Constitutional Development of Pakistan from 1947 to Onward

Constitutional Development of Pakistan from 1947 to Onward

Independence Act 1947. Under the Indian Independence Act of 1947, India and Pakistan were granted dominion status with separate Governor-Generals appointed by the British Crown. The Act empowered their legislatures to make laws and draft their Constitutions. With the British Crown's responsibilities over these Dominions ending, the office of the Secretary of State for India was abolished. The 1935 Government of India Act was adopted as an interim Constitution until new ones were framed, with legislative assemblies allowed to modify it as needed. The Act received Royal Assent on 18th July 1947 and took effect on 15th August 1947, ending British sovereignty over the two nations.

Interim Constitution. 

Under Article 8 of the Independence Act, 1935 Act of India was adopted as the Interim Constitution of Pakistan. Certain features of this Act later bore deep imprints on the perceptions regarding constitution-making in Pakistan. Hence, the issues such as federal structure and the Pattern of Division of Powers, role of the chief executive and method of voting etc were tackled in the light of this Act. Certain important features of the Interim Constitution, which had a bearing on the constitutional development, are the following:

Federal Structure

Pakistan adopted a federal structure from its British political legacy, granting provinces autonomy in administrative, fiscal, and legislative matters. This autonomy was the result of decades of constitutional development under British rule, with safeguards against central government interference. The new Act divided powers into three lists: central, provincial, and concurrent subjects, while residuary powers were assigned to the Governor General. The Congress had long advocated for residuary powers to go to the central government, whereas the Muslim League favored assigning them to provincial governments. To limit residuary matters, the Governor General was authorized to delegate legislative powers on unspecified subjects to any provincial assembly.

Powers of Governor General

During the early British rule in India, the Governor General held extensive authority, retaining significant powers under the 1935 Act of India. However, the interim order of 1947 repealed the Governor General's powers of "Discretion" and "Individual Judgment" from the 1935 Act. Despite this, Quaid-e-Azam, as the first Governor General, wielded considerable influence due to his role as the nation's Founding Father. With Kh. Nazim-ud-Din's tenure, the Governor General transitioned into a constitutional head, with actual authority shifting to the Prime Minister.

Under the Interim Constitution, the Governor General served as the British Crown's representative and held responsibilities as the head of government and supreme commander of the armed forces. While influential in legislative affairs, he was expected to act on ministerial advice within a parliamentary system. The Governor General appointed the Prime Minister and other ministers, who served at his discretion unless they lost his confidence. Additionally, the Governor General could summon, prorogue, or dissolve the federal legislature. This role mirrored the British system, where such powers constitutionally belong to the Crown but are exercised by elected representatives in practice.

Method of Election

Under 1935 Act of India, separate electorate was adopted as it was kept intact under the Interim Constitution. Accordingly, separate electoral districts were formed for Muslims and Hindus in undivided India. But after the creation of Pakistan, Hindu minority of East Pakistan opposed separate electorate and this issue was much debated in the First Constituent Assembly of Pakistan.

First Constituent Assembly

The First Constituent Assembly elected Quaid-e-Azam as its first President on 11th August 1947. After the death of Quaid-e-Azam, Maulana Tameez ud din became the President of the Assembly. Under Independence Act, the Constituent Assembly had to perform two important functions. It was entrusted with the task of framing the new Constitution and secondly, it had to ensure law and order. The total strength of the Assembly was 69 which was later raised to 79, and later some new seats were created, allocated to Bahawalpur, Baluchistan and Tribal areas.

Objectives Resolution

The first step towards the framing of the Constitution was taken by Constituent Assembly in March 1949 when it passed a Resolution on the “Aims and Objectives of the Constitution”, popularly known as the Objective Resolution. It laid the foundation of the Constitution and indicated the broad outlines of its structure.

• The Resolution was moved by Prime Minister Liaquat Ali Khan and the leading members of its cabinet on March 7, 1940 in the Assembly. It was passed on March 12, 1949.

 • Out of 75 members of the assembly, 21 voted against it. Opposition participated in the debate but All debates and the amendments proposed by minority members were rejected.

1. Sovereignty: Sovereignty over the entire universe belongs to Almighty Allah alone.

 2. A sacred trust: The 2nd principle is an extension of the first which says that the authority which He has delegated to the state of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust.

 3. The constitution: The Constitution will be framed for sovereign, independent state of Pakistan.

4. The representatives of the people: The state shall exercise its power through the representatives of the people. Principles of Democracy, freedom, equality, tolerance and social justice as enunciated by Islam will be fully observed.

 5. Islamic principles: Muslims shall be enabled to organize their lives in accordance with the teachings and requirements of Islam as set out in the Quran and the Sunnah.

6. Minorities: The 7th principle outlined in the OR of March 1949 is that the minorities will have freedom to freely profess and practice their religions and develop their cultures.

 7. Human rights: The 8th principle is very similar to the 7th that says Provisions for safeguarding the legitimate interests of minorities, backward and depressed classes. So in addition to the minorities the OR was also talking about the backward and the depressed classes.

 8. Federation: Pakistan shall be a Federation with autonomous units.

 9. State’s sovereignty: State’s sovereignty and territorial integrity will be protected.

 10. International norms: People of Pakistan should have an opportunity to prosper and to attain their rightful place in the comity of nations and make a contribution towards international peace progress and the happiness of humanity

Formation of Committees

Following the approval of the Objectives Resolution, the Constituent Assembly formed various committees to aid in constitution-making, with the Basic Principles Committee being the most significant. This committee, comprising 24 members, was tasked with drafting the Constitution based on the Objectives Resolution. It established three sub-committees:

1. Sub-Committee on Federal and Provincial Constitutions and Distribution of Powers.
2. Sub-Committee on Franchise.
3. Sub-Committee on Judiciary.

Additionally, a special committee called Talimat-i-Islamia, consisting of esteemed scholars, was created to provide ideological guidance. The committees were supported by experts and technocrats and were granted privileges to conduct inquiries and visit different locations for firsthand knowledge. The Basic Principles Committee presented its Interim Report in September 1950 and its Final Report in December 1952.

First Report 

The Interim Report of the Basic Principles Committee, submitted on 28th September 1950, proposed several key recommendations:

1. Parliament Structure: The Central Assembly was to have two houses elected for five-year terms. The upper house would represent provinces on a parity basis, while the lower house would be a popular assembly. Both houses would hold equal powers and jointly elect the President for a five-year term, with a third term disallowed. The President could be removed by a two-thirds majority of the Central Assembly.
2. System of Government: A parliamentary system was recommended, where the Cabinet would be accountable to the Parliament. Provincial governments were to follow a similar structure, with governors appointed by the President and acting as the administrative heads of provinces. Provincial Assemblies, unicameral in structure, would elect ministers to form Cabinets led by Chief Ministers, accountable to the Assemblies.
3. Residuary Powers and Judiciary: Residuary powers were to be assigned to the provinces within the federal structure. The federal court was tasked with interpreting the Constitution.
4. Constitutional Amendments: The amendment process was designed to be rigid, making changes to the Constitution more challenging.

Reaction

The Interim Report of the Basic Principles Committee was incomplete and failed to address critical aspects of the future constitution, leading to widespread criticism. Pro-Islamic factions opposed it for lacking sufficient provisions for the Islamization of the system. Members from East Pakistan were particularly displeased, arguing that the Report marginalized East Pakistan’s majority population and turned it into a permanent minority.

The controversy stemmed from recommendations that the upper chamber of Parliament be based on parity, which favored West Pakistan, despite East Pakistan’s slightly larger population. The proposal to make Urdu the official language also drew strong condemnation from East Pakistan’s political circles. Consequently, the Report faced disapproval from multiple quarters.

In response, Prime Minister Liaquat Ali Khan postponed discussions on the Report and invited public feedback. A sub-committee was formed to review the proposals and submitted its findings in July 1952. However, before the Basic Principles Committee could finalize the second report, Liaquat Ali Khan was assassinated in October 1951. Khawaja Nazim-ud-Din, the new Prime Minister, inherited the responsibility of preparing a revised report.

Meanwhile, a provincial convention in East Pakistan developed alternative proposals, reflecting growing constitutional debates, particularly in East Pakistan, where dissatisfaction with the Report had heightened political tensions.

Second Report

The Second Report of the Basic Principles Committee, submitted by Khawaja Nazim-ud-Din on 22nd December 1952, presented significant recommendations for the proposed constitution of Pakistan. Key points included:

1. Bicameral Legislature:
• The Federal Assembly was to have two chambers:
• Upper Chamber (Senate): Representing the provinces, comprising 120 members, with 60 seats allocated to East Pakistan and 60 seats to West Pakistan. The West Pakistan seats were further divided among its four provinces.
• Lower Chamber (National Assembly): Consisting of 400 members, with equal representation (parity) between East and West Pakistan in a 50:50 ratio.
2. Power Distribution:
• The Lower Chamber was to hold more authority, as the central cabinet would be accountable to it.
3. Election of the President:
• The President of the Republic would be elected for a five-year term by both Houses of Parliament.
• The President was constitutionally required to be a Muslim.

Reaction

The Second Report of the Basic Principles Committee, submitted in December 1952, faced strong opposition from Punjab politicians. They objected to the allocation of equal representation in the Upper Chamber for East Pakistan and the provinces of West Pakistan, as it gave East Pakistan an advantage. They demanded population-based representation in the Lower Chamber and parity in the Upper Chamber.

Amid growing regionalism and the weakening of the Muslim League, the Second Report was postponed indefinitely. On 16th April 1953, Governor-General Ghulam Muhammad dismissed Prime Minister Khawaja Nazim-ud-Din's Cabinet, and Muhammad Ali Bogra was appointed as the new Prime Minister, taking on the responsibility of constitution-making.

Muhammad All Formula

To resolve the constitution-making deadlock, Muhammad Ali Bogra proposed a formula accepted by Punjab and Bengal as a compromise. It included:

1. Bicameral Legislature:
• Upper House: 50 seats, with 10 each for Punjab and East Pakistan, and 30 seats for West Pakistan's regions.
• Lower House: 300 members, with equal representation for East and West Pakistan.
2. Supreme Court:
• The Supreme Court would evaluate laws based on Shariah, instead of a Board of Ulema.

The Constituent Assembly approved the Basic Principles Committee Report with minor modifications on 21 September 1954. Hence the draft Constitution was finally approved and the Assembly completed its long-standing task. To the surprise of every one, the Governor General dissolved the Assembly on 24th October, 1954.

Action of the Governor General

During the constitution-making process in Pakistan's first Constituent Assembly, serious divisions emerged, particularly between members from Punjab and Bengal, causing instability within the Muslim League. The Governor-General, Ghulam Muhammad, exploited this situation and dissolved the Assembly, citing that it had failed to deliver a constitution despite significant time passing. He argued that the Assembly had lost its representative character as conditions had changed since its election.

However, the draft constitution had already been completed and approved, and Prime Minister Muhammad Ali Bogra had set 25th December 1954 for its implementation. The Governor-General's decision was seen as politically motivated and a setback to democracy.

Additionally, the Muslim League's defeat in East Pakistan's 1954 provincial elections weakened its legitimacy. The victory of the Joint Opposition Front further justified the Governor-General's action. The newly elected provincial assembly called for the resignation of Muslim League members in the Constituent Assembly. On 24th October 1954, the Governor-General dissolved the Assembly and asked Muhammad Ali Bogra to form a new Cabinet, marking his second term as Prime Minister.

The New Cabinet

 The new Cabinet formed by Muhammad Ali Bogra in 1954 included two key military figures: Major General Sikandar Mirza, former Governor of East Pakistan, and Ayub Khan, appointed as Defence Minister. Their inclusion marked the beginning of military involvement in Pakistan’s political affairs, signaling a shift towards military influence in politics.

The Cabinet also included Dr. Khan Sahib, a former Congress politician. It was made accountable to the Governor-General, Sikandar Mirza, who, in a press conference, declared that Pakistan's people lacked the necessary capabilities to run democratic institutions. As a result, he advocated for a "Controlled Democracy" in Pakistan, marking a significant departure from the ideal of full democratic governance.

Constitutional Dispute

 Maulana Tameez-ud-Din, the former Speaker of the dissolved Constituent Assembly, challenged the Governor-General’s actions—the dissolution of the Assembly and the formation of the new Cabinet—in the Sindh Chief Court. The full bench of the Sindh Court ruled in favor of Maulana Tameez-ud-Din, stating that the Governor-General had no constitutional power to dissolve the Assembly.

However, the government appealed the decision to the Federal Court. The Federal Court overturned the Sindh Court's ruling, declaring the Governor-General's actions valid and affirming the dissolution of the Assembly.

Constitutional Crisis

 As an implication of the Federal Court's decision, all such laws operative since 1948 on the statute book became unconstitutional as those were implemented without the authorization of Governor General, Hence almost six laws on statute book became invalid, pushing the country into a constitutional crisis. Six days after the judgment of the Federal Court, the Governor General gave a legal cover to these law by, promulgating his emergency powers and thereby all the affected laws were given legal protection.

Second Constituent Assembly

On 10th May 1955, Governor-General Ghulam Muhammad summoned a Constitutional Convention of 60 members, later expanded to 80. The members, elected by the Provincial Assemblies, were tasked with completing the constitution-making process and functioning as the Federal Legislative Assembly. The Convention gave equal representation to both East and West Pakistan. The Federal Court endorsed this move as legal but recommended renaming it the Constituent Assembly.

In the 1955 elections, the Muslim League suffered a major defeat in East Pakistan, securing only 10 out of 309 seats in the Provincial Assemblies. This resulted in the League having just one member from East Pakistan in the Central Assembly. While the League won several seats in West Pakistan, it did not have a clear majority in the Constituent Assembly, which had 80 members. The League formed a coalition government with the United Front, led by Ch. Muhammad Ali.

The main task of the Second Constituent Assembly was to validate laws made invalid by the Federal Court’s decision. It achieved this by securing legal cover through an Ordinance issued by the Governor-General.

 

West Pakistan as One Unit

An important achievement of the Second Constituent Assembly was the creation of One Unit in West Pakistan. Before this, West Pakistan had multiple provinces, a Chief Commissioner’s province, states, and tribal areas, each with its own ethnic and cultural diversity, making representation in the Constituent Assembly difficult.

On 30th September 1955, the Federal Assembly passed a law to merge West Pakistan into a single administrative unit. This move had been announced earlier by Prime Minister Muhammad Ali Bogra in November 1954. A Council was formed to manage the region, and the Governor-General appointed a Chief Minister using emergency powers.

While this decision was controversial and bypassed the provincial legislature, the One Unit plan ultimately failed. Reactionary forces in West Pakistan worked to undo it, and the West Pakistan Assembly later voted against it.

Formulation of New Constitution

The major task of the Second Constituent Assembly was to create the Constitution, which it successfully accomplished. The Assembly built on the work done by the previous Assembly, considering and examining the reports of earlier committees. By the time the first Assembly was dissolved, much of the constitution-making work had already been completed.

The new draft Constitution was presented to the Second Constituent Assembly on 9th January 1956 and approved with some amendments on 29th January 1956. The Governor-General gave his assent on 2nd March, and the Constitution came into effect on 23rd March 1956. This marked the transformation of Pakistan into an Islamic Republic.

 Ahmad Faraz