Early constitutional problems from 1947-1956

Constitution as it has come to be understood in the realm of politics and statecraft is a set of basic laws with which a country is governed (Ahmed, 2004: 9). One cannot think of an organised life without laws. A state, being the highest organization of human beings, needs some sort of laws to put in order the governmental machinery which in turn will bring harmony, peace and progress to the inhabitants of a particular territory (Ahmed, 2004: 9). So, it is the constitution of a country, either written or unwritten, which gives a set of procedures for running the affairs of the government. It lays down the structures of the central institutions, the procedure of representations, the distribution of powers and resources and so on. When Pakistan emerged as an independent sovereign state, it had no constitution of its own. To run the business of the government, Pakistan adopted the Government of India Act 1935 with certain modifications under section 8 of the Indian Independent Act 1947. The Pakistan Provisional Constitutional Order 1947 established the federation of Pakistan that included east Bengal, the four provinces of west Pakistan (Punjab, Sindh, NWFP, the chief commissioner province of Balochistan) and any other areas that might, with the consent of the federation, be included therein, the capital of the new federation, and such Indian states as might accede to the federation (Choudhury, 1969: 23).

To have its own contemporary constitution which could represent the wishes of the people of Pakistan, the first Constituent Assembly (CA) of Pakistan came into being on July 26, 1947 and its inaugural session was held at Karachi from 10-14 August 1947. The CA was assigned with the dual task of preparing a constitution for Pakistan and also acting as a federal legislative assembly or parliament until it framed a new constitution (Ahmed, 2004: 10; Choudhury, 1969: 19; and Symonds, 1950: 45). After 18 months of labour, the CA passed the Objectives Resolution on March 12, 1949, under the first Prime Minister of Pakistan, Liaquat

Ali Khan. This Resolution provided the basic features on which the future constitution of the country was to be based. The passing of Objectives Resolution was described “as the most important occasion in the life of Pakistan, next in importance only to the achievement of independence” (Constituent Assembly of Pakistan Debates, Vol. 5, No.1; Choudhury, 1969: 35; and Symonds, 1950: 48). Besides other features, the Objectives Resolution provided for the federation of Pakistan by stating that:

Whereby 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” (Constituent Assembly of Pakistan Debates, Vol. V, No.1, 1- 11).

After laying down the broad principles of the future constitution, now it was the turn of the CA to undergo a lengthy process of constitution-making. Next, the CA appointed a Basic Principles Committee (BPC) consisting of 24 members who further set up three other sub-committees to work out the principles on which the future constitution of Pakistan was to be drafted. Each sub-committee was assigned a different task. To wit, the first was assigned the task of working out the federal and provincial constitutions as well as the distribution of powers between the centre and provinces; the second was assigned the task of franchise for the purpose of recommending whether Pakistan retained a separate electorates system of elections or joint; and the third was to work on the judiciary (Basic Principles Committee Interim report, 1950: 1-3; Chaudhary, 2002; Ahmed, 2004: 10; and Choudhury, 1969: 21).23

23 _{However, during the course of constitution-making, the BPC faced many problems. The important ones} were: the relationship between the state and religion, differences between east and west Pakistan on the structure of federation (especially on the question of representation in the federal parliament), the distribution of powers between the central and provincial governments, the controversy of language, and the issue of the national capital (Choudhury, 1969; Ali, 1996; and Burks, 1954). The controversy over the relationship between the state and religion was resolved, to a great extent after, passing the Objectives Resolution. Even so, the Resolution received criticism on many counts, especially from the non-Muslim members of the CA,

The problem of representation took a long time to be resolved. When the BPC presented its first report in 1950 it was criticised on many grounds throughout the country (for details, see Chaudhary, 2002 and Malik, 1988: 3-4). The first draft report provided for a federation of Pakistan with a bicameral legislature i.e., the House of Units and the House of People. The former was to represent the legislature of the units and the latter was to be elected directly by the people (Basic Principles Committee Report, 1950: 9; Waseem, 2010: 6; Chaudhary, 2002: 619; and Choudhury, 1969: 69). However, the report did not give details of the composition and size of the House of People. The report also did not mention anything about a state language “but Bengalis feared that Urdu alone might enjoy that status” (Sayeed, 1967: 68). It was made clear in the report that the existing provinces of Pakistan would enjoy equal representations in the House of Units. Under Part II Chapter II section 31, it gave the status of a province to Balochistan. It gave equal powers of legislations to both the houses of Parliament and stated that in case of any conflict on any matter, a joint session of both the houses would be convened for a final decision. The summoning powers were given to the head of state and were to be exercised in four cases only: if there arose a conflict between the two houses itself; if a conflict arose on the question of removal and election of the head of state; if a conflict arose on the question of consideration of the budget and money bills; and if a conflict arose on the question of consideration of a move of no-confidence in the cabinet. The report also recommended that the Ministry should be responsible to both the houses of Parliament (The Basic Principles Committee Report, 1950 and Choudhury: 1969: 69-70).

and from some of the orthodox Ulema (religious scholars) (for more details, see Constituent Assembly of Pakistan Debates, Vol. V, No. 2: 13-14 and Vol. V, No. 3: 38-49; Choudhury, 1955: 589-592; and Symonds, 1950: 48).

When this first report of the BPC was made public, it got severe criticism from eastern as well as western wings of Pakistan on various counts. The press in Punjab described the report as undemocratic and totalitarian (for details, see Malik, 1988: 3-4). The criticism from the province of Bengal was more severe. Consider: “the Pakistan Observer reported that Bengali reaction came from all walks of life – high officials, professors, teachers, students, medical men and police personnel etc, the first reaction of that of bewilderness [bewilderment]” (cited in Chaudhary, 2002: 619 and Malik, 1988: 4). The total population of Pakistan as per 1951 census was 75,842000 of which 56% (42,063,000) were in the eastern wing, while 44% (33,779,000) were in the western wing (Burks, 1954: 546). In spite of this, the eastern wing was treated as one unit while the western wing was divided into four units and other tribal areas. With the first report, the eastern wing, which had a majority of population, was cut down to a minority in the central parliament. The eastern wing objected to the equality of powers of both houses and the equal representation in the House of Units. The Bengalis rejected outright the first report of the committee because they took it to be anti-Bengali (Kokab, 2011 and Chaudhary, 2002). A Provincial Convention was held in Dacca where promises were made to the people of the eastern wing that they would not be converted into a minority. The convention recommended “a republican form of government, having of two autonomous regional governments for the eastern and western units and one central parliament on the basis of population with powers to deal with foreign affairs, currency and defence only” (Choudhury, 1969: 72).

Due to the strong opposition and agitations from the eastern wing, the BPC was asked to submit another report. It took almost two years to present a second draft before the CA (under the premiership of Khawaja Nazimuddin) on 22 December 1952. This report again became the centre of controversy (Khan, 2009: 68;

Ahmed, 2004: 10; Chaudhary, 2002: 620; Choudhury, 1969: 73; and Choudhury, 1955: 589-600).24

This report also proposed a bicameral legislature; the House of Units and the House of People. This time the composition of each house was made clear. The House of Units was to consist of 120 members, equally divided between eastern and western Pakistan. Out of the 120, the eastern wing would elect 60 members on the basis of proportional representation by means of single transferable vote and the remaining 60 were allocated to western units. The House of People was to consist of 400 members, equally divided between the two wings which were to be directly elected by the vote of the people. The number of members in House of Units and House of People allocated to western wing are given below in table 3.

24 _{The members who appended their signatures to this report were: Mualvi Tamizuddin Khan, Sir Chadra} Chattopadhyaya, Mualana Muhammad Akram Khan and Nurul Amin from East Pakistan, Sardar Abdur Rab Nashtar and Khan Abdul Qayyum Khan from NWFP, Mian Mumtaz Mohammad Khan Daultana, Mian Iftiharuddin and Begum Jahan Ara Shahnawaz from Punjab, and Abdul Sattar Pirzada from Sind (Ahmad, 1981: 17-18). After searching the relevant literature, I could not find any member from Balochistan.

Under the second draft, the House of People was given more powers as compared to the House of Units. In fact, the House of People was to enjoy the real powers. The role of the House of Units was diminished to being a revision and recommendation body in a time of urgency. The Council of Ministers were made responsible collectively to the House of People. All money bills were to be originated in the House of People only. The second draft report provided that if there arises any conflict between the two houses of the Parliament, then a joint session of both the houses would be convened where the matter will be decided by a simple majority (Constituent Assembly of Pakistan Debates, Vol. XII, No. 2: 92-107).

This draft clearly held the principle of parity between the two conflicting wings regarding the issue of representation in the central parliament. But this time the draft was rejected by the western wing, or more precisely by the Punjab, as the other smaller provinces like NWFP stood in favour of the draft (Choudhury, 1969: 75). The Punjab argued that the draft was treating a single unit as being of equal importance with all other units together. They “interpreted this report as an attempt to establish Bengali domination over the whole country” (Chaudhary, 2002: 620 and Sayeed, 1967: 68). Further, they termed the draft a violation of the federal principle, giving an example of USA where all the units enjoyed equal representation in the House of Units irrespective of their population and size. A hue and cry erupted in whole of the Punjab province against the proposed second draft. The press, the public, and the government officials, including members of Provincial Assembly, went about busily in criticising the parity formula of the draft (Malik, 1988: 8-12; Ahmed, 1981: 24; and Choudhury, 1969: 74).25

25

According to Sayeed (1960: 416), Daultana, the then Chief Minister of Punjab, was busy in mobilizing opposition to the Basic Principles Committee Report in west Punjab, even though he himself had signed the draft. Dualtana has in favour of unitary form of government. He held the opinion that if there is a federation,

Therefore, the second draft too suffered the same fate as the first one. It was proposed that the draft would be discussed in CA on 1st January 1953, “but on the demand of various parties, its consideration was postponed. Particular pressure to this effect had come from All-Parties convention held at Lahore on 28th December 1953” (Ahmad, 1981: 25).

In the meanwhile, riots erupted in Punjab on the issue of Qadiani and this created a severe law and order problem.26 It was believed that the Punjab Government of Mumtaz Daultana was an orchestrating force behind these riots in order to pressurize the federal Government of Daultana’s views on the constitutional issues (Ahmad, 1981: 25 and Sayeed, 1960: 361).27 Ahmed (1981) contends that Ghulam Muhammad (Governor General of Pakistan, who was ethnically Punjabi) was looking for an opportunity to establish his power, and therefore, used the Qadiani issue as a pretext to dismiss Khwaja Nazimuddin, a Bengali Prime Minster, on charges of being unable to control the riots. He then called Muhammad Ali Bogra (a Bengali), who was serving as Pakistan’s ambassador to the USA, and appointed him as the Prime Minister of Pakistan. Bogra had accepted the Governor General’s commission to form a new cabinet and thus had no say in the selection of his cabinet. Initially, the new cabinet consisted of 10 members but later it was increased to 15 (Afzal, 2001: 142).28 In all this, it was evident that the province of Punjab was not ready to accept the numerical majority of the eastern wing and was trying to impose the dominance of the western wing

then there should be equality of representation in the Upper House and no province in a federation should be in a position to dominate over the rest. See also Gupta in Grover and Arora eds. (1995:109-110).

26

Qadiani was/is a sect that has no belief in the finality of Prophet Muhammad (PBUH). They were mostly concentrated in the province of Punjab. During the 1950s, an anti-Qadiani movement was launched by the Majlis-i-amal (Committee of Action) which demanded the Central Government to declare the Qadiani as a religious minority.

27

However, Ahmed Saleem (1993: 17-22) in his work Ghulam Muhammad se Ghulam Ishaq Tak: Adlia ka

Siyasi Kirdar, states that the whole saga was staged by the Army to enable intervention in the political life of

Pakistan. This view is bolstered by the fact that the first Martial Law was imposed in the province of Punjab by the then secretary of defence, Iskander Mirza without any approval from the cabinet (ibid, 1993: 23). 28

In this 15 member cabinet, 2 were picked from Armed Forces of Pakistan (i.e., Major-General Iskandar Mirza and General Ayub Khan).

at any cost (Sayeed, 1960: 416). Furthermore, after his appointment as Prime Minister of Pakistan in 1953, Muhammad Ali Bogra proclaimed that it would be the first and foremost duty of his government to produce an amicable scheme to overcome the constitutional deadlock over the representations in the federal legislature. He presented a new formula, called the Muhammad Ali Bogra formula, before the CA on October 7, 1953. This was approved by the CA but before it could be written down in the form of a constitution, the Governor General of Pakistan, Ghulam Muhammad, dissolved the CA on 24 October 1954 (Ahmed, 2004: 10 and Sayeed, 1960: 421). The reason behind the dissolution of the CA was that Ghulam Mohammad was not prepared to accept the curtailment of his powers by the CA. There had been some such instance: firstly, the CA had passed a bill on 2nd August 1954 according to which it had appropriated to itself the power to make laws for the whole of the country; secondly, an amendment was passed on 21st September 1954 which declared the Council of Ministers to be the sovereign executive of the state and bound the Governor General to the advice of the Prime Minster; and thirdly, another bill was passed which repealed the most hated Public and Representative Offices (Disqualification) Act of 194929 and thus stipulated that all the cases instituted under that Act shall be deemed to have been dropped (Ahmad, 1981: 42-43 and see also Gupta in Gover and Arora, 1995: 17- 34; Sayeed, 1960: 421-422; and Saleem, 1993: 34-35).

The President of the CA, Moulvi Tamizuddin challenged the dissolution of the Assembly in Sindh High Court where the court unanimously concluded that “the Constituent Assembly’s purported dissolution was a nullity in law and that both the Constituent Assembly and its President continued to exist” (Dawood, 1994: 11

29

The Public and Representative Offices (Disqualification) Act of 1949 was also known as PRODA. The Act provided that any person found guilty by the Federal or a high court moved in this behalf by an Order of the Governor General or a Governor of misconduct in any matter relating to his office as a Minister, Deputy Minister or Parliamentary Secretary of the Federal or Provincial Governments or as a Member of the Central or Provincial Legislature, might be disqualified from holding any public office for a period not exceeding ten years by an Order of the Governor General (see Sayeed, 1960: 347-48)

and Afzal, 2001: 146-150). However, the federal government submitted an appeal before the Federal Court of Pakistan and the Court by its majority Judgement set aside the judgement of Sindh Court and recalled the Writs issued by the latter Court (Dawood, 1994: 15; Afzal, 2001: 146-150; for more details, see Saleem, 1993).30

The main features of the Bogra formula were as follows:

There was to be a bicameral legislature comprised of two houses of parliament to be known as the House of Units and the House of People, each consisting of 50 members and 300 members respectively. Under the Bogra formula, parity was maintained between the two wings, but this time instead of 10 units, he created five units: East Bengal, the Punjab, NWFP including frontier states and tribal areas, Sindh and Khairpur, and Balochistan including Balochistan Union, capital of the federation, and Bahawalpur. The seats in the House of Units were to be equally allocated to the five units so that each got 10 seats, while the numbers of seats in the House of People were to be allocated as per table 4.

30 _{However, Afzal maintains that the Federal Court was pressurized by the Central Government as ‘when} asked to comment on the possible course of action by the federal government in case the Federal Court upheld the Sindh Court ruling, the law minister observed that the Governor General had the authority to strip the courts of powers to issue any such writs after declaring a new state of emergency’ (see Afzal, 2001:148- 149).

Under the Bogra formula both houses were to enjoy equal powers. All decisions were to be made according to a simple majority on the conditions that such majority must include at least 30% of the members from each wing. The formula also provided for a joint session of the two Houses of Parliament in case of any difference of opinion between the two houses. Again all issues of differences were to be resolved by majority votes, but on the condition that such majority include 30% of the members from each wing (Choudhury, 1969: 77; Sayeed, 1960: 419; and Ali, 1996:78).

Muhammad Ali Bogra’s formula was better than the previous two drafts of the BPC because, besides maintaining the parity between the two wings, it distributed the seats in the House of Units according to geographical facts so that each unit got 10 seats. Thus, the western wing got 40 seats in the upper house and 135 in the lower house, while on the other hand, the eastern wing was allocated more seats in the lower house as per her majority population (Choudhury, 1969: 77). Also, Bengali was declared as a national language alongside Urdu (Ahmad, 1981: 30).

However, this formula also received criticism from various quarters. It was criticised on the grounds that the 30% clause might obstruct the smooth working of the constitution and would ultimately result in a complete constitutional