Constitution Making in Pakistan (1947-1956)

Download pdf (right click and 'save as target') or Continue Reading

Online
Constitution is a basic document which sets out the framework for governance and exercise of
power. It defines the powers of the institutions and sets out the relationship that exists between
different state institutions. It also describes the powers within which these institutions have to
work and what would be the nature of relationship of the individual with the state.
At the time of establishment of Pakistan an Interim constitution was introduced in Pakistan
which was a modified version of the India Act 1935.The task of framing the future constitution was
assigned to the CA of Pakistan that came into existence on Aug 1947.We will discuss that what were
the stages and what were the steps that were taken for framing the constitution of Pakistan.

The whole process of constitution making started with the passing of the Objective
Resolution. The Objective Resolution which was passed in March 1949 outlined the basic principles
and foundations of the constitution. The principles that had to be kept in mind by the constituent
assembly of Pakistan while framing the constitution. In a way the Objective Resolution not only
identifying the objectives, the goals they wanted to achieve it was also setting out the priorities that
had to be pursued.

Once the Objective Resolution was passed by the Constituent Assembly then the steps had
to be taken for the formulation of the constitution and the 1 st step after the passing of the Objective
Resolution was to set up the BPC (a committee comprising the members of theca of Pakistan).The
strength of the BPC was fixed as 24.But the committee had to co-opt more members if it needed
but at least there were 24 members they were Muslims and non-Muslim members and also women
were the members of the BPC.Along with BPC some sub committees were also set up primarily to
assist the BPC.These sub committees were assigned some specific tasks to deal with some specific
issue and I can give you examples that one such committee dealt with the issue of federalism. What
kind of federal model Pakistan was to adopt, this sub committee was to look into the matter and
then report back to BPC.There were other sub committees for example a committee on judiciary to
look into the judicial set up that was to be established in Pakistan. Another sub committee on
fundamental rights the civil and political rights that were to be given to the citizens of Pakistan and
there was also a committee on the minorities the non Muslims who were also the citizens of Pakistan.
So in this way there were a lot of sub committees I have given you some examples but there
were more sub committees than I have mentioned. So the BPC and the different sub committees
deliberated on different aspects of constitution making and then they prepare a report that is called
the BPC First report.

First Basic Principle Committee’s Report: 1950:

We are calling it 1st report because the BPC prepared more than one report so that we are
calling it 1st and 2nd report and so on so that we can identify the different efforts made by the BPC.So
the 1st report was presented to the constituent assembly in 1950 and this report outlined certain
broad and key principles, it was not framing the constitution, it was identifying certain broad
principles. That was to serve as the basis and foundations of the constitution.
Let me mention certain recommendations which the BPC, s 1st report of 1950 made so that you have
an idea about the kind of system they wanted to introduce in Pakistan.
1. First important recommendation by the BPC report was that the Objective Resolution would be
included in the constitution of Pakistan as the directive principles of policy as guideline of policy
making.

2. Another important recommendation was that the head of the state that was to be named as the
president was to be elected by the joint session of the parliament for five years; it means that a
person could hold the presidential office for five years. The president was given some discretionary
powers and certain other categories of power were recommended to be assigned to the president.
Although the authority was to be exercised by the PM.

3. So for as the legislation was concerned the 1st report had recommended that there will be two
houses the upper house and the lower house and the principle recommended here for the
composition for the two houses was that the upper house all provincial units have equal
representation and in the case of lower house recommendation was to be given on the basis of
 population, it means that if a province have more population it will have more representation and in
that case East Pakistan had more population than West Pakistan and it had more representation in
the lower house. So for as powers were concerned powers were equally divided between the two
houses that meant that both houses had same kind of powers
4. Cabinet and the PM were to be answerable to both houses of the parliament.

5. In this way it tried to provide certain basic principles, however this report was silent on the issue
of National Language what would be the National Language of Pakistan the report was silent and it
didn’t make any kind of recommendation.
Criticism:
When this report was presented to the Constituent Assembly there was criticism in the house
and outside the house one basic criticism was on the issue of representation which was an important
issue the constituent assembly had to deal with and here we see that on the question of
representation there was a criticism that if you provide equal representation to all the units of a
federation then the Western part had more representation because the western part had more units
and there was only one unit in East Bengal. So the feeling was that the Western part would have
more representation. Then there were couple of other issues that were raised in the constituent
assembly with reference to the 1st report. For example the issue of equal powers to both houses the
general principle is that the lower house has more powers and the upper house has less powers that
is the standard principle in the parliamentary system of govt but here both houses had equal powers
so this was criticized and then the issue of national language that it should said something about
national language.
Now keeping in view this criticism it was decided that the BPC will review the report in the
light of points raise and criticism in the constituent assembly. So the constituent assembly
deliberated on this so that the points raised in the constituent assembly and outside could be
incorporated and the report is made more acceptable to the representatives. So it reviewed the
recommendations and brought back the revised or the second report.

Second BPC Report 1952:

The 2nd report or the revised report generally followed the same principles but it tried to
accommodate the criticism made on the 1st report and I will give you just one or two examples to
illustrate my point that what kind of changes it made in the 1st report.
1. One issue was the question of representation how should different provinces of Pakistan one province
in the Eastern wing and more than one province or the administrative units in the Western part
should be provided representation. So the 2nd report followed the principle of equal representation
to both wings of Pakistan.60 members from the Eastern wing and 60 members from the Western
wing or the Western part and then these 60 seats allocated to the western part were further divided
among the different provinces of the western part. The same principles applied to the lower house
200 seats were given to the Western part and 200 seats for the Eastern part and then again the
western seats were further divided among various provinces also different administrative units in
the western part of Pakistan.
2. More powers were to be given to the lower house the house which represents the people that was
given more responsibility.
3. It also emphasized that in Pakistan law making would be n accordance with the principles of Islam.
This was in a way a reflection of the Objective Resolution where sovereignty over entire universe
had been assigned to Almighty Allah and it was to be exercised by the state of Pakistan through the
representatives of the people within the limits prescribed by Him and there would be no law which
violates the principles and teachings of Islam.
4. In order to facilitate that it was also decided that an advisory board comprised of 5 religious scholars
was constituted who would advise on the matter of law making in accordance with the principles and
teachings of Islam.
2nd report was also silent on the issue of national language. However it definitely accommodated
some demands, the issue of representation the fear that the East Pakistan would dominate West
Pakistan was care off.
Criticism:
However there was criticism that why equal representation. In the case of the 1st report
some were saying equality and here some were saying why equality had been created. But the
2ndreport accommodated the issues that were raised in the 1 st report. This report was declared
against the principles of federation. The West Pakistan favored equality only for upper house. While
the report was being discuss there was a political crises in Pakistan.PM Nazimuddine was removed
from his office due to this crises and the new PM Ch.Muhammed Ali became the new PM.
Third Report (Muhammad Ali Bogra Formula) 1953:
Ch.Muhammad Ali and his team deliberated on all the issues and prepared a report which s
called as 3rd report but generally in Pakistani history it is called as The Muhammad Ali
Formulabecause MAB was the PM and under his leadership a new set of proposals was prepared
which he represented to the Constituent assembly and therefore it is generally describe as the
Muhammad Ali Formula for the constitution making.
This formula was presented in October 1953 revised the original proposals in the lights of the
comments and criticism and it adopted a novel procedure for providing representation to different
units of Pakistan. It decided that in the case of upper house there will be equal representation to all
the units of Pakistan and for this purpose Pakistan was divided into five units’ one unit was East
Pakistan and four units were in West Pakistan and each unit was given equal representation it means
that in the upper house 10 members were from Eastern part and 40 members were to come from
the four units of West Pakistan.

In the lower house more representation was given to Eastern part because that had more
population than the western part. So according to this formula 165 seats were given to East
Pakistan and from the western part the strength of the members was 135 and this was the
application of principle of representation on the basis of population. So in this case the standard
principle of federalism was followed that is in the upper house the units of federation were given
equal representation and in the lower house the units are represented on the basis of population.

However there s a unique feature here although the standard principle of federalism is
followed but whenever the parliament met in a joint session there was parity or equality between
the two wings of Pakistan. Let me explain this in the case of Eastern Pakistan it had 10 members in
the upper house and 165 in the lower house the total were 175.In the case of Western Part there
were 4 units each sending 10 members and total 40 members and in the in the lower house West
Pakistan was to send 135 members and total members from West Pakistan were 175, So it is the
principle pf parity or equality when the parliament meet in a joint session.

There was another provision provided in this formula that although decisions were to be
made by the majority vote but this decision could not be effective unless at least 30% of members
from both zones vote in favour of this, So 30% members from both wings are required to have
majority for any law making. In this way this proposal incorporated the principle of parity with inter
dependence. Parity in a sense that in case of joint session both wings have equal representation.Inter
dependence that 30% member from both wings are included in the required majority for any law
making. So in other words one wing could not get it away what it wanted, it had to seek the support
of the other side, so parity and interdependence are built in the system through this proposal.

Criticism:
This proposal provided for equal powers to both houses and they could also take up issues
in joint session. This proposal was received with greater welcome however there was some criticism.
There were certain points mentioned here by the members were, one issue was that it was providing
for unreasonably complex process. You divide Western part into four units and Eastern part in one
unit then the allocation of seats that is to be done parity at the joint session level and then 30%
clause, so some people were saying and some newspapers were writing articles that this would
become a complicated process. But generally this proposal was accepted although there was criticism
over here and there in the parliament and outside the parliament.

Another issue that attracted some criticism was the issue of equal powers to both houses
and some people were saying that since the lower house represents the people therefore lower
house should have more powers but in this proposal both houses were given equal powers. Another
significant measure during this period which facilitated the constitution making was the settlement
of the language issue. In 1954 he Constituent Assembly of Pakistan decided that the Bengali and
Urdu would be the national languages of Pakistan. This decision facilitated the constitution making
process.

The acceptance of two languages helped to defuse the controversies that had emerged in constitution
making. In this way this issue amicably settled to the satisfaction of most political leaders and
political parties.
 After this the Constituent Assembly devoted itself toward the making of the constitution and
the drafting of the constitution started that is by the summer of 1954 all the basic principles had
been agreed to by the CA and drafting had started and in fact by October 1954 good part of the
constitution had been drafted by the committee or group of people ,constitutional experts, legal
experts who were drafting the constitution, and it was assumed that very shortly the draft
constitution would be presented to the constituent assembly that would deliberate on it discuss the
draft and make changes if required and ultimately the constitution would be approved and it was
expected that very soon Pakistan would have its own constitution.

However a sudden development in the same month October 1954 created a situation that
delayed constitution making and that development was on 24 October 1954 GG Ghulam Muhammad
decided to dissolve the CA of Pakistan exercising his powers as the GG.He argued that the CA of
Pakistan had been dealing with the constitution for a long time, that the CA came into existence on
Aug 1947 and this was Oct 1954 and his argument was that this CA was not able to make the
constitution and it had make the constitution making a perpetual process therefore he could use his
powers to dissolve the CA,that mean that the whole effort to make the constitution came into a
standstill. Dissolution of the CA also meant that the govt of PM Muhammad Ali Bogra came to an
end but the GG asked him to set up a new govt which included some old ministers and some new
ministers and in this way constitution making was delayed.

One result of this dissolution of the CA of Pakistan by the GG was that this matter was taken
to the superior judiciary foe adjudication; the president of the CA at that time Maulvi Tameezuddin
moved the case first to Sind chief court and then to the federal court of Pakistan and this was known
as the Tameezuddin case. This legal and constitutional battle in the Sind chief court and then in the
federal court went on for several months and the federal court through various judgments which it
gave from time to time and also through its advisory opinion which the federal court gave to the GG
during the same period the ultimate decision or the resolution was that the GG was able to get a
away with the dissolution of the CA of Pakistan but the federal court directed that the new CA will
have to be elected.

GG could not nominate anybody but it had to be elected therefore by keeping in view the
judgment of the federal court and the advisory opinion of the federal court the govt of Pakistan
decided to hold new elections for the 2nd CA.These elections were indirect that were held in June and
July 1955 and the 2nd CA started its session in July 1955.In the case of 2nd CA two things were
different from the 1st CA.In the 1st CA the ML was the majority party while in the 2nd CA no political
party had an absolute majority and in the case of 2 nd CA the membership was 80 out of which 40
from East and 40 from West Pakistan so in a way it was a principle of equality and parity.
The 2nd CA took up on its task of framing the constitution of Pakistan and in order to deal
with this issue the 2nd CA did not start from the beginning, it could make use of all the work done
by the earlier CA.It was in a way building on what the 1st CA had done. The important step taken by
the 2nd CA was the integration of the province of West Pakistan and it is also known as the One Unit
Scheme for Western Pakistan. In the case of West Pakistan there were 3 provinces, Balouchistan
was not a full province but a different administrative unit, other than these 4 major units there were
princely states, what was done in 1955 that all these administrative units in the West Pakistan were
integrated into the province of West Pakistan.
Smaller administrative units were abolished all the provinces and units in West Pakistan lost
their separate identity and were integrated into West Pakistan. So this is or what is called as the
One Unit Scheme for West Pakistan and because of this there were only two provinces in Pakistan
East Pakistan and the West Pakistan and in this way the issue of representation was resolved,
although in the smaller provinces and units of West Pakistan there was criticism of setting up of this
integrated province of West Pakistan.

Nevertheless, this integration in the constitution making process in Pakistan and after that
the CA began to deal with the constitution, it discuss the constitution and the draft of the constitution
was released for the CA and for the public at large on 8th January 1956 that is the draft text of the
constitution. This text was discussed in the CA, outside the CA and then the CA approved the
constitution on 29th Feb 1956.The next stage in the making of the constitution was the approval of
the constitution by the GG of Pakistan, that is his signatures were required and at that time Sikander
Mirza was the GG of Pakistan and on March 2nd ha signed the constitution that has been approved
by the CA and in this way it became the constitution of Pakistan. This constitution was enforced on
23rd March 1956 and it replaced the Interim Constitution of Pakistan that was introduced in Pakistan
in Aug 1947.In this way the long run effort to make the constitution of Pakistan was successful in
giving this country a constitution of its own which became operative on 23 rd March 1956.