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Pakistan

Web Desk
February 26, 2012

The constitutional journey

Pakistan

Web Desk
Sun, Feb 26, 2012
Pakistan initially was part of the Mughal Empire. There was no written constitution, what the emperor declared law, was law. There was no formal written law and no one was above the declared law but the emperor himself. During the Mughal era the British came to India for purpose of trade and this trade was carried out by the East Indian Company. Later the Company acquired land to build factories and started spreading its business all over India rapidly. After the death of the Emperor Aurangzeb in 1707, the Mugal empire disintegrated and the Company became very powerful. The British government wanted control of this company as now this company was ruling India. The British Parliament then passed an Act ‘the Act of 1773’ through which the British government was empowered to take control of the British Company in India. In 1858 Queen Victoria of Britain issued a Proclamation formally declaring the control of the administration of India. The British now wanted to rule India effectively so the British Parliament passed the ‘Government of India Act in 1858. This was the first Constitutional document for undivided India.
When India was being divided, the Government of India Act 1935 was the Constitution of India. This Act was a detailed Statute having 321 Sections and 2 Schedules and was the last pre independent Constitution of India, given to India by their British rulers. This Act was designed in such a way that the British Government retained the control of India. To achieve this, the actual administration of India was given in the hands of the British appointed Viceroy and provincial governors who were subject to the control of the Secretary of State for India.
The Independence Act 1947, provided for the partition of India and two independent countries known as, India and Pakistan, came into existence on 14th August 1947. The Independence Act 1947 was a short Act and declared that Constituent Assembly of both the countries were to have the power to frame a Constitution and till then the Independence Act 1935 would serve as the Interim Constitution for both the countries and the Constituent Assembly of both the countries had the right to amend the Government of India Act 1935.
So Pakistan was born with a Constitution given to it by its British rulers, which became the blue print for the framing of our future Constitutions. Under the original 1935 Act, the governor general represented the British Crown in India and all authority laid with him. The Indian Independence Act curtailed the powers of the governor general and the governor general was to act on the advice of his ministers. In Pakistan the amendment to the powers of the governor general was not enforced and the governor general of Pakistan was to have the same powers as originally given to the governor general under the Government of India Act 1935. Therefore from the inception of Pakistan there was no concept of power sharing.
The Constituent Assembly set to work in Pakistan to frame a Constitution for Pakistan. The Constituent Assembly was given a dual role under the Indian Independence Act 1947. It was to frame a Constitution for Pakistan and to act as the Federal Legislative Assembly till the Constitution of Pakistan was framed and put to effect. A resolution was passed by the Muslim League on 12th March 1949. This resolution was called the Objective Resolution. This Resolution laid down some basic guiding principles for the framers of the Constitution. It declared that absolute sovereignty belongs to Almighty Allah and the Pakistan Constitution was to be based on the teaching of the Holy Quran and the traditions of the Prophet Hazrat Muhammad (Peace Be Upon Him). This Resolution later became the preamble of all the Constitutions of Pakistan and then was made a substantive part of the 1973 Constitution through an amendment.
The Constituent Assembly struggled to frame a Constitution for Pakistan. The Constitution could not be finalized as a tug of war started between the East and West Pakistan. There were many objections to the various drafts prepared of the Constitution but one of the main criticisms was that East Pakistan wanted more representation in the Central Legislature as East Pakistan had majority population but West Pakistan did not agree. Bengal also wanted more autonomy but this was not agreed to. The religious representatives were also not satisfied as there was no mention of establishing an Islamic society. Prime Minister Muhammad Ali Bogra tried to pacify the East and West wings of Pakistan by making various amendments to the draft of the Constitution. He distributed the offices of the president and the prime minister between the East and West Pakistan with other amendments to the draft of the Constitution, so that both wings of Pakistan are pacified.
In the year 1954 the basic draft of the Constitution was completed by the Constituent Assembly and was to be passed by the Assembly. But the Governor General Ghulam Muhammad was not happy with the draft of the Constitution as the powers of the governor general had been drastically curtailed. So to bar the passing of the Constitution of Pakistan, Governor General Ghulam Muhammad dissolved the assembly on 24th of October 1954. Prime Minister Muhammad Ali Bogra was ordered to form a new cabinet. In haste a cabinet was formed, the member of the cabinet included Major General Iskander Mirza, Dr Khan Sahib and General Muhammad Ayub Khan, who was the commander in chief of the Pakistan Army. This was the beginning of the Army governing the country even before a Constitution was framed for Pakistan.
The proclamation of emergency and the dissolution of the Constituent Assembly by the Governor General Ghulam Muhammad were challenged in Chief Court of Sindh by Maulvi Tamizuddin, the president of the dissolved Assembly. Maulvi Tamizuddin was a man of strong character and highly respected. A writ was filed under section 223-A of the Government of India Act 1935 challenging this illegal step taken by the Governor General Ghulam Muhammad. The Chief Court of Sindh accepted the writ petition of Maulvi Tamizuddin. Governor General Ghulam Muhammad went to appeal to the Supreme Court, known as the Federal Court then. The Federal Court passed a judgment in favour of the Federation of Pakistan and over turned the judgment of the Chief Court of Sindh, on technical grounds. The judgment of the Federal Court was of 64 pages but no finding was given as to, whether the governor general had the power to dissolve the Constituent Assembly. This judgment harmed the Constitution development in Pakistan and paved the way for the executive to use the judiciary to justify its malicious acts. (PLD 1955 Federal Court 240(Appelalte Jurisdiction) Federation Of Pakistan etc Vs Maulvi Tamizuddin Khan).
As the result of the decision of the Federal Court (Supreme Court) a legal vacuum was created so the Governor General Ghulam Muhammad promulgated the Emergency Ordinance IX of 1995 and through this Ordinance gave himself the power to frame the Constitution for Pakistan. The governor general’s Emergency powers were soon challenged in the Federal Court (Supreme Court). The Federal Court (Supreme Court) declared in the leading Constitutional Case ‘Usif Patel & 2 others vs The Crown’, PLD 1955 Federal Court 387 (Appellate Jurisdiction), that the governor general had no power to make provisions to the Constitution of Pakistan. After this decision of the Federal Court the country faced Constitutional crisis which was greater than when the governor general had dissolved the Constituent Assembly. The country was on the verge of a collapse. A Reference was sent to the Federal Court so as to come out of this legal disaster. PLD 1955 Federal Court 435 (Advisory Jurisdiction). The Federal Court relying on the alien concept of ‘doctrine of necessity’, validated the laws listed in the Emergency Powers Ordinance 1955. This was the beginning of the history of the doctrine of necessity in Pakistan, which made the country suffer more than words can express.
After the Usif Patel’s case the desire of the governor general to frame the Constitution was put to an end and a Constituent Assembly was constituted. This Constituent Assembly had the advantage that much work had already been done by the first Constituent Assembly. At last after nine years the first Constitution of Pakistan was enforced on 23rd of March 1956. The Constituent Assembly became the interim National Assembly, Governor General Iskander Mirza was sworn as the first President of Pakistan and Ch Mohammed Ali became the Prime Minister of Pakistan.
The 1956 Constitution was short lived as on 7th October 1958, President Iskander Mirza abrogated the 1956 Constitution and declared a coup d’Ètat and imposed martial law in Pakistan. He appointed General Muhammad Ayub Khan as the Chief Martial Law Administrator. Within weeks General Ayub removed President Iskander Mirza and took control of Pakistan. As the 1956 Constitution had been abrogated therefore General Ayub Khan promulgated ‘The Laws (Continuance in Force) Order 1958, so as to provide legal continuity to the country. The Supreme Court gave a legal cover to General Ayub’s martial law in the famous Dosso Case PLD 1958 Supreme Court 533 State Vs Dosso. The interesting aspect of Dosso case was that the legality of martial law was not challenged and these were old cases pending in the Supreme Court. But to please the man in power, Dosso case was set fixed for hearing by the Supreme Court, so that martial law could be declared as the new legal order.
After assuming power, General Ayub hand picked a team, to frame a Constitution for Pakistan. And on 8th June 1962 the Constitution came into effect, which the Pakistanis were forced to accept. But the 1962 Constitution was also short lived and on 25th March 1969, General Ayub Khan made an announcement on the radio that he could not deal with current prevailing situation in the country and was stepping down, appointing General Agha Muhammad Yahya Khan as his successor; he handed Pakistan to Genral Yahya Khan as though Pakistan was his inherited property. On the same day General Yahya Khan declared martial law, abrogated the 1962 Constitution and became the Chief Martial Law Administrator. The Supreme Court of Pakistan in Asma Jilani Case PLD 1972 SC 139, over ruled the Dosso Case and declared General Yahya Khan as an usurper. When this judgment was passed, General Yahya Khan was no more the Chief Martial administrator. Now at least Dosso case was no more a precedent for the Courts to follow but little did we know that Asma Jilani case, down the road of history, will not hold back the next dictators in line, General Zia-Ul-Haq and Pervez Musharef.
General Yahya Khan declared general election which were held in both wings of Pakistan East and West on 7th of December 1970. This was the first elections in Pakistan. In East Pakistan Mujib-ur-Rehaman won the elections and in West Pakistan Zulfikar Ali Bhutto won the elections. After elections the rift between the East and West wing of Pakistan widened to the extent which led to the fall of Dhaka in 1971 and East Pakistan became Bangladesh. After losing East Pakistan General Yahya still insisted to remain the President of Pakistan but there was a revolt in the army against him which forced General Yahya to resign. Bhutto was sworn in as the President of Pakistan on 20th of December 1971. Zulfikar Ali Bhutto on assuming charge started work on a democratic constitution for the country. On withdrawal of martial law, the National Assembly that had been elected in 1970 adopted an interim Constitution that came into force on 21st April 1972. Meanwhile the National Assembly constituted a committee to prepare a draft of the Constitution for Pakistan. The Committee worked relentlessly to prepare a Constitution for Pakistan. After debate in the National Assembly the final draft of the Constitution of 1973 was given approval on 10th April 1973. The Senate then approved the Constitution and finally on the 14th of August 1973 the Constitution of 1973 was enforced in Pakistan. According to the 1973 Constitution Mr Z.A Bhutto was sworn as the Prime Minister and Mr Fazl-e-Elahi was sworn as the President of Pakistan.
That the agony of Pakistan does not end here as Pakistan had to face usurpers like General Zia-ul-Haq and General Musharraf who ruled Pakistan as their kingdom. They did not abrogate the Constitution but made drastic amendments to the 1973 Constitution which changed the entire structure of the Constitution. Both the usurpers were legitimised by the Supreme Court in the cases Begum Nusrat Bhutto Vs Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657) and ‘Zafar Ali Shah etc Vs General Pervez Musharaf etc (PLD 2000 SC 869).
But the Supreme Court of today stood up to the military dictator General Pervez Musharraf, on 3rd November 2007, when General Pervez Musharaf decided to impose an emergency in Pakistan and replace the Constitution of Pakistan with the Provisional Constitutional Order. The Supreme Court issued a restraining order barring the government from implementing emergency rule and urging other government official not to help to do so. This courageous battle of the Supreme Court with a handful of honourable judges against the military dictator is a turning point in our history and the beginning of the building of the character of the Pakistanis, not to bow down to any military dictator. (‘Sindh High Court Bar Association through its Secretary Ministry of Law and Justice Islamabad and Others PLD 2009 S.C 879). The Supreme Court has put an end to the direct challenges to the Constitution but the fate of our future now depends upon our political leadership and the performance of their political government to make sure the rule of law is upheld and there is no room for any dictator ever in the future.
The writer is a practicing lawyer from Lahore. She has a Masters Degree From the University Of London. And a visiting faculty member of the Quaid-e-Azam Law College Lahore.