Updated: Saturday February 13, 2010/AsSabt Safar 29, 1431/Sanivara Magha 24, 1931, at 10:58:32 PM

Course Contents:

1.      Constitutional History of Indo-Pakistan from 1947 onwards, including Indian Independence Act 1947, the late constitutions of Pakistan 1956, 1962, and the Interim Constitution of 1972.

Book Recommended:

1.      Constitutional History of Pakistan 1858 – 1995, by A. G. Chowdhry.

2.      The 1973 Constitution of Pakistan by Mazhar-ul-Haq.

Constitutional history starts since quite back, which includes certain reforms. By the Government of India Act, 1858, the governance of India was transferred from East India Company to the British Crown. Later on the Government of India Act, 1935, was enacted in response of growing demand for self-government. The British parliament enacted the Independence of India Act, 1947, which became law on July 18, 1947, but came into force on August 15, 1947. This Act was the base of creation of Pakistan. It was about the dealing of separation or independence and its allied matters. States were at liberty to choose either Pakistan or India, to live with.

By the Government of India Act, 1935, supremacy was transferred to dominions of Britain. It was guaranteed that both India and Pakistan would be at liberty to make constitution and law separately. Legislature of both would be super in their sphere. It was complete succession of British rule, which ceased control of Britain over the sub continent.

States assemblies of both countries had to make constitution for own freely and independently. It ends control of Britain. A Commonwealth organization was framed later which was constituted on the former colonies (dominions). Its membership was not obligatory but optional. Right from the existence of Pakistan the Government of India Act, 1935, was adopted with certain amendments for the time being. And new constituent assembly was designated to make new constitution for Pakistan.

Before independence, veto power was vested to the King or Crown, but now this power was transferred towards Governor General. Agreement or treaties made by Britain were become null and void. Enforcement of them was terminated. Army and civil servants were given liberty to select either Pakistan or India.

Objectives Resolution of 1949: It was felt necessary that before the constitution was drafted, the principles and ideals on which it was to be based, and which were to guide its makers in their great task, must first be clearly defined. For this purpose, on March 12, 1949, the Constituent Assembly adopted a resolution, moved by Liaquat Ali Khan, the then Prime Minister of Pakistan, called the Objectives Resolution. It proclaimed that the future Constitution of Pakistan would not be modeled on European pattern, but on the ideology and democratic faith of Islam, in as much as the Holy Quran is the only true guide to man, both in his private and public life, in social and political affairs. The principles and ideals proclaimed in it are as below:

1.      Sovereignty: Sovereignty belongs to Allah Almighty alone; but He has delegated it to the State of Pakistan through its people, to be exercised as a sacred trust within the limits prescribed by the Quran and Sunnah.

2.      Representation: The State shall exercise its powers and authority through the chosen representatives of the people.

3.      Social justice: The principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, shall be fully observed.

4.      Lives of Muslims: Muslims shall be enabled to order their lives in the individual and collective spheres in accord with the teachings and requirements of Islam, as set out in the Holy Quran and Sunnah.

5.      Minority rights: Adequate provision shall be made for the minorities to profess, propagate and practice their religions, develop their cultures, and safeguards their legitimate interests.

6.      Structure of Pakistan: Pakistan shall be the federal state wherein provincial autonomy is guaranteed through constitution.

7.      Fundamental Rights: Fundamental Rights of freedom, equality, property, expression of opinion, belief, worship, association, etc. shall be guaranteed.

8.      Independence of judiciary: Judiciary shall be independent and shall act according to the provision of the constitution.

Importance of Objectives Resolution: The Objectives Resolution is one of the important and illuminating document in the constitutional history of Pakistan. At the time of moving it, Mr. Liaquat Ali Khan called it “most important occasion in the life of this country, next in importance only to the achievement of independence.”

The importance of this document lies in the fact that it combines the good features of the Western and Islamic democracy. It proclaims the Islamic constitutional principle of the sovereignty of Allah, and combines it with the modern doctrine of popular sovereignty. In the democratic Islamic State of Pakistan, the Muslims will order their lives in accordance with Islamic teaching. Nevertheless, the non-Muslim minorities of Pakistan shall be guaranteed full rights of freedom of religion, worship and culture, especially because Islamic faith itself teaches a generous and just treatment of religious minorities. Lastly, the principle of the independence of judiciary is also asserted.

In view of its basic principles, the Objectives Resolution may be regarded as the beacon-light with guided the framers of our constitution in their supreme but arduous (hard and difficult) task. It proclaimed that in the present day world of warring ideologies, the Islamic State of Pakistan would be a haven of peace, democracy and progress, and that Pakistan would be a democracy not only in political but also in social and economic sense.

The Objectives Resolution was also a happy blend of modernism and Islamism, as against medievalism and Mullahism. These two tendencies in Pakistan’s political life were yet in incipient (initial, basic, beginning) forms. But they were soon to play a greater role in the discussions and debates in the Constituent Assembly and the public. The struggle between these two tendencies was mainly responsible for holding up the adoption of a constitution for a very long period.

First constitution was made in 1956. It had certain Islamic provisions. Some of them are as follows:

1.      Name of country was declared Islamic Republic of Pakistan.

2.      It became obligatory that Head of State, i.e., President would must be Muslim. Non-Muslims were deprived to become head of the Islamic State.

3.      All existing laws contrary to Islam would be turned to Islamic. From now onward no law will be made repugnant to the Islamic provisions. If any law contrary to Islam is enacted can be rebutted and got void through judicial process. Inconsistency of existing law with Islam would result either Islamization (ÅrÍlÖB¿ÝmA) or void.

This constitution was too lengthy consisting 234 Articles, preamble, and 13 chapters. Why it was too long? It was the first constitution of Pakistan and its founders made it fully exhaustive.

Structure of government was parliamentary extracted from British constitution while its judicial supremacy was taken from USA constitution. It was amalgamation of both big powers.

4.      Fundamental human rights were guaranteed with exception of suspension while emergency.

Salient features of the constitution of 1956: It was came into force on March 23, 1956. Some of its salient features are as follows:

1.            Written: It was written as the constitutions of rest of world are written except British Constitution most of which part is unwritten.

2.            Islamic: This constitution was based on Islamic principles.

3.            Unicameral House – Central: Only national assembly of Pakistan was the sole legislature in centre and there was no concept of upper house, which is usually found in the other democratic countries. Only single house was responsible of law making.

4.            Unicameral house – Provinces: Both units of the state, i.e., former East Pakistan (now Bangladesh) and former West Pakistan (now Islamic Republic of Pakistan) also had single house for lawmaking.

5.            Parliamentary form of government: Both assemblies of provinces and national assembly were Electoral College for the election of President. Prime Minister and its cabinet was assisted President. They were elected for five years. President had to act in accordance with the advice of cabinet except where he was specifically empowered by constitution.

6.            Separation of powers: Power was separated among the organs of the state such as legislature, judiciary, and executive. Each organ had to act within the limits prescribed in the constitution.

7.            Division of powers: Powers of centre and units was defined and provinces were free to act within the limits defined in constitution. Provincial autonomy was granted.

8.            Adult franchised elections: Elections were to be held on the basis of adult franchise.

9.            Federal system of government: System of government was federal in which provinces are given autonomy under constitution. Separate lists are provided under this system for lawmaking and every unit is free within the limits prescribed in constitution. Cabinets were answerable to their respective assemblies.

10.        Guarantee of fundamental rights: Fundamental rights were guaranteed in the constitution except under the emergency situtation.

11.        National languages: Urdu and Bengali both were declared as national languages. English was official language.

12.        Name of country: Name of country was decided Islamic Republic of Pakistan.

13.        Powers of High Court and Supreme Court: Both courts were granted powers to issue writs for the enforcement of Fundamental Rights.

Abrogation of 1956 Constitution: The constitution of 1956 proved to be a short-lived one. The first general elections to be held under it were repeatedly adjourned from one date to another, till the Constitution was abrogated on October 07, 1958 and Martial Law was proclaimed. A Martial Law Government, headed by Muhammad Ayub Khan, came to power. It introduced a number of reforms in the country, such as the land reforms. The question is why did the Constitution of 1956 fail to work? We summarize the causes as under:

1.      Lack of popular elections: No election were held under the 1956 Constitution, with the result that the people lost faith in the 80-members Parliament that continued to work after it had framed the constitution.

2.      Undue interference: Undue interference by the president, Sikandar Mirza, with the ministries and political parties. Under the 1956 Constitution, which established a parliamentary system of government, the President was to be a constitutional Head of State, while the Prime Minister was to be the real executive. But the undue interference by the President reduced the Prime Minister to that of a parliamentary secretary of the President. This interference disorganized the proper working of the Cabinet system and ministerial responsibility to the Parliament.

3.      Unstable cabinet: Frequent Cabinet or ministerial changes also put the constitution into abrogation.

4.      Lack of leadership: Lack of leadership both in the government and in the political parties and public.

5.      Undue interference of bureaucracy: The growth of bureaucracy and under interference and influence of the permanent officers in the governmental policy and administration.

6.      Lack of character: The general lack of character in the politicians and their undue interference in the day-to-day administration.

7.      Lack of discipline: Lack of discipline and solidarity in the political parties. Their members frequently changed their loyalties for private ends and personal gains, with the result that political parties became mere coteries of selfish leaders and politicians, without any contact with the people.

8.      Lack of education: Lack of education and public spirit in the electorate.

9.      Corruption: Widespread corruption in political life of the country, with the result that seats in the legislature became investment for acquiring wealth and influence.

Salient features of the constitution of 1962: Some of its salient features were as follows:

1.            Written: This constitution was written as the all constitutions are written except of Great Britain. It was consist on 250 Articles and 5 schedules.

2.            Flexible: Amendments could be made with 2/3rd majority.

3.            Federal system of government: System of government was federal in which provinces are given autonomy under constitution. Separate lists are provided under this system for lawmaking and every unit is free within the limits prescribed in constitution. Cabinets were answerable to their respective assemblies.

4.            Presidential government: All the powers of government were vested to the President. He was all in all. He and his cabinet were not answerable to the legislature.

5.            Unicameral legislature: Central legislature was consisted on one house namely National Assembly. Members of cabinet were not necessarily members of the National Assembly.

6.            Electoral College: Electoral College for the election of President and the members of the assemblies either national or provincial was based on basic democracy. Elections were held indirectly.

7.            Fundamental Rights: At beginning Fundamental Rights were not provided in the constitution but later they were incorporated in the constitution with some exceptions.

8.            Independence of judiciary: Judiciary was independent from the executive.

9.            Principles of policy: First time principles of policy were introduced in the constitution, which were the guided principles for the governments.

10.        Islamic: All the laws inconsistent with Islam or Fundamental Rights were liable to void. Council of an Islamic Ideology was constituted to review the existing laws whether they are in accordance with Islam. If not, they were liable, either void or Islamized.

11.        National languages: Urdu and Bengali were declared national languages with the provision of English as official language until the arrangements are made for making Urdu and Bengali as official languages.

12.        Basic democracy: A new system of basic democracy was introduced in place of popular local government system. Members of basic democracy were responsible to elect President.

13.        Council of Common Interests: It was constituted to protect the interest of federation and provinces.

14.        Capital territory: Federal capital was Karachi, which was too congested area. Islamabad was developed and selected as federal capital.

Breakdown of 1962 constitution: Constitution of 1962 also did not last long. Various factors led to its failure, such as:

1.      Autocracy: One of the important factors was the growing autocracy of President Ayub Khan, with which the people became increasingly unhappy.

2.      President-ship of Ayub Khan: It was especially so after the general election of 1965, during which Ayub Khan got himself elected as President. People felt that his election was not legitimate.

3.      Tashkent Declaration: Popular dissatisfaction became all the more greater after the Tashkent Declaration of 1966, in which Ayub Khan was believed to have jeopardized the national interest of Pakistan, especially in regard to the Jammu and Kashmir Dispute with India. In West Pakistan, Z. A. Bhutto, who was then the Foreign Minister in Ayub Khan’s Cabinet, led popular discontent. He resigned his office after the signing of the Tashkent Declaration on the plea that Ayub Khan had surrendered Pakistan’s interests by signing it.

4.      Lack of provincial autonomy: In East Pakistan, popular discontent was not on question of foreign policy but on that of provincial autonomy. Sheikh Mujibur Rehman, the leader of the Awami League, led it.

5.      Agitation: Agitation was started in both East & West Pakistan and students played key role in decline of Ayub government.

6.      Martial Law: Martial was enforced which also resulted in failure of the constitution of 1962.

7.      Lack of check & balance: Presidential system of government was adopted keeping in view of its successfulness in America. America has check & balance in its system whereas its lack-ness put it into end.

8.      Unlimited powers of President: Unlimited powers were granted to President and there was not check & balance over his powers which results it failure.

9.      Difficult impeachment of President: Impeachment criteria which was suggested in constitution for President, was too difficult.

10.  Concentration of wealth in few hands: In result of agricultural & industrial reforms wealth was concentrated in few hands which created unrest among the poor and labour class.

11.  Inflation: Due to mismanagement prices of life commodities were gone high thus out of the reach of common person who took part in agitation against Ayub government.

Comparison between constitutions of 1956 and 1962: Both constitutions were to some extent divergent. Examples are as follows:

1.      Form of governments: Under the provisions of the constitution of 1956, system of government was parliamentary while it was Presidential under constitution of 1962.

2.      Method of election: Members of the government were elected on the basis of direct election under 1956 constitution while method of indirect election by basic democracy members was adopted under the 1962 constitution.

3.      Answerability of the government: Prime Minister and his cabinet was responsible to answer before legislature under 1956 constitution while such responsibility under the constitution of 1962 was abandoned.

4.      Fundamental Rights: Fundamental Rights were guaranteed under 1956 constitution while they were not provided under 1962 constitution when the constitution was framed. Later on they were incorporated in constitution with some exceptions.

5.      Lists of lawmaking: Three lists were provided under 1956 constitution for law making. They were consisted on federal, concurrent, and provincial lists. Federal law had to prevail in contravention of provincial law. Only one list was provided under 1962 constitution for the lawmaking of central legislature. Residuary powers were vested to provincial government.

6.      Selection of cabinets: Under Constitution of 1956 cabinet was selected from inside of the parliament. There was not restriction to select the cabinet from inside the parliament under Constitution of 1962. In Presidential system of government cabinet can be selected from outside parliament.

7.      Promulgation of ordinance: Ordinance made by President in emergency or during the inability of the national assembly was put before the national assembly when it was in session for onward enforcement under 1956 constitution. It was unnecessary to present before national assembly for recognition and just “approval” was sufficient for its conversion into law.

8.      Principles of policy: Principles of policy were not provided under Constitution of 1956 whereas they were provided under Constitution of 1962. They are guiding principles of Islamic government.

9.      Selection of Cabinet: Under Constitution 1956 Cabinet was selected from parliament whereas president was not bound to select cabinet from parliament only. He has power to take ministers from outside the parliament.

10.  Council of common interest: There was no concept of Council of Common Interest under Constitution of 1956. It was constituted under Constitution of 1962.

11.  Capital territory: Karachi was the federal capital under Constitution of 1956. Under Constitution of 1962, Islamabad was selected as federal capital.

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