Constitution making in Pakistan:

Constitution making in Pakistan:

An exercise replete with constant amendments

By Aqeel-ul-Zafar Khan

 

One of the most delicate issues faced by the British Government in India attributed to complex communal problems; the different communities residing in the vast continent of India, professing diverse faiths, inherited district social and political traditions, divided by the regional and geographical areas, always created a difficult task for the policy makers in their efforts to unite the people on a common platform. During the 20th century the British Government initiated efforts to establish a legal framework order to streamline the aims and objectives of different communities.

The Acts of 1909 and 1919 were designed to meet the ever-increasing needs of the educated Indians, who demanded substantial share in the management of public institutions. Imbibed with national spirit and driven by the dream of freedom from the foreign yoke, the Indian leaders, irrespective of their political affiliation, pressurised the British Government to introduce reforms in the public institutions of India. Realising the growing discontent among the Indian people, the British Government invited the prominent persons, representing various interests and classes, to England to participate in the Round Table Conferences held in 1930-32. The delegates deliberated on the basic issues and tried to evolve a viable constitution, catering to the needs of the rulers as well as the ruled. It was a unique exercise in the history of constitutional development. The British parliament passed the Government of India Act on August 2, 1935, providing a framework for the future development of a popular constitution. The Act was amended by the British parliament on  July 18, 1947, as the Indian Independence Act, setting up in India, two Independent Dominions.

On August 14, 1947 Pakistan came into being as an independent country. The preparations for the constitution of the new dominion were commenced with the election of the Quaid-i-Azam Muhammad Ali Jinnah as the first president of the Constituent Assembly of Pakistan on August 11, 1947; it was a historic occasion. Addressing the Constituent Assembly the Quaid said,

"The Constituent Assembly has got two main functions to perform. The first is the very onerous and responsible task of framing our future constitution of Pakistan and the second of functioning as a full and complete Sovereign body as the Federal Legislature of Pakistan."

Identifying the major problems to be confronted by the Legislature he pointed out, "The first observation that I would like to make is this: You will no doubt agree with me that the first duty of the government is to maintain law and order, so that the life, property and religious beliefs of its subjects are fully protected by the State. The second thing that occurs to me is this: One of the biggest curses from which India is suffering - I do not say that other countries are free from it, but, I think our condition is much worse - is bribery and corruption. (Hear, hear). That really is a poison. We must put that down with an iron hand and I hope that you will take adequate measures as soon as it is possible for this Assembly to do so."

Condemning the evil of black-marketing, he categorically stated, "A citizen who does black-marketing commits, I think, a greater crime than the biggest and most grievous of crimes. These black-marketers are really knowing, intelligent and ordinary responsible people, and when they are indulged in black-marketing, I think they ought to be very severely punished."

Another evil he described and which needed to be crushed in the new state was nepotism and jobbery. He declared, "I want to make it quite clear that I shall never tolerate any kind of jobbery, nepotism or any influence, directly or indirectly, brought to bear upon me. Wherever I find that such a practice is in vogue, or is continuing anywhere, low or high, I shall certainly not countenance it".

In this speech he laid down important guiding principles to be followed by the lawmakers and administrators. He briefly stated his ideas about the duties of the future state. Rejecting the criticism against the creation of Pakistan, he referred to the prevailing situation. He said, "Any idea of a United India could never have worked and in my judgment it would have led us to terrific disaster. Maybe that view is correct; maybe it is not; that remains to be seen."

The question of minorities remained a core issue in any political adjustment. In spite of countless efforts, both individual and collective and private and official, Hindu-Muslim unity became a dream, never to be realised. The partition of India conclusively decided the fate of the minorities in each dominion. The minority issue acquired a new dimension in parameters of Pakistan. In spite of the prevailing hatred and discontent, the Quaid assured the minorities that their rights and interests would be safeguarded. He laid down the noble principle for the posterity of Pakistan, "Now if we want to make this great State of Pakistan happy and prosperous we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet, you are bound to succeed.

If you change your past and work together in a spirit that every one of you, no mater to what community he belongs, no matter what relations he had with you in the past, no matter what is his color, caste or creed, is first, second and last a citizen of this State with equal rights, privileges and obligations, there will be no end to the progress you will make."

Pakistan, being an ideological state, was demanded to establish an Islamic State which created fears in the mind of the minorities about the safety of their own religion and culture. To remove this misconception the Quaid declared: "You are free: you are free to go to your temples; you are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion or caste or creed -- that has nothing to do with the business of the State." He further stated that "in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State."

Concluding his historic address, he pronounced his policy, reflecting his noble sentiments, "I shall always be guided by the principles of justice and fairplay without any, as is put in the political language, prejudice or ill-will, in other words, partiality or favouritism. My guiding principle will be justice and complete impartiality, and I am sure that with your support and co-operation, I can look forward to Pakistan becoming one of the greatest Nations of the world." The Quaid's speech was appreciated worldwide; even his opponents admired the liberal and secular ideas expressed in the speech. However, questions were repeatedly asked about the pattern of the constitution, which he articulated in his broadcast speech to the people of the USA in February, 1948.

"The constitution of Pakistan has yet to be framed by the Pakistan Constituent Assembly. I do not know what the ultimate shape of this constitution is going to be, but I am sure that it will be of a democratic type, embodying the essential principles of Islam. Today, they are as applicable in actual life as they were 1,300 years ago. Islam and its idealism have taught us democracy. It has taught equality of man, justice and fair play to everybody. We are the inheritors of these glorious traditions and are fully alive to our responsibilities and obligations as framers of the future constitution of Pakistan. In any case Pakistan is not going to be a theocratic state- to be ruled by priests with a divine mission. We have many non-Muslims- Hindus, Christians and Parsis- but they are all Pakistanis. They will enjoy the same rights and privileges as any other citizens and will play their rightful part in the affairs of Pakistan."

After his death Prime Minister Liaquat Ali Khan, inspite of the critical situation faced by the country, devoted his energies for the preparation of the constitution. On March 7, 1949 he moved in the Constituent Assembly, the Objective Resolution, embodying the main principles on which the constitution of Pakistan was to be based. The objective resolution became preamble of future constitutions.

"In the name of Allah, the Beneficent, the Merciful;

Whereas sovereignty over the entire Universe belongs to God Almighty alone and 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;

This Constituent Assembly, representing the people of Pakistan, resolves to frame a constitution for the sovereign independent State of Pakistan. 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 accord with the teachings and requirements of Islam, as set out in the Holy Quran and the Sunnah; Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;

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

Wherein 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 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. The first constitution of Pakistan was prepared in eight years. The Constant Assembly was dissolved by Governor General Ghulam Muhmmad in October, 1954. A new Assembly tackled the task vigorously and on February 29, 1956, presented the first constitution which was promulgated on 23rd of March, 1956 as the constitution of the Islamic Republic of Pakistan. However, its life was very brief and on October 7, 1958, the first Martial Law was imposed in Pakistan and the constitution was abrogated. The Martial Law regime appointed a Constitution Commission which produced its report in 1961 and a new constitution was promulgated by President Ayub Khan based on the basic democracies and presidential system. This constitution was also abrogated by General Yahya Khan when he imposed Martial Law in 1969. The nation remained without a constitution till 1973 when a new Constituent Assembly adopted the present constitution unanimously.

The Constitution is considered a sacred document to be preserved and protected. It signifies the aspirations of a nation. However, in the case of Pakistan, the constitution was neither respected nor implemented in letter and spirit. The present constitution was amended on a number of occasions to serve the needs of the rulers. God knows how long the country would face this situation which is becoming alarming every day. God save Pakistan. (Ameen)

--The author is a former

research fellow-Quaid-i-Azam Academy