Constitution Making Problems In Pakistan Essay

The Constitution of the Islamic Republic of Pakistan (Urdu: آئین پاکستان‬), also known as the 1973 Constitution is the supreme law of Pakistan.[1] Drafted by the government of Zulfiqar Ali Bhutto, with additional assistance from the country's opposition parties, it was approved by the Parliament on 10 April and ratified on 14 August 1973.[2]

The Constitution is intended to guide Pakistan's law and its political culture, and system. It identifies the state (its physical existence and its borders), people and their fundamental rights, state's constitutional law and orders, and also the constitutional structure and establishment of the institutions and the country's armed forces.[3] The first three chapters establish the rules, mandate, and separate powers of the three branches of the government: a bicameral legislature; an executive branch governed by the Prime Minister as chief executive; and an apex federal judiciary headed by Supreme Court.[3] The Constitution designates the President of Pakistan as a ceremonial Head of State who is to represent the unity of the state.[4] The first six articles of the constitution outline the political system as federalparliamentary republic system; as well as Islam as its state religion.[5] The Constitution also encapsulates provisions stipulating the legal system's compliance with Islamic injunctions contained in the Quran and Sunnah.[6]

The Parliament cannot make any laws which may be repugnant or contrary to the Constitution, however the Constitution itself may be amended by a two-thirds majority in both the houses of the bicameral Parliament, unlike the previous legal documents of 1956 and 1962.[7] It has been amended over time, and most recent impulses for political upgrades and reforms has been amended. Although enforced in 1973, Pakistan, however, celebrates the adoption of the constitution on 23 March—when the first set was promulgated in 1956—each and every year as Republic Day.[8]

Origins and historical background[edit]

Pakistan was founded in 1947. Before writing a constitution, a Constituent Assembly passed the Objectives Resolution, on the insistence of the ulama and Jamaat-e-Islami, in March 1949 to define the basic directive principles of the new state and to declare state recognition of the sovereignty of Allah over the universe. The Objectives Resolution affirmed the role of democracy and contained religious provisions to enable society to adhere to the teachings of the Quran and Sunnah. The Objectives Resolution has henceforth been inserted as a preamble into each of Pakistan's subsequent constitutions.[9]

The country's first constitution was approved in 1956 but abrogated in 1958 after a military Coup d'état.[10] Pakistan's second constitution was approved in 1962. It granted executive power to the president and abolished the office of the prime minister. It also institutionalised the intervention of military in politics by providing that for twenty years, the president or the defence minister must be a person who had held a rank not lower than that of lieutenant-general in the army.[11] The 1962 constitution was suspended in 1969 and abrogated in 1972.[10]

The 1973 constitution was the first in Pakistan to be framed by elected representatives. Unlike the 1962 constitution it gave Pakistan a parliamentary democracy with executive power concentrated in the office of the prime minister, and the formal head of state—the president—limited to acting on the advice of the prime minister.[11]

The Constitution states that all laws are to conform with the injunctions of Islam as laid down in the Quran and Sunnah.[6] The 1973 Constitution also created certain institutions such as the Shariat Court and the Council of Islamic Ideology to channel the interpretation and application of Islam.[12]

After another coup in 1977, the constitution was held in abeyance until it was "restored" in 1985 but with an amendment (the Eighth) shifting power from the parliament and Prime Minister to the president. Another Amendment (Seventeenth) in 2004 continued this shift, but in 2010, the Eighteenth amendment reduced presidential powers, returning the government to a parliamentary republic.

Previous legislation as Source[edit]

Main article: Pakistan Movement

The successful movement led the establishment of Pakistan, independent from British India in 1947. The British Empire divided British India into two, India and Pakistan.

The provisions of the Government of India Act, 1935, had greatly influenced the state and served its legal document until 1956. In 1950, Prime Minister Liaquat Ali Khan author the first annexe that would paved a path in drafting of the Constitution. Elected in 1947, the first Constituent Assembly drafted and adopted its first constitution in 1956.

1956 Constitution[edit]

Main article: Constitution of Pakistan of 1956

Following the adoption of a constitution in India in 1950, Pakistan's lawmakers were incentified to work on their constitution. Prime Minister Muhammad Ali and his government officials worked with the opposition parties in the country to formulate a constitution for Pakistan.[13]

Finally, the joint work led to the promulgation of the first set of the constitution on 23 March 1956—a day when Pakistan celebrates its Republic Day over the adoption of the constitution. The constitution provided for parliamentary form of government with a unicameral legislature.[13] It officially adopted Pakistan as "Islamic Republic" and the principle of parity was introduced. Its features were:

By the constitution, Iskander Mirza assumed the presidency but his constant involvement in national affairs, as opposed to Constitution, dismissed four elected prime ministers in two years. Under public pressure, Mirza upheld the coup d'état in 1958, thus virtually suspending the constitution. Shortly afterwards General Ayub Khan deposed Mirza and declared himself president.[14]

1962 Constitution[edit]

Main article: Constitution of Pakistan of 1962

General Ayub Khan appointed a Constitution Commission to draft another part of the constitution under Chief JusticeMuhammad Shahabuddin.[15] Submitted its considerations on 6 May 1961, Ayub Khan altered the entire version of the constitution which was entirely different from the one recommended by Chief JusticeMuhammad Shahabuddin.[15] It was promulgated on 8 June 1962. Main feature of this set was the introduction of the Presidential system and more consolidated powers to the President. No further changes were carried out to oppose the 1956 document.[15] Its features includes:

The military government and President Yahya himself made no efforts to frame a constitution, aside from issuing the extrajudicial order in 1970.[17] Across the country, the expectations were that a National Assembly would be set up by holding a free and fair election. To hold the proposed elections, President Yahya promulgated a Legal Framework Order on 30 March 1970 that also spelled out the fundamental principles of the proposed constitution and the structure and composition of the national and provincial assemblies.[17]

In December 1970, nationwidegeneral elections were held simultaneously for both the national and five provincial assemblies.[17] The polling results turned were simply disastrous from the standpoint of national unity and demonstrated the failure of national integration.[17] No party enjoyed the full confidence of the people of Pakistan.[17] The nationalistAwami League (AL) secured the mandate of East Pakistan but failed to perform in any four provinces of Pakistan.[17] The socialist Pakistan People's Party (PPP) under the leadership of Zulfikar Ali Bhutto gained mandate in Punjab and Sind but failed in East Pakistan, NWFP and Balochistan.[17] The general elections truly reflected the ugly political reality: the PPP's mandate in Pakistan and AL mandate in East Pakistan.[17]

1970 constitutional crises[edit]

Constitutional crises grew further when AL refused to make concessions over its six points to draft the constitution and instead maintaining that AL had was quiet competent to frame a constitution and to form a central government on its own.[17]

The PPP was not willing to dilute the authority of the federal government in spite of assuring full provincial autonomy for all the provinces of Pakistan.[17] Negotiations on framing the work on constitution were held between January and March 1971 between leaders of PPP, AL, and the military government of Yahya Khan, which turned out to be a failure.[17] Under the LFO, the President Yahya was to decide when the National Assembly was to meet.[17] By 13 February 1971, the President Yahya announced that the National Assembly was to meet at Dhaka on 3 March 1971. By this time the differences between the main parties to the conflict had already crystallized.[17] Over the six-point issue, the PPP was convinced that a federation based on six-point would lead to a feeble confederation in name only and was part of larger Indian plan to break up the Pakistan.[17] These fears were evidently shared by the military leaders in the west, including President Yahya Khan who had publicly described Sheikh Mujibur Rehman as the 'future Prime Minister of Pakistan' on January 14, 1971. Bhutto announced on February 15 that his party would not attend the National Assembly unless there was 'some amount of reciprocity' from the Awami League. Sheikh Mujib replied at a press conference on February 21, asserting that "Our stand is absolutely clear. The constitution will be framed on the basis of the six-points"'.[17]

Such announcement led the PPP to demand the removal of the National Assembly session or opening session to be postponed.[17] The PPP threatened to stage a large scale general strike in all over the country. Under pressured by PPP, President Yahya postponed the National Assembly session on 25 March which came as a shattering disillusionment to the AL and their supporters throughout East Pakistan.[17] It was seen as a betrayal and as proof of the authorities of the Pakistan to deny them the fruits of their electoral victory.[17] This resulted in the outbreak of violence in East Pakistan. The Awami League launched a non-co-operation movement as they virtually controlled the entire province.[17] Due to disturbances in East Pakistan, no National Assembly session was called and the military moved in East Pakistan to control the situation.[17] The civil disobedience movement turned into armed liberation movement backed by the India.

With India successfully intervening in the conflict, the Pakistan militarysurrender to the Indian military and almost over ~93,000 military personnel were taken as prisoners of war on 16 December 1971.[17] Demoralized, gaining notoriety in the country, and finding himself unable to control the situation, President Yahya ultimately handed over the national power to PPP, of which, Zulfikar Ali Bhutto was sworn in on 20 December 1971 as President and as the (first civilian) Chief Martial Law Administrator.[17]

Constitutional convention[edit]

After Bangladesh was formed in 1971, the PPP formed the government and partially enacted the 1962 constitution.[18] President Zulfikar Ali Bhutto called for a constitutional convention and invited the leaders of the all political parties to meet him on 17 April 1972.[18] Leaders and constitutional experts of the Islamic political parties, conservative parties, socialists and communist parties were delegated to attend the constitutional convention in 1972.[19]

Drafting and ratification[edit]

The law experts, constitutional analysts, and country's reputed clergymen worked on formulating the constitution that represents the will and desire of people.[20] Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the "sole and express purpose of revising the 1956 articles."[20] Also, the convention was not limited to the religion, exigencies of government and the preservation of the State; rather it was intended to maintain delicacy in commerce, finances, issue of loans to federation, and Separation of powers.[20] Several key ideas of the philosophy of John Locke and Islamic provisions on civil rights were interchanged in the Constitution.[21][22]

The Constitution ultimately established the "Bicameral Parliament"– National Assembly as Lower house and Senate as Upper house.[20] It also established the parliamentary form of government with Prime Minister as its head of government; the elected National Assembly genuinely representing the will of the people.[20] The Constitution truly maintained a delicate balance between traditionalists and modernists and reflected heavy compromises on fundamental religious rights in the country.[20] The fundamental rights, freedoms of speech, religion, press, movement, association, thought, and intellectual, life, liberty and property and right to beararms were introduced in the new Constitution.[19]Islam was declared as the State religion of Pakistan.[19]Geography and border statue of the country was redefined and "Pakistan was to be a Federation of Four Provinces."[19] The Constitution was written in the point of representing the conservative Islam as well as reflecting a heavy compromise over the religious rights and humanism ideas, advocated by the extremist leftists of the PPP.[20]

On 20 October 1972, the draft was revived by all leaders of the political parties and signed the declaration of adopting the Constitution in the National Assembly on 2 February 1973.[23] Ratified unanimously on 19 April 1973, the Constitution came into full effect on 14 August 1973.[23] On the same day, the successful vote of confidence movement in the Parliament endorsed Zulfikar Bhutto as the elected Prime Minister after latter relinquishing the presidency after appointing Fazal-i-Ilahi to that stint.[23]

Structure[edit]

Fundamental rights[edit]

Contrary to 1956 and 1962 articles, several ideas in the Constitution were new, and guaranteed security to each citizen of Pakistan. First part of the Constitution introduced the definition of State, the idea of life, liberty and property, individual equality, prohibition of slavery, preservation of languages, right to fair trial, and provided safeguard as to arrest and detention as well as providing safeguards against discrimination in services.[24][25]

The due process clause of the Constitution was partly based on the British Common law, as many founding fathers and legal experts of the country had followed the British legal tradition.[26] The fundamental rights are supreme in the Constitution and any law that is ultra vires the fundamental rights can be struck down by the apex courts in their constitutional jurisdiction vested on them under Article 199 of the Constitution.[27]

Provisions[edit]

In contrast to the constitutions of India and Bangladesh, the Constitution reflected a heavy compromise over several issues to maintain a delicate balance of power among the country's institutions. The Constitution defined the role of Islam;[28] Pakistan was to be a Federation of Four Provinces and shall be known as the Islamic Republic of Pakistan;[29] introduction of check and balances, separation of powers, and provided the federal system under which the government should governed.

The Constitution established a "BicameralParliament" as a legislative authority that consists of the Senate as Upper house (providing equal provincial representation), and National Assembly as Lower house (providing the will and representation of people).[30][31] The Constitution put stipulation on the eligibility of becoming President and Prime Minister that only "Muslim" of not less than forty-five years of age[32] and is qualified for becoming the Prime Minister.[33] No law repugnant to Islam shall be enacted and the present laws shall also be Islamised.[34] The Constitution also introduced a new institution known as the "Council of Common Interests" consisting of Chief Minister of each four provinces and an equal number of Cabinet ministers of the Government nominated by the Prime Minister.[35] The Council could formulate and regulate the policy in the Part II of the Legislative List. In case of complaint of interference in water supply by any province the Council would look into the complaint.

Another major innovative introduction in the Constitution is the establishment of the National Finance Commission (NFC) consisting of the Provincial and Finance Ministers and other members to advice on distribution of revenues between the federation and the provinces.[36] The Constitution's first parts introduce the Islamic way of life, promotion of local government, full participation of women in national life, protection of minorities, promotion of social and economic well being of the people, and strengthening the bonds with the Muslim world and to work for international peace.

Under the Constitution, the Fundamental Rights include security of person, safeguards as to arrest and detention, prohibition of slavery and forced labour, freedom of movement, freedom of association, freedom of speech, freedom to profess religion and safeguards to religious institutions, non-discrimination in respect of access to public places and in service, preservation of languages, script and culture. The judiciary enjoys full supremacy over the other organs of the state. About national languages, Urdu was declared as national languages, and English as official language; all other languages were preserved by the Constitution.[37]

Islamic introduction[edit]

Many key ideas on regarding the role of Islam in the State that were mentioned in 1956 Articles were made part of the Constitution:

  • The official name "Islamic Republic of Pakistan" as selected for the state of Pakistan.
  • Islam is declared as the state religion of Pakistan.
  • Enabling of living life, culture, and customs of Muslims, individually or collectively, in accordance with the fundamental principles and basic concepts of Islam.
  • Teachings on Arabic, Qur'an, and Islamiyat to be compulsory in country's institutions and to secure correct and exact printing and publishing of the Qur'an.
  • Proper organisations of Zakat, Waqf, and mosques is ensured.
  • Prevent prostitution, gambling and consumption of alcohol, printing, publication, circulation, pornography, and display of obscene literature and advertisements.
  • Required to be a Muslim to run for bid of becoming the President (male or female) and/or Prime Minister (male or female). No restriction as to religion or gender on any other post, up to and including provincial governor and Chief Minister.
  • All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Qur'an and Sunnah and no law shall be enacted which is repugnant to such injunctions.[38]
  • A Council of Islamic Ideology shall be constituted referred to as the Islamic advisory council.[39]
  • The Constitution of Pakistan defined a Muslim as a person who believes in the unity and oneness of Allah, in the absolute and unqualified finality of the Prophethood of the Islamic prophet, Muhammad, and does not believe in, or recognise as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad.
  • In keeping with this definition, the SecondAmendment to the Constitution (1974) declared for the first time the Ahmadiyya Community and/or the Lahori Group as non-Muslims, since their leader, Mirza Ghulam Ahmad, claimed to be prophet of God.
  • However, the Fourth Amendment (1975) set aside six seats in the National Assembly for non-Muslim representatives to protect minority rights.
  • The state shall endeavour to strengthen the bonds of unity among Muslim countries.
  • Islamic revisions were introduced into the Pakistan Penal Code.

Parts[edit]

The individual Articles of the Constitution are grouped together into the following Parts:

  • Preamble
  • Part I[40] – Introductory [Articles 1–6]
  • Part II[41] – Fundamental Rights and Principles of Policy [Articles 7–40]
  • Part III[42] – The Federation of Pakistan [Articles 41–100]
  • Part IV[43] – Provinces [Articles 101-140A]
  • Part V[44] – Relations between Federation and Provinces [Articles 141–159]
  • Part VI[45] – Finance, Property, Contracts and Suits [Articles 160–174]
  • Part VII[46] – The Judicature [Articles 175–212]
  • Part VIII[47] – Elections [Articles 213–226]
  • Part IX[48] – Islamic Provisions [Articles 227–231]
  • Part X[49] – Emergency Provisions [Articles 232–237]
  • Part XI[50] – Amendment of Constitution [Articles 238–239]
  • Part XII[51] – Miscellaneous [Articles 240–280]

Annex[edit]

  • Annex to the Constitution of Pakistan

Schedule[edit]

Schedules are lists in the Constitution that categorise and tabulate bureaucratic activity and policy of the Government.

  • First Schedule[52] – Laws exempted from the operation of Article 8(1), 8(2), 8(3b), and 8(4)
  • Second Schedule[53] – Election of President" Article 41(3)
  • Third Schedule:[54] – Oaths of Office: Article 42, Article 91(5)–92(2), Article 53(2)–61,
  • Fourth Schedule:[55] – Legislative Lists
  • Fifth Schedule:[56] – Remuneration and Terms and Conditions of Service of Judges: [Article 205]

Amendments[edit]

Main article: Amendments to the Constitution of Pakistan

Unlike the previous documents, the Constitution cannot be changed, instead constitutional amendments are passed; altering its effect.[7] Amendments to the Constitution are made through the Parliament, where a Two-thirds majority and voting is required in both houses for a constitutional amendment to take its effect, in accordance to the Constitution.[57] In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures.[58]

As of 2015[update], 21 amendments have been introduced to the Constitution. Among the most important of these are the Eighth (1985) and Seventeenth Amendments (2004), which changed the government from a parliamentary system to a semi-presidential system. However, in 2010 the Eighteenth Amendment reversed these expansions of presidential powers, returning the government to a parliamentary republic, and also defined any attempt to subvert, abrogate, or suspend the constitution as an act of high treason.

Original text[edit]

Preamble[edit]

Main article: Objectives Resolution

Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;

And whereas it is the will of the people of Pakistan to establish an order :-

Wherein the State shall exercise its powers and authority through the chosen representatives of the people;

Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

Wherein 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;

Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;

Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;

Therein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;

Wherein the independence of the judiciary shall be fully secured;

Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;

So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity :

Now, therefore, we, the people of Pakistan,

Cognisant of our responsibility before Almighty Allah and men;

Cognisant of the sacrifices made by the people in the cause of Pakistan;

Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice;

Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;

Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;

Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.

Comparison with previous sources[edit]

With regard to provincial rights the 1973 constitution was in fact the most centralised of Pakistan's various constitutions. The Government of India Act of 1935, which Pakistan adopted as its first working constitution, granted the federal government 96 items of power. The 1956 constitution reduced that number to 49, and this was retained in the 1962 constitution. In 1973, however, it was then enlarged to 114.

See also[edit]

References[edit]

  1. ^Abiad, Nisrine (2008). Sharia, Muslim states and international human rights treaty obligations : a comparative study. London: British Institute of International and Comparative Law. pp. 96–200. ISBN 978-1-905221-41-7. 
  2. ^Enterprise Team (1 June 2003). "The Constitution of 1973'". The Story of Pakistan. The Story of Pakistan. Retrieved 15 October 2011. 
  3. ^ abConstitution of Pakistan. "Constitution of Pakistan". Constitution of Pakistan. Constitution of Pakistan. Retrieved 22 January 2013. 
  4. ^"Part III. The Federation of Pakistan: Chapter 1; The President". Const. of Pakistan. Const. of Pakistan. Retrieved 22 January 2013. 
  5. ^"First Six Articles". 
  6. ^ abIqbal, Khurshid (2009). The Right to Development in International Law: The Case of Pakistan. Routledge. p. 189. ISBN 978-1-134-01999-1.  
  7. ^ abIftikhar A. Khan (24 June 2012). "Parliament can't make laws repugnant to Constitution: CJ". Dawn News. Retrieved 23 January 2013. 
  8. ^et. al., Govt of Pakistan. "Constitutional history of Pakistan". National Assembly of Pakistan pr of Pakistan press. 
  9. ^Hussain, Rizwan. Pakistan. The Oxford Encyclopedia of the Islamic World.  
  10. ^ abIslamization of Laws and Economy, Case Studies on Pakistan by Charles Kennedy (Institute of Policy Studies, The Islamic Foundation, 1996, p.85)
  11. ^ abBackgrounder. Pakistan's Constitution Author: Jayshree Bajoria | Council on Foreign Relations | Updated: 21 April 2010
  12. ^Diamantides, Marinos; Gearey, Adam (2011). Islam, Law and Identity. Routledge. p. 198. ISBN 978-1-136-67565-2.  
  13. ^ abcothers contribution, et. al. "The Constitution of 1956". Story of Pakistan. Nazaria-e-Pakistan, part I. Retrieved 1 June 2014. 
  14. ^The First Martial Law
  15. ^ abcdet. al. "The Constitution of 1962". Story of Pakistan. Nazaria-e-Pakistan, Part II. Retrieved 1 June 2014. 
  16. ^This was the system that had merged all the provinces of West Pakistan into one unit. General Yahya restored autonomy of the old provinces of Sindh, the Punjab, and the North West Frontier Province and created the new province of Baluchistan.
  17. ^ abcdefghijklmnopqrstuvwGhazali, Abdus Sattar (14 August 1999). "Chapter V:The Second Martial Law". Islamic Pakistan: Illusions and Reality. Lahore, Punjab: University of Punjab Press. Retrieved 1 June 2014. 
  18. ^ abGhazali, Abdus Sattar. "Chapter VII : The Third Islamic Republic". Islamic Pakistan. Punjab University Press, Chapter 7. Retrieved 2 June 2014. 
  19. ^ ab
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Sunday, December 18, 2011



The Labour Party came to power in the 1945 and C.R. Attlee became the Prime Minister. He sent a mission of three Cabinet members of India to solve the constitutional problems. It came to be called Cabinet Mission.

The Cabinet Mission consisted of Lord Pathick Lawrence, Sir Stafford Cripps and A.V. Alexander. It met the leaders of different parties in India but the Indian leaders could not agree among themselves.Maulana Azad as the president of the Congress stressed to establish federal government and Jinnah repeated the Two Nation Theory as a universal reality.

On May 1946, the Cabinet Mission and the Viceroy published a statement containing their own solution of the constitutional problem which is known as Cabinet Mission Plan.

Main Recommendations

It made the following proposals:

Indian Union comprising British India and princely states.

1. Centre to deal with foreign affairs, defence, communication, taxation.
2. Rest of the subjects with provinces.
3. There will be a legislature and executive comprising representatives of provinces and states.
4. No legislation on communal affairs if the majority of the two communities are not present and voting in favour.
5. Provinces will be divided into three groups:
A: Hindu majority provinces e.g. UP, CP, Madras, Bombay, Bihar, Orissa.
B: Muslim majority provinces in NW e.g. Punjab, NWFP, Balochistan and Sindh.
C: Bengal and Assam.
6. Each group could decide what to be managed jointly and what should be managed by provinces themselves. They could decide if the group desired to frame constitution.
7. After ten years, a province by a vote of its legislature could ask for review of relationship with the Union. It implied that a group or province could quit the Indian Union.
8. CA to be elected by the elected members of the provincial assemblies. Seats to be divided into three categories: General, Muslim, and Sikh on the basis of population in provinces. Separate Electorate.
9. Interim Government to be set up.

Muslim League Reaction

The Muslim League reiterated its demand for Pakistan. It accepted the plan for two reasons: Basis and foundation of Pakistan was in the compulsory grouping and the right to ask for review.

Congress Reaction

The Congress was critical of groupings and right to ask for review of constitutional relationship. It agreed to contest elections for the CA but declined to be bound by the proposals of the Cabinet Plan. The nonsensical stand of the Congress was that they were ‘free to make any change in the proposal.’ Definitely the ML was alarmed by the Congress’ intentions.
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Mountbatten as Viceroy

Mountbatten arrived in Delhi on March 22, 1947. The basic objective of his appointment was to wind up British rule. He arranged dialogue with the Indian leaders. Then he visited England for deliberations for new plan.

3rd June Plan

The Plan was issued on June 3, 1947 and is known as 3rd June Plan. The main characteristics of the plan are as follows:

· The British will not impose a constitution but the Constituent Assembly will frame a constitution.
· The constitution will not be imposed on the areas that do not accept it. Opinion will be sought from them if they want to set up a separate CA (Constituent Assembly).
· Punjab & Bengal Assemblies will meet in two parts, members from Muslim majority areas and other districts separately to decide if the province be partitioned.
· If any part decides for partition, each group will decide which CA they wish to join.
· Sindh Assembly will decide about joining either side.
· Referendum in NWFP
· Balochistan: appropriate method
· Boundary Commission for Punjab and Bengal
· Princely states to decide for themselves keeping in view their geographical contiguity.

Indian Independence Act July 1947

To give legal shape to the June 3 Plan, the Indian Independence Act was promulgated (July 1947).

· Two independent dominion states on August 15, 1947
· Their legislatures will have all powers to make laws for the respective states.
· Government of India Act, 1935, to be interim constitution subject to changes due to Indian Independence Act 1947.
· Governor Generals can amend the Interim Constitution until March 31, 1948.
· All arrangements between the British and the Princely states to come to an end and they will have new arrangements with the new states.
· British King will no longer use the title of the King of India

Implementation of Plan June 3rd, 1947

Punjab

The Muslim members favoured joining new Constituent Assembly. the non-Muslims voted for partition and joining India.

Bengal

Muslims favoured joining new Constituent Assembly while non-Muslims favoured partitioning and joining India.

Sindh

The Assembly voted to join Pakistan.

NWFP

Referendum decided in favour of Pakistan while Dr. Khan’s govt. boycotted it after it became clear that it would lose.

Balochistan

Shahi Jirga and the non-official members of Quetta Municipal Committee opted for Pakistan.

Sylhet

Referendum was held to join East Bengal for joining Pakistan.

Governor General’s Issue

Mountbatten wanted to be joint GG (Governor General) of India and Pakistan while ML decided to appoint Jinnah as the first Governor General of Pakistan in July.

Transfer of Power

1st meeting of the Constituent Assembly was held on August 11, 1947 and the ceremonies on August 14. Radio announcement was made at midnight 14-15 Aug. Oath taking ceremony for GG (Governor General) and PM (Prime Minister) was held on August 15 1947.
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RedCliffe Award



The Indian Independence Act, 1947, provided among the other provisions the appointment of two Boundary Commissions for the division of Punjab and Bengal between Pakistan and India. Sir Cyril Redcliffe, a prominent British lawyer, was appointed as the chairman of both the boundary commissions who would have the power to make the Award which may be called as the perfidious Redcliffe Award.

Members of the Punjab Boundary Commission

The members of the Punjab Boundary Commission were Mr. Justice Din Muhammad and Mr. Justice Muhammad Munir on behalf of Pakistan, and Mr. Justice Mehar Chand Mahajan and Mr. Justice Teja Singh on behalf of India.

Members of the Bengal Boundary Commission

The members of the Bengal Boundary Commission were Mr. Justice Abu Saleh Muhammad Akram and Mr. Justice S.A. Rehman on behalf of Pakistan and Mr. Justice C.C. Biswas and Mr. Justice B.K. Mukherjee on behalf on India.

The Commissions were set up by the end of June, 1947. Redcliffe arrived in India on July,8 1947. The two Commissions were assigned the responsibility of demarcating the boundaries of the two parts of the Punjab and Bengal on the basis of the contiguous majority areas of Muslims and non-Muslims.

Unjust Demarcation of Boundaries

India and Pakistan agreed to accept the award of the Boundary Commission and to take proper measures to enforce it. Redcliffe did not take part in the public sittings of the Commissions, in which arguments were presented by the Muslim League, the Congress, the Sikhs and other interested parties. He studied the record and proceedings of the meetings and held discussions with other members of the Commission. As expected the members of the Boundary Commissions were unable to reach agreement on the boundaries. Lord Redcliffe, as the Chairman, gave his award.

Division of Bengal and Calcutta Problem

The Redcliffe award was unfair to Pakistan because it awarded many Muslim majority areas in the Punjab and Bengal to India. In Bengal, the great city of Calcutta carried immense importance. It was the capital of the province. Its only major port and the biggest industrial, commerce and educational centre. Being the centre of all activities, Calcutta was the most developed area of the province. The entire development of Calcutta was mostly based on the toil of Muslim peasantry of Bengal. East Bengal produced most of the raw material which had to be sent to Calcutta because all the factories and mills were in or around Calcutta. Without Calcutta Eastern Bengal would prove to be a rural slum. For Pakistan, separated by one thousand miles of Indian territory, the importance of sea communications and hence of Calcutta could not be ignored. For that very reasons the Congress leaders were determined to deny Calcutta to Pakistan and insisted on retaining it India. Mountbatten was in favour of giving Calcutta to India. Redcliffe, in accordance with the desires of Mountbatten, awarded Calcutta to India in spite of the Muslim claim to it.

Although the Muslims formed only a quarter of the population of Calcutta, but the hinterland on which the life of Calcutta depended was a Muslim majority area. Calcutta had been built mainly on the resources of East Bengal. Pakistan, therefore, had a strong claim upon Calcutta and its environs. Mountbatten had entered into a secret agreement with the Congress leaders to get Calcutta for India.

Division of Punjab

In case of Punjab the award was again partial and against Pakistan. The award that Redcliffe gave in the Punjab chopped off a number of contiguous Muslim majority areas from Pakistan. In case of India not a single non-Muslim area was taken away from her. In Gurdaspur district two contiguous Muslim majority tehsils of Gurdaspur and Batala were given to India alongwith Pathankot tehsil to provide a link between India and the State of Jammu and Kashmir. The Muslim majority tehsil Ajnala, in the Amritsar district was also handed over to India. In Jullundur district the Muslim majority areas of Zira and Ferozpur in the Ferozepur district, were also given to India. All of these areas were contiguous to the western Punjab.
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Monday, December 19, 2011
The Objectives Resolution (1949)

The Objectives Resolution (1949)


The Objectives Resolution was the first constitutional document that proved to be the ‘foundation’ of the constitutional developments in Pakistan. It provided parameters and sublime principles to the legislators. It made the constitution-making process easy task setting some particular objectives before them that would be acceptable to the people of Pakistan who had suffered a lot under the Hindu-dominated majority. The Resolution was moved by Liaquat Ali Khan, the then Prime Minister of the Islamic Republic of Pakistan, and approved on March 12, 1949.

The Constituent Assembly (1947-54)

The first Constituent Assembly came into existence under Indian Independence Act 1947. The elections were held in July 1946 to decide the destiny of the All India Muslim League (AIML)’s claim that it is the only representative party of the Indian Muslims that desire separate homeland, Pakistan. The members from the districts that became part of Pakistan were declared members of the Constituent Assembly. The number of such members was 69. It increased to 79 after the 1947 when some states joined Pakistan and then increase in the population. There were two major parties, Muslim League and Congress in the Assembly at that time. This Assembly had dual functions to perform.

Features of the Objectives Resolution

1. Sovereignty over the entire universe belongs to Almighty Allah alone.
2. 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. Constitution will be framed for sovereign, independent state of Pakistan.
4. The state shall exercise its power through the representatives of the people.
5. Principles of Democracy, freedom, equality, tolerance and social justice as enunciated by Islam will be fully observed.
6. 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.
7. Minorities to have freedom to freely profess and practice their religions and develop their cultures.
8. Provisions for safeguarding the legitimate interests of minorities, backward and depressed classes.
9. Pakistan shall be a Federation with autonomous units. State’s sovereignty and territorial integrity will be protected.
10. People of Pakistan should prosper and attain their rightful place in the comity of nations and make contribution towards international peace and progress and happiness of humanity.

Explanation and Importance

The Resolution declared the sovereignty of God as the distinctive political philosophy. The Western democracy gives the notion that sovereignty lies in the people but this Resolution is important having the concept of the sovereignty of God. It clarified that people would utilize powers gifted by God so they would have to work within the limits prescribed by Him. The exercise of the powers is a sacred trust. The representatives of the people of Pakistan will manage the affairs under the universal ideology of democracy, freedom, equality, tolerance, and social justice with the spirit of an Islamic framework.

The Resolution pledged to give the due respect and rights to the minorities, backward and depressed classes in the benign society of Pakistan. Their rights, interests, religion and culture were not confuted.

It’s important that the Resolution promised the federating units for due powers, autonomy and territorial integrity.

Objections by Non-Muslims

The major objection by the Non-Muslims was that the government was trying to mix the religion and politics that was against the spirit of democracy. The non-Muslims objected on the ‘Sovereignty of Allah’ and minorities’ rights, saying it would promote inequality in the society. They were also of view that Shariah was not adequate for the modern time. They feared that it would encourage the religious extremists to work for the establishment of a ‘theocratic state.’

Importance

The Objectives Resolution is a basic and primary document of the constitutional history of Pakistan. It is a framework that provides mechanism to achieve goals for a better life of the people of Pakistan. It’s important that it embraces centrality of Islam to polity sustaining their links with the pre-independence period. The AIML leaders were modernist Muslims not in favour of an orthodox religious state. Therefore, they selected the middle way abiding by the Islamic laws and the international democratic values. The Resolution remained ‘Preamble of all the constitutions due to its importance.
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Constitutional Issues



Constitution is a set of basic principles and framework for governance and exercise of political power and legal authority. It clarifies the scope of power, relationship among various institutions within the government and society. It has precedence over ordinary laws and cannot be changed like ordinary laws. The Government of India Act (1935) was modified and promulgated in the newly state of Pakistan. The elected members in the 1946 elections made the first Constituent Assembly that faced grievous circumstances.




The major issues, the first constituent assembly faced, were about:

1: Federalism

There was consensus on federalism but yet there were many issues to be settled. The main was that Pakistan consisted of two territorial parts, East Pakistan (with more population, less territory but administratively one unit) and West Pakistan (administratively 4 units). Federalism is meant to accommodate such kind of diversity maintaining the unity of the state or country.

Division of power:

It was the most difficult question that how the power would be divided between Centre and the Provinces. The heritage of British rule gave the tradition of a Strong Centre. But the provinces were demanding more Autonomy and Provincial Rights.

In the Interim Constitution and the 1956 Constitution tradition of strong centre continued.

2: Representation

Representation at the federal level was another conflicting issue because East Pakistan and West Pakistan were different in population and size. On the other hand there was diversity in Western part of Pakistan. The provinces of West Pakistan were also different in population and size. All of them were sensitive to their representation and provincial autonomy.

To have a Standard Formula for the representation of units and population the Constituent Assembly (CA) formed a Basic Principle Committee (BPC) on March 12, 1949. The primary task of this committee was to frame a set of basic principles for the future constitution of Pakistan.

First BPC Report:

This committee presented its first report on 28th September 1950. According to this report two houses of the parliament were proposed. The lower house was to be elected on the basis of POPULATION and the upper house was to be elected on the basis of equal representation for all the provinces of Pakistan namely East Bengal, West Punjab, Sindh, NWFP and Baluchistan. Equal powers were proposed for the both Houses. No mention of National Language was made. East Bengal opposed this report and Liaqat Ali Khan withdrew it.

Second BPC Report:

BPC presented its final report on 22nd December 1952. According to this report two Houses of the Parliament will enjoy the equal status and powers. It proposed equal representation to East and West wing.

This report also faced reaction in both the wings of Pakistan. The principle of parity was not appreciated in both East Pakistan and Punjab.

Muhammad Ali Bogra Formula:

Muhammad Ali Bogra immediately after assuming the office of the Prime Minister presented a formula to resolve the deadlock in constitution making. According to this formula Pakistan would have a bicameral legislature. In upper house there would be EQUAL representation to each of five units. In lower house population will be represented. In this way more representation was given to East Pakistan.

Both wings would have equal strength in joint sessions of the two houses.

Reaction to Bogra Formula

It was welcomed in both parts of the country. The principle of parity and representation of the population was appreciated. It also solved the problem of national language by suggesting Urdu and Bengali both as national language.

One Unit of West Pakistan October 1955

One Unit of West Pakistan was established on 14th October 1955. The provinces of Punjab, Sindh, NWFP and Baluchistan would be amalgamated in one unit to establish parity between the two parts of the country.

3: Separate or Joint Electorate

Separate electorate was adopted on the demand of Muslims in 1909 by the British Government. But the minorities did not favour this after independence. Religious elements supported this as a part of heritage.
East: decided for Joint Electorate.
West: Separate electorate.
1957: Joint Electorate was adopted for all Pakistan by the National Assembly.

4: The National Language Issue

Pre-independence: Muslim elite all over India adopted Urdu. In 1948 Jinnah declared that Urdu would be the national language but provinces could use their languages. Opposition against Urdu was there in East Bengal. This became more pronounced after the death of Jinnah as controversies erupted on constitution making. Language Movement started in East Pakistan February, 1952.

There was a complaint about anti Bengali language attitude of the federal government. Two-language formula was adopted in 1954. Since 1973 Urdu was adopted as national language along with the support for development of regional languages.

5: Parliamentary or Presidential

There was a consensus for parliamentary system. But there was a limited demand for presidential system. Supporters of Presidential system became dominant after the 1958 military takeover. The 1962 Constitution was a Presidential constitution.

6: The Islamic or Secular State

From the very beginning of Pakistan Movement there was an agreement that the state will have close relationship with Islam. Muslims defined their national identity with reference to Islam and its heritage. Some opposition came from the Congress members of the Constituent Assembly, and a few secularists.

There was a BROAD AGREEMENT that the state will identify itself with Islam. The Constituent Assembly took time to define the precise relationship between the state and Islam.

Objectives Resolution

Objectives Resolution rejected theocracy in Pakistan and provided the basic objectives for the future constitution of Pakistan.

The issues to be addressed were:

1. Scope of legislation for an elected Assembly?
2. Who will decide about the Islamic nature of laws? Should a Board of Ulema be given this power?
3. Position of women, vote and work?
4. Religious minorities?

Discussion in the Constituent Assembly and outside continued. There was an active demand by religious elements for Islamic political system. In this context the leading Ulema of various sects presented famous 22 points to provide a religious base to the future constitution.

The Key Issue:

What kinds of institutions and processes have to be created to translate the notion of supremacy of the Qur’an and the Sunnah

· The Constituent Assembly adopted a middle course and a modernist perspective.
· Spirit of Islamic principles and values, modern notions of governance, representation and administration were amalgamated.

Islamic provisions would be taken up when we discuss the constitutions.
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Tuesday, December 20, 2011
Constitution Making (1947-56)


Constitution is a basic document in the handling of domestic affairs. It sets out the framework for governance and exercise of power. It gives guiding lines of relationships among the federating units. Law making is always within its limits.

The modified Government of India Act (1935) became the Interim Constitution of Pakistan in 1947. The Constituent Assembly (CA) was given the task of framing the Constitution. The first meeting of the CA was held on August 11, 1947 at Karachi.

The process began with the passing of the Objectives Resolution in which the Islamic and democratic values were adopted as grounds for the future constitution. The Basic Principles Committee (BPC) consisting of 24 members was made to work for the constitutional powers. The various sub-committees on Federal and provincial powers, Franchise, Judiciary, and Fundamental Rights started working. Board of Talimat-i-Islamia was also set up to seek advice on the religious matters.

First BPC Report, 1950

1. The Objectives Resolution to be included in the Constitution as the directive principles.
2. Legislature: Two houses of the parliament.
Upper: (House of Units) Equal representation for the units
Lower: (House of People) On the basis of Population.
Both the Houses would enjoy the equal powers.
3. The Head of State elected by joint session would be for five years (Two terms only). President had discretionary and emergency, appointment and other powers. President was not answerable to anyone, might be a Muslim or non-Muslim, would be assisted by the Prime Minister (PM) and Cabinet that would be answerable to the CA. Parliament may impeach him by 2/3 majority. He was given the power to abrogate the constitution.
4. Cabinet responsible to both the Houses.
5. No mention of national language

Criticism:

This report was severely criticized throughout the country. It could not satisfy both the wings, East and West. The religious group objected that the report contained nothing about Islamisation. On the question of representation, the East Pakistan (EP) protested that their majority had been denied by the Report. They remarked that they were thrown into a permanent minority. The population of EP was slightly larger than that of the West Pakistan (WP) but it was treated as the
small provinces because both the Houses were given equal powers. So the domination of WP was intolerable for the East wing.

The language issue proved subversive to the national solidarity. The Eastern Pakistanis condemned the proposal that made Urdu as official language.

Second BPC Report, 1952

1. Head of State would be Muslim and no change in powers.
2. Equal representation to East and West wings:
UH (Upper House) 60, 60 LH 200, 200
3. More powers were given to Lower House. Cabinet was made responsible to Lower House.
4. It was promised that law making would be in accordance with ISLAM. No law would be made in violation of Islamic principles.
5. Advisory Board of five Islamic scholars was founded.
6. Silent on national language.

Criticism:

The politicians particularly from the Punjab deplored the Report because formation of the UH on the basis of representation was not acceptable. It was declared against the principle of federation. The WP favoured equality only for Upper House. The political crisis removed Prime Minister Nazimuddin and attention diverted from the core issue.

Muhammad Ali Bogra Formula October 1953

The proposals were revised in the light of the criticism and decided:

Upper House: Equal representation to all five units
Lower House: More representation to Eastern part
While in joint session, both wings had equal representation:


East PakWest Pak
Upper House 10 40
Lower House 165 135
-------------------------------------
Joint Session 175 175


Decision by majority but it must include 30 percent members from each zone.

Criticism:

It suggested some difficult process but mostly it was widely acceptable. Two languages, Urdu and Bengali, were approved as official languages that injured the national unity as Quaid-i-Azam had wished Urdu as national language.

This is important that after the Formula, the work began on constitution drafting because the deadlock was over.

CA Dissolution

In October 1954, GG (Governor General) dissolved the CA that was challenged in the Sindh court by Maulvi Tamizuddin. The court declared the dissolution illegal but the Federal Court upheld the GG action but asked for setting up an elected CA.

2nd Constituent Assembly, June-July 1955

Ghulam Muhammad called a Convention on May 10, 1955. All its members were to be elected indirectly (by the provincial assemblies). In this way, the 2nd CA came into existence.

One Unit Scheme, October 1955

The presence of different provinces in the WP had complicated the issue of the WP representation in the CA. It was handled by uniting all the WP units into ONE (One Unit, October 30, 1955). Now both the parts had become two units and could be addressed equally.

Constitution-making

One Unit scheme helped the task of constitution making to accomplish successfully. The previous committees report helped the new Assembly that completed its work and presented in the 2nd CA on January 9, 1956. It, with certain amendments, was approved on January 29, 1956 and enforced on March 23. With this Pakistan had become an Islamic Republic.
Constitution Making (1947-56)
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