Pakistan, like any other postcolonial state, continued to stick to the structures laid down by the British even after independence. Thus, the birth of Pakistan marked a continuity and not a break from the colonial past.
The legal structures and the bureaucratic corp remain the same as they were in the British period. The British officials worked hard to see the ascendancy of bureaucracy in the state structure of the newly-founded Pakistan at the expense of the political actors. One of such figures was Sir Ivor Jennings (1903-1965), who worked from the backstage to make sure that the parliamentary system was sent off-rails.
The role of Jennings from mid 1954 to early 1956 was, what Dr Harshan Kumarasinghe, a political scientist of extraordinary merit calls, ‘sinister’. Dr Harshan, in fact, is the one who gave me a stimulus to write on Ivor Jennings. Much of what follows in this article are the findings derived from the extended conversation with him and material that he shared with me. Before analysing the ‘sinister’ role that Jennings played in giving a peculiar twist to the course of the constitution-making, it will be worthwhile to look at his brief introduction is furnished.
Jennings joined the Leeds University as a Lecturer in Law in 1925 and became a Holt Scholar of Gray’s Inn and was called to the bar in 1928. The following year he joined the London School of Economics as a Lecturer in Law. Jennings was sent to Ceylon by the British government in 1942, as the Principal of the University College, Colombo with a mandate to create a university for that land, then a Crown colony. The institution, on the model of University of London, was dubbed the University of Ceylon and was first established in Colombo then partially transferred in 1952 to a purpose-built campus in Peradeniya.
During the Second World War, he served as the deputy civil defence commissioner. He was knighted in 1948, made a QC in 1949, and awarded the KBE in 1955. In 1955, Jennings received an honorary doctorate by a vote of the senate of the University of Ceylon to recognise his work in creating and building the institution. A hall of residence at the University of Peradeniya is named in his honour. In the same year (1955), he returned to Britain to take up the post of Master of Trinity Hall, University of Cambridge. He subsequently served a term as vice-chancellor at the same university, a position which at that time rotated among the heads of the colleges.
Jennings had earned the reputation to be an authority on constitutional law and authored a definitive book on the workings of the then British constitution. He advised D.S. Senanayake in drafting the constitution of Ceylon to form the Dominion of Ceylon. He was also a member of the Reid Commission from June 1956 to 1957, which was responsible for drafting the Constitution of the Federation of Malaya (now Malaysia).
As Harshan revealed, Ivor Jennings was first recommended to Jinnah in July 1947 by a member of Lord Mountbatten’s staff as someone adequately equipped in constitutional matters and he could come in handy in drafting of Pakistan’s constitution. In July 1954, he came to Karachi on the invitation of the drafting committee of the constituent assembly.
Some sources suggest that Sir Edward Snelson, federal secretary in the department of law, was in fact instrumental in persuading him to come over. These facts suffice as convincing evidence that British officers were wielding considerable influence in the constitution-making of Pakistan in the 1950s.
By October, 1954, as A.G. Noorani on the authority of McGrath notes, "The approved clauses of the basic principles Committee Report were drafted into a formal constitutional document by the drafting committee, and on October 15 sent for printing to the Government Printing Office, which published the document under the title ‘The Draft Constitution of Pakistan, Confidential’." Then the document was sent to Jennings for perusal and he made "extensive but minor changes in the draft".
With the draft being finalised, it was likely to go into effect on December 25, Quaid-e-Azam’s birthday. While the then prime minister, Muhammad Ali Bogra, quite complacently proceeded to the United States, Ghulam Muhammad dissolved the constituent Assembly on October 24, 1954.
Those having even some smattering of the history and politics of Pakistan must be aware that Maulvi Tamizuddin Khan, the then president of the Constituent Assembly backed by Abdur Rab Nishter and his other lieutenants, challenged the legality of the dissolution on November 8, 1954. The petition, drafted by Syed Sharifuddin Pirzada, was filed at the Sindh High Court. Besides Pirzada, D.N. Pritt and I.I. Chundrigar represented Tamizuddin Khan in the court and won the case.
Ghulam Muhammad and the government then approached the Federal Court against the Sindh High Court’s verdict. In that circumstance the services of Ivor Jennings were invoked once again but in a different capacity. Sir Edward Snelson was instructed to contact Jennings in Ceylon who, after somewhat lengthy correspondence, concurred to represent Governor General against the institution (Constitution Assembly) whom he had served before, for quite a hefty fee.
Thus, he came to Pakistan to advise and represent his new client in the Federal Court. Jennings notes in his diary that Dr Harshan has retrieved from the archives say, "We lost in the Chief Court of Sind(h) but won in appeal at the Federal Court. This decision put the legal system into complete chaos. I had worked out, and drafted, an ordinance under which most of the laws would be validated and a new Constituent Assembly summoned…." Then he says, "At the last moment, the provision for a Constituent Assembly was deleted and a vague clause inserted under which the Governor-General might have enacted a constitution by ordinance."
These quotations from Jennings’ diary provide us with an evident testimony that the authoritarian agenda of the Pakistani ruling oligarchs was validated by the British officers like Snelson and Jennings.
Even after Pakistan’s independence, the role of the British officers in undermining the process of parliamentary democracy is not properly studied. That aspect of Pakistan’s history is brought to light but rarely in the textbooks, which is an omission of colossal proportion. More so, such continuities and connections between the colonial past and postcolonial present are to be understood in a proper context. These continuities, undoubtedly, hold precedent over the rupture, if any, wrought by the independence.