Pakistan: Constitutional history
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Pakistan: Constitutional history
A history of Pakistan’s three Constitutions
Written by Yashee, January 28, 2023: The Indian Express
When is Pakistan’s Republic Day? On March 23, but it is not always celebrated as that. March 23 also happens to be ‘Pakistan Day’, an occasion that holds more recall and relevance in the country than the anniversary of its becoming a Republic.
The reason for this is simple – since its creation, Pakistan has seen three Constitutions, and several dictatorships when the Constitution has been suspended.
Here is a brief history of how Pakistan became a Republic, and of its three Constitutions.
Significance of March 23
On March 23 in 1940, the All India Muslim League adopted the Lahore Resolution, demanding a separate nation for Muslims. In independent Pakistan, thus, this day is celebrated as Pakistan Day. In 1956, on the same day, the country officially adopted its first Constitution, which transformed the Dominion of Pakistan to the Islamic Republic of Pakistan.
“Today, for the average Pakistani, the significance of Pakistan Day, celebrated with a display of military might, is more than Republic Day. Awareness and literacy about the Constitution is not very high,” Shafique Soomro, Karachi resident and public policy graduate from the Pakistan Institute of Development Economics, Islamabad, told The Indian Express.
The first, 1956 Constitution
Both India and Pakistan started their journey as independent nations in August 1947. However, while India became a Republic on January 26, 1950, it took Pakistan nine years and two Constituent Assemblies to adopt a Constitution. The death of Muhammad Ali Jinnah soon after Pakistan was formed, political instability, the enormity of the task at hand, and the dissolving of the first Constituent Assembly in 1954 by Governor-General Ghulam Muhammad, who felt it was clipping his powers, all contributed to it.
“The drawing up of Pakistan’s Constitution was an unprecedented exercise: for the first time, a modern democratic nation was trying to give itself an Islamic Constitution. The Constituent Assembly had three thorny challenges – to decide the nature and extent of Islam’s influence on the Constitution; to balance the rights and interests of East and West Pakistan; and to safeguard minority rights in a nation born as a Muslim homeland,” said Yaqoob Khan Bangash, Pakistani author and fellow, Harvard University’s South Asia Institute. “Pakistan’s Constitution eventually served as an example for other Islamic countries, such as Malaysia and Nigeria,” Bangash added. Disagreements had surfaced in the Assembly debates early on. On March 12, 1949, the Constituent Assembly passed the Objectives Resolution, meant to serve as a guide for the Constitution.
Sections of the Resolution read, “Sovereignty over the entire Universe belongs to Allah Almighty alone and 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. The principles of democracy, freedom, equality, tolerance, and social justice, as enunciated by Islam, shall be fully observed, the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.”
While the Resolution did say that “adequate provision shall be made for the minorities to freely progress and practice their religions and develop their cultures,” minority members of the Assembly objected to it, with Dhaka-born Sris Chandra Chattopadhyaya saying, “In my conception of (the) state where people of different religions live there is no place for religion in the state.” Yet others pointed out that the spirit of the Resolution went against Jinnah’s vision of an equal Pakistan. The Objectives Resolution was finally adopted with all 10 minority members voting against it.
Seven years after this, the first Constitution was adopted, with the Islamic republic having a unicameral Parliament, of 300 members divided equally between West and East Pakistan.
This Constitution proved short-lived, abrogated by President Sikandar Mirza on October 7, 1958, and replaced with martial law.
The second Constitution
Sikandar Mirza was promptly replaced as President by his Commander-in-Chief, General Muhammad Ayub Khan. Under him, Pakistan got its second Constitution in 1962.
“This Constitution was not a consensus document, and heavily concentrated powers in the hands of the President,” Dr. Ali Usman Qasmi, Associate Professor, Lahore University of Management Sciences, told The Indian Express. “Under this Constitution, the all-powerful President was to be elected indirectly – an electoral college of ‘Basic Democrats’, elected by the public, would choose the President. Although, interestingly, this was the Constitution that sought inputs from the common people, in a bid to give it some legitimacy,” Qasmi added.
This Constitution lasted for seven years. On March 25, 1969, martial law was imposed again, by General Agha Muhammad Yahya Khan. Under him, the first general elections were held in December 1970. The results of this election set in motion the change of events that created Bangladesh in 1971.
The third, and current, Constitution
In 1973, Pakistan got the Constitution that still governs it. “The three key features of this Constitution are a Parliamentary democracy, where power rests with an elected Prime Minister and his ministers answerable to Parliament; a federal structure; and expanded fundamental rights,” said Bangash. “The Prime Minister has to be elected, he can’t come from the Upper House. Also, both President and PM have to be Muslims. The 18th amendment of 2010 is another crucial feature, which empowered the Provincial governments to a great degree, diluting the powers held by the Federal government,” he added.
This Constitution was suspended twice, under General Zia-ul-Haq (1977-1985) and General Pervez Musharraf (1999-2002). However, over time, various amendments have removed a lot of changes brought in by Zia.
Republic Day celebrations today
Soomro said there haven’t been many attempts to create awareness about the Constitution and its significance at the national level. “Recently, the government has said federal schools will include the Constitution in the syllabus. But at present, only those studying relevant courses at college level, or preparing for civil services exams, read about the Constitution in any detail. The public’s experience of laws is not that they flow from a central, guiding document, but that various governments bring in whatever measures they deem necessary, either out of populism or to hold on to power.”
Tampering with the constitution
What about the earlier illegalities?
By Fatehyab Ali Khan
THE goings-on in Islamabad are reminiscent of events of the past. No package designed to right the constitutional wrongs perpetrated in Pakistan can be complete unless it totally repeals the consequences of Yahya Khan’s first Legal Framework Order of March 31, 1969, and the PCOs that were the unconstitutional legacies of Ziaul Haq.
Here it would be pertinent to recall the past and ask how the illegalities of an earlier period impact on the present.
The distortions inflicted on the constitution by Ziaul Haq were far-reaching and the doing of one man. This was something unheard of in constitutional history. A constitution is a consensus document for the governance of a country and not a dictator’s personal statement of power as was the case with the basic law bequeathed by Ziaul Haq. However, none of the Majlis-i-Shoora (parliaments) elected since 1988 ever tried to undo these illegalities and anomalies.
The 1973 Constitution was adopted unanimously by the National Assembly on April 10, 1973, amidst a political tug-of-war, backdoor conspiracies and an attempted army coup. It had federal parliamentary features but was essentially unitary in its working and gave the prime minister supreme parliamentary authority. The president could not promulgate an ordinance even in an emergency.
When Ziaul Haq struck on July 5, 1977, he dissolved not only the National Assembly but also the Senate, which could never be constitutionally dissolved. Thereby, he introduced the basis for a series of subsequent illegalities. Through the Governors’ Oath of Office Order of July 5, 1977, the chief justices of all the high courts became the governors of their provinces and administered the oath of office to the judges of their high courts. Thus the entire judiciary was enslaved.
On March 24, 1981, Ziaul Haq promulgated the Second Provisional Constitution Order which further enslaved the judiciary. The only honourable exceptions who refused to submit to this scheme of things were Justices Dorab Patel, Fakhruddin G. Ebrahim and M.A. Rashid. Since parliament had been dissolved, Zia nominated a Majlis-i-Shoora, sacked Fazal Ilahi Chaudhry and became president himself. Ziaul Haq’s dictatorial steps were resisted by the Movement for Restoration of Democracy (MRD) formed on Feb 3, 1981, which demanded the restoration of the 1973 Constitution but to no avail.
In 1984, Ziaul Haq declared himself elected through a referendum, but did not lift martial law. He made the lifting of martial law hostage to the unicameral assembly endorsing a series of changes in the constitution proposed in his Revival of Constitution Order, 1985, whose validation came to be known as the Eighth Amendment. By amending Article 270 A, he secured blanket cover for all his actions and held non-party elections in 1985.
These elections were boycotted by the MRD and Benazir Bhutto challenged these amendments in the Supreme Court which gave its verdict on three major issues after Ziaul Haq’s death in 1988:
1. Elections are valid only if held on a party basis; non-party elections carry no weight.
2. If the National Assembly is dissolved, elections must be held within 90 days.
3. If the National Assembly is dissolved, the federal government is incomplete without a caretaker set-up.
In view of the foregoing, the following questions of great importance for the country and the constitution arise:
1. Should the protection given in the 1973 Constitution (Article 270) to martial law regulations, martial law orders and presidential orders issued under the first Legal Framework Order of Yahya Khan, be deleted?
2. Was the dissolution of the Senate by Ziaul Haq constitutional?
3. Can a single House elected on a non-party basis amend the constitution and rubberstamp the steps of the martial law administrator?
4. Should the bicameral legislature be renamed ‘parliament’ as it was originally known rather than being called Majlis-i-Shoora as it has been since the Eighth Amendment was adopted?
5. Did the inclusion of provincial assemblies — through the Eighth Amendment — in the electoral college for the president, originally comprising only the Senate and National Assembly, create constitutional anomalies?
6. Should the parallel judicial system introduced by the Eighth Amendment (Federal Sharia Court) be retained?
7. Was making the Preamble and Objectives Resolution a substantive part of the constitution a valid step? Should it be reversed?
8. Should Article 6 of the constitution, which has been suspended and revived at will, and has never been invoked, also be enforced retrospectively?
Under the original 1973 Constitution, elections were held under the system of joint electorates and only the president and prime minister had to be Muslim, with separate oaths of office given in the Third Schedule. The chairman Senate, speaker National Assembly, members of the Senate, National Assembly and provincial assemblies could be of any faith with identical oaths for Muslims and non-Muslims. A non-Muslim could become the chairman of the Senate or speaker of any assembly.
Ziaul Haq unconstitutionally changed both the mode of election from joint to separate electorates and the oaths of offices in the Third Schedule, introducing his own Islam, gender discrimination, hadd, taazir, blasphemy laws and deprived the minorities of their constitutional rights. The oath introduced by him is still part of the constitution. Every member of the Majlis-i-Shoora and all judges of the superior courts are enslaved by this oath.
Any constitutional package, which aims to restore constitutional order and ensure democracy in trichotomy in Pakistan must focus on repealing the Eighth Amendment and Articles 270, 270 A, 270 AA and 270 AAA. These amendments deprived the people of Pakistan of their fundamental rights and provided the basis for further constitutional abuse.
The writer is a senior constitutional lawyer and president of Pakistan Mazdoor Kissan Party.
fatehyab@cyber.net.pk
1: Parliamentary supremacy in Pakistan
The supremacy of parliament
By Zafar Iqbal
THE simple reality is that since 1953 we have had no democracy. When people now talk about the ‘restoration of democracy’, one wonders what they mean. The reality we are facing is how to create democracy.
People are generally aware that its pre-requisites are: 1. A free press and media; 2. A non-political administrative structure; 3. Free and fair elections periodically; 4. An independent judiciary
They are good slogans but the way they are being enunciated doesn’t amount to much in practical terms. Besides this, there are other problems which need to be resolved if we want to move towards democracy.
Most of us are committed to what is known as the ‘Westminster model’ or the parliamentary form of government. We completely overlook the fact that Britain, until very recently, was completely unitary. It had no concept of federalism. The theory about democracy is fairly simple – the legislature represents public opinion and the executive is responsible to the legislature. What is overlooked is that the legislature feels it is dependent on the executive. If the executive fails, parliament would be dissolved and they would face the uncertainties of another election. How is it to be ascertained that the executive has failed and who is to have the power to dissolve parliament. Although it was not always like this in the UK and the role of the prime minister has evolved over the last two hundred years to the point where it is the prime minister who asks the Crown to dissolve parliament.
It is partly based on convention and partly on the basis of public opinion as exposed through the media. And yet the timing is such that the outgoing government thinks will give it the best chance of winning the next election. Because of the pre-eminence of the executive over the legislature an inherent danger in the Westminster model is prime ministerial dictatorship.
We have been experiencing it since 1972. ZAB was the ablest politician that Pakistan has produced. Unfortunately, he had no interest in democracy. Even though he did not own a large area of land, by nature he was essentially a feudal lord. As soon as he stepped down as president and chief martial law administrator he suspended all the human rights clauses of the Constitution. Mr Bhutto amended the 1973 Constitution seven times between 1974 and 1977. These are as follows:
First Amendment Act: May 8, 1974 – amended: Articles 1, 8, 17, 61, 101, 127, 193, 199, 200, 209, 212, 250, 259, 260, 272 and the First schedule.
Second Amendment Act: Sept 21, 1974: Articles 106 and 260.
Third Amendment Act: Feb 18, 1975: Articles 10 and 232.
Fourth Amendment Act: Nov 25, 1975: Articles 8, 17, 19, 51, 54, 106, 199, 271, 272, 273, amendment of the First Schedule and the Fourth Schedule and Orders passed under Article 199 shall cease to have effect after 60 days.
Fifth Amendment Act: 1976: Articles 101, 160, 175, 179, 180, 187, 192, 195, 196, 199, 200, 204, 206, 212, 260, 280, plus amendment of the First schedule and the Fourth Schedule.
Sixth Amendment Act 1976: Articles 179, 195, 246 and 260.
Seventh Amendment Act 1977: May 16, 1977: Insertion of new Article 96-A and Amendment of Articles 101 and 245…
When people talk about the restoration of the 1973 Constitution one wonders what it is that they are talking about. Bhutto contrived to make the Constitution and the ‘machinery of government’ – the so-called bureaucracy to become completely subservient to the prime minister which led to what is widely seen as the outright rigging of elections in 1977. All successful government servants have since become politicised. Currently they are allied either with the PPP or the PML-N. One doesn’t know what is going to happen next.
Mr Bhutto was only concerned with political issues: economic management was infra dig. Total censorship remained in place. To complete the picture, the Dalai Camp was set up in Azad Kashmir. It is important to understand the first PPP government’s performance and attitude towards democracy as ZAB’s prime ministership has been secretly treated as the ideal by all subsequent prime ministers. Fortunately, they were unable to reach the same pinnacle of power, possibly because they were nowhere near as competent in influencing and persuading people. We should therefore be cautious when we talk about the ‘restoration of democracy.’
No political leader is likely to even mention prime ministerial dictatorship. Because that is what they all want to become. We were fortunate that Mr Nawaz Sharif failed to become Amir-ul-Momineen because of the Senate. If we are serious about progressing towards democracy the Senate has to be strengthened and made effective similar to the US Senate. It is one of the basic requirements of federalism: Pandit Nehru and Dr Ambedkar fudged the Indian Constitution by making the Rajya Sabha the equivalent of the British House of Lords.
In Pakistan the executive is almost totally in command of the legislature given our social and political norms, changing this is not likely in spite of Mr Zardari’s assertion to ensure parliamentary supremacy. Acknowledging the power of the executive many legislators, particularly all independents, would be willing to join the government.
In many cases we are a bunch of provinces rather than a nation. The result is friction between the provinces. Sindh is upset because Punjab, being the upper riparian, controls the flow of water in the Indus and its tributaries. Sindh was naturally upset because Karachi had been taken over by the so-called Urdu speakers in the early years. Although Karachi is now full of people from other parts of Pakistan it still remains ‘Urdu speaking’. Things have improved between urban and rural Sindh, but they are still not what they should be. Punjab, however, still regards so-called Muhajirs as a big nuisance.
The Punjab and the Khyber-Pakhtunkhwa (formerly NWFP) are not so distant from each other; nevertheless, there was a serious dispute over the Kalabagh dam. There are also other currents and cross-currents so much so that whenever anyone is disappointed they immediately talk about the break-up of the country.
Fortunately we were drifting slowly towards some sort of a concept of nationhood. An effective Senate would speed up the process. What needs to be done is that the Senate should be elected through proportional representation from the provinces. This would make it directly elected and also make its composition a bit different from the lower house. The real problem is that any such development will be opposed by leaders who expect to become prime ministers. Secretly they are all hoping to be dictators
2: Parliamentary supremacy in Pakistan is a myth
The supremacy myth
By Cyril Almeida
PAKISTAN’S political class wants to establish the ‘supremacy of parliament’, which appears to mean stripping the presidency (as it was in 2008) of its substantive powers, restoring the sacked judges of the superior courts and undoing the constitutional tinkering of 2000-08 Once this is done, we are told, parliament will be the pre-eminent institution in the state for the first time since 1973.
The politicians are wrong. While the three-pronged approach is necessary for parliamentary supremacy, it is far from sufficient. Reversing the encroachments on the rights and responsibilities of parliament and the judicature will do nothing to address the threat to parliamentary supremacy emanating from the military-bureaucratic axis.
The Musharraf era was only the latest manifestation in a tradition of dual governance that dates back to the East India Company: government by consensus in ‘normal’ times; authoritarianism in ‘extraordinary’ times. Pakistanis have seen this many times before: bureaucratic dominance stretching from Ghulam Muhammad to Ghulam Ishaq Khan and military dominance stretching from Ayub Khan to Pervez Musharraf.
Ultimately, none of these personalities were moved by the letter or the spirit of the Pakistani constitution. Instead, each was following a tradition that began in 1786 when the governor of the East India Company was empowered to act on his own responsibility in respect of situations “whereby the interests of the Company, or the safety or tranquillity of the British possessions in India, or any part thereof, are or may in the judgment of the Governor-General be essentially affected”.
It is no coincidence that the ‘national interest’ and ‘protection of public property and life’ — invoked each time there has been a takeover of the executive in Pakistan — echo the Company’s ‘interests’ and ‘safety or tranquillity of British possessions’. Pakistan’s authoritarian rulers — the real threat to parliamentary supremacy — have simply followed an unbroken chain of ‘residual autocracy’ or vice-regal authority that has spanned the centuries and was enshrined in Pakistan’s first, ‘temporary’ constitution, the Indian Independence Act, 1947.
It may be anathema to Pakistani liberals, but the first Pakistani leader to don the mantle of an authoritarian ruler was none other than Mohammad Ali Jinnah. The Quaid was hardly averse to trampling on provincial rights. Jinnah introduced Section 92A in the Independence Act, which empowered him to declare governor’s rule in the provinces. And when Jinnah clashed with the chief ministers of the Khyber-Pakhtunkhwa (formerly NWFP) and Sindh, the latter were soon ousted.
This history is important because the nine years it took to draw up a constitution also saw the military-bureaucracy alliance consolidate its control over the nascent state of Pakistan. The real threat to parliamentary supremacy has been and is this military-bureaucracy alliance that came of age in a constitutional milieu steeped in the vice-regal logic that governance is simply too important to be left to parliament alone.
Only when the vestiges of this alliance are removed will parliamentary supremacy become a reality. Parliamentarians interested in doing so would do well to read Ayesha Jalal’s The State of Martial Rule, a book-length exposition of the emergence of the all-powerful alliance. While Ms Jalal does not offer a silver bullet, her scholarly insights into the birth of that alliance provide valuable clues to crafting a successful strategy of rollback.
First, tensions between the centre and the provinces as well as between the provinces must be resolved. Kalabagh, periodic Baloch insurgencies, Pashtun and Sindhi sub-nationalism are the well-known emotive issues, but equally important to province-centre and inter-provincial relations are national finance awards, the Irsa water accords and royalties.
The new government has a broad-based mandate, but it remains to be seen how much political capital the key players will be willing to spend to settle issues of resource distribution. Militating against a settlement is the fact that while the status quo may make everyone unhappy, it has the virtue of being a known position.
Second, politicians need to dwell on the meaning of, ‘physician, heal thyself.’ The parties must deepen and widen their democratic roots. Dispiritingly, the biggest players — the PPP and PML-N — are silent on intra-party democracy and appear content to rely on an increasingly ethnically split vote bank.
Third, the military-bureaucracy’s control of foreign policy must be wrested away. The trouble is there is no obvious way to assert parliament’s will over the presidency, the foreign office and GHQ in this area. Adopting a populist foreign policy is a tempting route that parliament must resist — otherwise the first casualty would be the ‘war on terror’, a war that is as much Pakistan’s as it is the United States’.
The fourth measure that must be taken is perhaps the most vexing. In the years leading up to independence, the ‘babel of tongues’ that is Pakistan was lashed together with an appeal to Islam as the lowest common denominator. After independence, the Objectives Resolution gave the country a contradictory, vague ideology based on Islam.
Since then that ideology has been used as a stick to beat anyone asking probing questions about identity and culture. The consequences of placing Islam rather than Pakistan at the centre of the discourse on national identity were not hard to fathom. Gen Zia’s ‘Islamisation’ drive was an inevitable consequence of a state structure steeped in authoritarianism in periodic search of legitimacy.
Today, politicians serve up platitudes about the rights of minorities, but when Makhdoom Amin Fahim queried the sense in requiring a non-Muslim MNA to take an oath to uphold an ‘Islamic ideology which is the basis for the creation of Pakistan’ he was criticised for his ‘ill-timed’ remark.
Re-orienting the state’s ideology will require the revocation of discriminatory laws, cleansing textbooks of hate, softening public rhetoric, stepping back from the abyss of the jihad culture, and taking cultural cues from countries on our eastern rather than western borders.
Working their way down this laundry list, politicians will undoubtedly blanch. They are happier trumpeting their own, easier three-point agenda for supremacy. However, if the 1973 Constitution really did make parliament ‘supreme’, why have 19 of the 35 years since its promulgation been spent under authoritarian regimes?
Yet this fairytale of parliamentary supremacy will be fanned by at least one group — the military-bureaucracy alliance itself. Why? Because as it waits in the wings for the next ‘extraordinary’ moment, the greatest gift it could receive is the perception that it no longer exists.
cyril.a@gmail.com
