Athar Osama July 2nd, 2007
By: Athar Osama
In the first of the two pieces on Pakistan’s Constitutional Deadlock in early-1950s, on July 2nd, 2007, we looked at the emerging debate and unrest in the provice of East Pakistan. We examined the pendulum of constitutional progress swing all the way towards a pro-Punjab and anit-Bengal position in the interim report of the Basic Principles Committee and then all the way to a pro-Bengal and anti-Punjab position in the final report of the Basic Principles Committee. Unfortunately, Khwaja Nazimuddin became the first victim of this constitutional deadlock that existed between the two largest provinces of the country. In this artcle, we will examine the progress made under the new Prime Minister, Mohammad Ali Bogra–another Bengali–who almost provided Pakistan with its first Constitution.
Constitutional Progress through the “Mohammad Ali Formula”
With Khawaja Nazimuddin out of the picture, Mohammad Ali Bogra was installed as the new Prime Minister. Mohammad Ali Bogra was a statesman of Bengali descent who came from the family of Nawabs of Bengal (Wikipedia, 2007). At the time of his appointment as Prime Minister, he was serving as the country’s ambassador to the United States and was hurriedly called back to take over the Ministry.
Mohammad Ali Bogra had a tight rope to walk as he balanced the Punjabi interests—to whom he owed his appointment—and the Bengali resentment towards perceived domination by Punjabi politicians—most notably the Governor General himself (Sayeed, 1960, p. 418). In the Cabinet as well, Bogra had little support of his own as he tried to act as a go between the two powerful interest groups. Undaunted by this, however, Bogra took on the challenge for finding a compromise solution to the country’s constitutional impasse.
On October 7, 1953, the “Mohammad Ali Formula” was presented before the constituent assembly as a compromise solution of the problem of representation between Punjab and Bengal. The formula called for a bicameral legislature with upper house (the house of units) having a strength of fifty members equally divided between the five units of the country (10 each) and indirectly elected by the provincial legislatures. The lower house (the house of the people) was to have a strength of 300 which were divided amongst the five units as follows: East Bengal – 165, Punjab – 75, NWFP and Frontier states – 24, Sindh and Khairpur – 20, Baluchistan and other states – 5, others 11. In addition to the issue of numbers, the formula also apportioned equal power between the two houses of the legislature. Decisions on bills were to be made by a simple majority, provided, however, that such a majority included at least 30% of the members from each zone (East and West Pakistan).
The Formula achieved several things. First, the real beauty of the Mohammad Ali Formula was that, after adding up representatives in the two houses, it maintained exact parity (175 members each) between the Eastern and Western wings of the country. It also made representation in the upper house a function of geographical facts of the country with West Pakistan comprising a major part of the country’s territory having majority in the upper house. Similarly, representation in the lower house was made contingent on population with East Pakistan having a population advantage clearly gaining advantage in the lower house. Second, in requiring that all contentious matters be decided in joint sessions, it ensured that both zones of the country would be onboard on such decisions. A further safeguard was provided by the requirement of atleast 30% members from each zone voting for a measure before it could be adopted by the assembly.
It is interesting to look at the problems of early constitution-making in Pakistan. Clearly, there was great distrust between the two wings of the country, most specifically, between the two provinces of East Bengal and Punjab. What is particularly striking in this entire conversation is the fact that representation across provinces, the distribution of powers between upper and lower-house, and between center and provinces, are being seen as “zero-sum” game between the various units themselves and between the units and the center. There is, for example, little notion of or conversation regarding thinking about the constitution as a document that provides “checks and balances” between various branches and levels of government. In essence, the early framers of Pakistan’s Constitutions—and the trend continues till this day—were attempting to create a document (or formula) that could provide their party of affiliation the ability to dominate the other party instead of creating a document (or formula) specifically geared to not allow any party to dominate any other party. There is a fine difference between the two, but a difference that may have determined the future fate of democracy and constitutionalism in the country.
Compromise on the Relationship between Provinces and the Center
In addition to the issue of balance between provinces, the Mohammad Ali Formula also attempted to find a compromise on the relative distribution of power between provinces and the center. While Pakistan had been made on the promise of provincial autonomy—especially since that was the most favorable outcome for Muslims in a United India—and the Muslim League’s Lahore Resolution specifically called for the creation of “independent states” within Pakistan—a fact that Bengali politicians were quick to point out—little progress had been made on the issue of political autonomy. Quaid-e-Azam, in his life, while probably very cognizant of the difficulties of managing such a diverse and geographically separated country, had favored a central government strong enough to ensure Pakistan’s territorial integrity (Umar, 2001, p.78-79).
This left the framers of Pakistan’s early constitutions with two stark choices. A strong central government and weak provinces or strong provincial autonomy with a weak center. In the first instance, the authorities and legislative subjects authorities of the provincial government will be clearly defined and all residual powers (not specifically allocated to the provincial governments) will go to the center. In the latter instance, the center’s authority and legislative subjects will be explicitly defined and the provinces will receive residual powers. The former choice was unacceptable to the provinces while the latter choice was quite unacceptable to the central government. There was a need to strike a balance to satisfy the provinces’ demand for autonomy vs. the desire to have a strong center.
This debate, in any way, was not very unlike other states in the world that had adopted a federal structure. In United States, for instance, the Declaration of Independence (signed in 1776) provided for extreme provincial autonomy for each of thirteen post-colonial states to the extent that to First Congress was merely a consultative body with no means to enforce a decision on the states. This, the founders discovered, became a major problem in raising the army and war finances to fight the revolutionary war thus (perhaps) prolonging it by several years. With the culmination of the war, however, the pendulum swung the other way as George Washington—acutely aware of the challenges of providing security with a weak central government—weighed in heavily to create a strong central government during the Second Constitutional Convention (held in 1787) which created the America we know today.
Faced with the two stark choices or organizing center-province relationship—both of which were unacceptable—the framers of the Pakistan’s first constitution decided to adopt a middle (third) alternative. They drew from the work of British legal-constitutional experts who had suggested the model during the creation of the Government of India Act of 1935. The idea was to establish three lists of subjects on which central and provincial governments will share authority over. The first list, the federal list, will comprise subjects that only federal government could legislate upon. The first constitution, this list carried a total of sixty-six subjects including defense, foreign affairs, currency and banking, communications etc.
The second list, the provincial list, will comprise subjects that only provincial governments could legislate upon. In the first constitution, this list carried forty-eight items including law and order, public health, education, agriculture, trade and commerce etc. A third list, the concurrent list, will have additional subjects that both federal and provincial governments could legislate upon but neither would have the exclusive jurisdiction on. The Governor General, on a case-by-case basis, was to allocate the jurisdiction to central or provincial government. The concurrent list was the smallest of the three containing subjects such as relief and rehabilitation of refugees, broadcasting, criminal law, civil procedure, labor welfare etc.
While there certainly was a compromise that existed on the issue of centre-province jurisdiction at that time—there is no evidence to suggest that this formula was thrust down the throats of one or both parties—it would be interesting to get better insight into how the debate unfolded in the Constituent Assembly and what were the expectations of provinces—large and small—vis-à-vis how this arrangement would work out in reality. It would also be useful to ascertain the position of East Bengal and Punjab vis-à-vis this formula of power-sharing with the center and whether either of these became a party—implicitly or explicitly—with the center itself.
While there are some obvious merits to this approach—especially as the “second best” solution to Pakistan’s seemingly intractable constitutional problem—of apportioning jurisdiction between center and provinces, with the benefit of the hindsight, though, it is quite apparent that this arrangement did not work as well in reality. With the Governor General—and later President—fast becoming an instrument of the center rather than a symbol of the federation, it became difficult for him to act as a fair arbitrator between center and the provinces. Over the years, the provinces have accused the center of usurping on their jurisdiction by taking over more and more subjects on the concurrent list. This remains such a vexing problem in the province-center relations in Pakistan and has created such resentment among provinces that active movements for greater political autonomy and even cessation have been sustained through extra-constitutional means.
One Step Forward, Two Steps Backward
With the major constitutional questions settled, or so was widely believed, the Prime Minister Bogra asked his team of legal experts to begin drafting the constitution. Before they could complete their task, however, one significant altered the constitutional equation altogether.
Provincial Elections were held in East Bengal from 8 to 11 March, 1954. In these elections, Muslim League was comprehensively defeated by a United Front of three Muslim parties, namely, Awami Muslim League, Krishak Sramik Party, and the Nizam-i-Islam bagging 223 seats against Muslim League’s paltry 10 (Khan, 2001, p. 80). The United Front Coalition, among other things, demanded recognition of Bengali as an official language—alongside Urdu, the rejection of draft constitution and reformulation of the Constituent Assembly to allow for the newly elected members to participate in constitution-making, and complete autonomy for province etc. In the aftermath of the election results, many demanded the dissolution of the Constituent Assembly itself as it had become unrepresentative with the defeat of the old (Muslim League) order in East Bengal.
Mohammad Ali Bogra argued against doing so stating it was the members of the Constituent Assembly that had been tasked with framing the constitution and that there was no party inside the Assembly and so Muslim League’s defeat did not matter. He further stated that if the Constituent Assembly was dissolved and constitution-making started afresh every time a party of defeated in a province, they would never be able to develop a constitution since provincial elections took place in all five provinces at regular intervals. Following Prime Minister’s speech, Muslim League asked its Bengali members in the Constituent Assembly not to resign their seats.
Acknowledging the deep resentment of Bengali voters, the Prime Minister moved an amendment to the Basic Principles Committee Report recognizing Bengali as a state language (alongside Urdu). This unfortunately ended up opening a can of worms whereby other vested interests, especially the Punjabis, began pushing for other amendments to the BPC report. In Sept. 1954, Feroz Khan Noon suggested that perhaps a Presidential system of government, somewhat like America’s, would be more suitable for Pakistan. A zonal scheme was also presented to create sub-zonal federation in West Pakistan thus attempting to create a counter-weight to Bengali influence. Behind the door pressure for the acceptance of the zonal scheme mounted as Governor General himself started sending emissaries to pressurize leading politicians to accept the scheme. Those who resisted were threatened with PRODA investigations.
Matters came to a head when the Prime Minister himself was threatened by a PRODA investigation (Sayeed, 1960, p. 420). This sent all the parties in an over-drive. The Prime Minister, accurately estimating the threat to his own position, aligned himself with the Bengali-Sindhi-Frontier group in the Constituent Assembly to repeal the PRODA law. On Sept. 20, 1954, the Constituent Assembly met to repeal the PRODA law. On Sept 21, 1954, the Constituent Assembly passed another law that made an amendment in the Government of India Act of 1935 to take away Governor General’s power to dismiss a Ministry that enjoyed the confidence of the Constituent Assembly. Having done the needful to protect his government, the Prime Minister set the deadline of December 25, 1954 for the final vote on and promulgation of the new Constitution and proceeded to the United States to negotiate a loan agreement as well as to attend to some personal matters.
He had thought that with himself in the United States negotiating a very important loan, the Governor General would not embarrass him by dismissing him or the Constituent Assembly. He was proven wrong. On October 24, 1955, Governor General Ghulam Mohammad dissolved the Constituent Assembly. The official announcement indicated that he had done so on the advice of the Prime Minister. The Federal Court declared that while Governor General’s prerogative to dissolve the assembly was in abeyance until it was performing its task of constitutional building, “it must be held to have revived when it became apparent to the Governor General that the assembly was unable to or had failed to provide he constitution to the country” (Sayeed, 1960, p. 422). This was clearly not the case since the Constituent Assembly bad, after some initial glitches, made considerable progress on resolving critical issues and was well on its way to providing Pakistan with its first constitution on Quaid’s birth date.
That was not to be. Ghulam Mohammad is not only believed to have pre-empted the constitution to save himself from being stripped of his power to dismiss a Ministry but also to protect the interests of the Punjabi group within the Constituent who perceived that the Bengal-Sindh-Frontier group had teamed up against to impose a constitution that repugnant to them (Sayeed, 1960, p. 422). When Mohammad Ali Bogra returned from the United States, he was virtually a prisoner in the Prime Minister’s post. He had no influence on the formation of the new cabinet which included, for the first time, a serving Military Officer (General Ayub Khan) as a member. This also marked the beginning to the increasing influence of Military in civilian political matters in the country.
Within a span of just 3 years since Liaquat Ali Khan death, the political leadership of Pakistan had surely moved into the hands of bureaucrats and Military officers with the result that parliamentary and political institutions in the country had been seriously undermined. This struggle will only further worsen in the next few years. The civilian political leaders of the country made a last ditch attempt to regain political control by moving the case into the Sindh High Court and later the Supreme Court of Pakistan. The resulting verdict, and the drama, was not only breathtaking in how it shaped the then current order of things but also extremely far reaching in how it shaped Pakistan for several decades to come. We will look at this single most important judicial battle in Pakistan’s history next week…