

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Pacific Affairs power without calling the Legislature could be ascertained. The Leader of the opposition, Mr. Suhrawardy, referred to the constitutional provision which enjoined a Ministry coming into power to call a session of the Assembly within two months to demonstrate that it enjoyed the confidence of the Legis- lature. At this writing (mid-July) nothing has yet been done and the Ministry is in power without summoning the Legislature. The East Pakistan Assembly is to meet in July to record its view on the electorates, whether they be joint, separate, or joint with reservation of seats for minorities. This is a question which produced much argument and emotion in undivided India and is obviously of great importance for the future of Pakistan, particularly in East Pakistan where there are still several million non-Muslim minorities. But the East Pakistan Chief Minister, Abu Hussain Sarker, seems to wish to defer this matter. His reasons can be understood. With a Cabinet whose composi- tion, and a following whose size, tend to change rapidly, he is not well placed to face the opposition. His tactics seem to be to postpone the summoning of the Legislature as long as he can and then adjourn when the time for the meeting of the National Assembly coincides. Even then possibilities of manoeuvre may not be exhausted as some expedient involving the adjourn- ment of the House without a decisive vote would probably be found.

Floods and famine are threatening East Pakistan today. The army has been called to deal with the food crisis but the army cannot (or ought not to) give the popular leadership which seems indispensable in such an emergency.

While this picture of politics at the provincial level, both in West and East Pakistan, is discouraging, parliamentary democracy has, on the whole, been working more satisfactorily at the centre. A date has been set for general elections-March I957. The Election Commission and Commissioner have been appointed to ensure free and fair voting. The Prime Minister (then Mohammed Ali) assured the country that he was "solemnly pledged to hold elections in the country as soon as technical and legal formalities have been completed."8 The evolution of parliamentary democracy in a country like Pakistan, where political parties have not yet properly been developed and public opinion is not well organized, is likely to be slow and meet with many pitfalls. Much will thus depend on the personal qualities of Pakistan's national leaders.9

Dacca, July I956

8 Morning News (Karachi and Dacca), April 25, i956. 9 The continuing instability of Pakistan's political groupings was dramatized by the sudden

resignation on September 8 of the Prime Minister, Mohammed Ali, who charged that the leaders of the Muslim League had failed to support his programs. He was succeeded on Septem- ber i2 by Mr. Hussein S. Suhrawardy heading a coalition cabinet of his own Party (the Awami League) and of the Republican Party.-Editor.

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