The Coup, The Constitution, and the Bureaucratic Musical Chairs - 2/3 (1955-58)
Athar Osama July 9th, 2007
The Constitution
Having looked at the “Constitutional Coup” of 1954 and its repurcussions in the form of Justice Munir’s historic judgment, we now turn towards the Pakistan’s renewed quest for a Constitution.
An Era of Legal Challenges
With Justice Munir’s verdict in the Tamizuddin Khan case, not only did the Constituent Assembly stood dissolved but also seve
n long years of important legislation was eliminated by a stroke of a pen. Forty-six Acts on the statute books became invalid thus putting the country in a legal vacuum making it almost impossible to govern. Days after the judgment, the Governor-General promulgated Emergency Powers Ordinance IX of 1955 that give him the power to:
- Make provision for framing the Constitution of Pakistan
- Make provision to constitute the province of West Pakistan
- Validate laws which have been passed by the Constituent Assembly but had not received assent of the Governor-General
- Authenticate the Central Budget
- Name East Bengal as East Pakistan (Khan, 2001, p. 89)
Governor-General’s Emergency Powers Ordinance was immediately challenged in the court. In Usif Patel vs. The Crown, Chief Justice Munir sided with the petitioner and declared the Emergency Powers Ordinance IX of 1955 as ultra vires (without legal authority). In a major flip-flop of his earlier decision, Justice Munir’s judgment recognized the continuing authority of the Constituent Assembly, and nobody else, to make any provisions to the country’s Constitution. Ironically, this was the same Constituent Assembly that had stood dissolved through his decision in the Tamizuddin Khan case.
The court noted that since the Governor-General Emergency Orders were being issued under the Section 92-A of the Government of India Act of 1935 (that was being used a Constitution for the Country at the time) and that Section 92A itself had not received Governor-General’s assent in the past, the Governor-General had not vehicle to either amend the Constitution or issue an Emergency. This decision further deepened the constitutional crisis already prevalent in the country. There was no federal legislature competent enough to validate the laws declared null-and-void by the court. The Governor-General alone could not do it because it was deemed to be beyond his powers to amend the constitutional and the provincial legislatures themselves stood null-and-void since the laws that brought them into existence were now considered illegal. Hamid Khan—the noted Lawyer and Constitutionalist—describes the situation as follows:
“The entire legal and administrative system was on the verge of a collapse. The courts were flooded with cases challenging various actions of the government. The continued uncertainty about legal proprieties was bad for the government, for business, and for the organized life of the citizens”. (Khan, 2001, p. 91).
The Governor-General, in an attempt to get out the constitutional crisis, summoned a “Constitutional Convention” to meet on May 10, 1955. He also requested the Federal Court to provide “advice” on what interim steps could be taken to validate the laws that stood invalidated by the Court’s actions. On April 16, 1955, the Governor-General assumed powers to validate thirty-five laws “subject to any report from the Federal Court” and the meeting of the Constitutional Convention.
It is in response to this reference by the Governor General – “Reference by HE the Governor-General (PLD 1955, FC 435)” that the Federal Court sided with the Governor General in his action of dissolving the Constituent Assembly which, according to the Court’s judgment, “was unable to carry out the duty to frame the Constitution of Pakistan, …. [had become] unrepresentative of the people of Pakistan and ceased to be responsible to them…[had] assumed the form of a perpetual legislature…[and had wrongly] asserted that the provisions made by it for the constitution of the dominion…were valid laws without the consent of the Governor General.” Having found the Constituent Assembly at fault, the Court ruled that not only was the act of dissolving the Constituent Assembly legal and constitutional but that the Governor-General could not form the new Constituent Assembly if only he renamed the Constitutional Convention to Constituent Assembly and restored its membership to the original formula. Once again, Justice A. R. Cornelius was the only one dissenting from the majority.
In doing so, the Federal Court of Pakistan resorted to what came to be known later as the Doctrine of Necessity. It is interesting to notice the flip-flip decisions that the Court gave in this entire series of legal fiascos, first letting the Constituent be dissolved, then acknowledging its continued sovereignty, and disallowing the Governor-General to make any laws, and then making a 180-degree turn over its earlier decisions by ruling that the Constituent Assembly was rightly dissolved and that the Governor General had the authority, under the Independence of India Act of 1947, to form a new Constituent Assembly. If what is clear and obvious is so thrilling and full of intrigue, one can only imagine what would have gone on behind the scenes in this era of intrigues and conspiracies to bring all of this about.
This had far-reaching effects on the country’s politics—effects that, in the shape of the Doctrine of Necessity, continue till this day. Hamid Khan writes about this as follows:
“The mischief caused by finding justification for an arbitrary, malicious, and capricious act of a Governor-General who was neither mentally nor physically fit, had to be undone with enormous judicial jugglery and pedantic and abstract legal reasoning. The Federal Court had to import an alien concept of civil or state necessity to get out of the legal mess it had created without fully realizing the potential mischief of the doctrine for the future constitutional cases of Pakistan” (Khan, 2001, p. 94)
While what Hamid Khan says about the immediate effects of the Justice Munir’s verdicts—and its future repercussion through further delay in getting a Constitution—is valid and very well-taken, what is more intriguing for a mind not trained in legal theory is how could all blame for future use of the Doctrine of Necessity can be put on Justice Munir alone. Wouldn’t doing so amount to taking a very restrictive view of the intelligence and integrity of all future Justices of the Supreme Court had to struggle with and apply the Doctrine of Necessity knowing fully well that it was indeed, a faulty concept imposed on the nation by the collusion of a judge and a bureaucrat to perpetuate the latter’s rule over democratic institutions?
Is legal theory so rigid and blind that anything that once becomes precedent must remain a precedent even though everyone knows that it is a wrong precedent? If so, should other countries also draw upon the Doctrine of Necessity as borrowed by Pakistan from abroad, but then further developed and perfected at home? Should we expect that some day Justices of the United Supreme Court would resort to the Doctrine of Necessity espoused by Justice Munir in validating the rule of a military or civilian dictator in America?
Indeed, the justices of Pakistan’s Supreme Court who have repeatedly resorted to the use of Doctrine of Necessity weren’t merely “pre-programmed computers” who must do what they are programmed to do because of some fantastic lacuna in the legal theory but are living, breathing, thinking, and feeling people—supposedly, people of great integrity and judgment—who hid behind the crooked logic of Doctrine of Necessity not because it was hard-wired or written in stone but because, like Justice Munir, it served their short-term interests well.
To be fair, Justice Munir must pay, through eternal disrepute in this country, for the terrible harm that he has done to Pakistan by derailing the political process—no matter how faulty and imperfect it may have been—but that does not nullify the grave harm that tens of other Justices of Pakistan’s Supreme Court have done over the years when they to, having failed to stand up to a tyrant, have taken refuge in the Doctrine of Necessity. In doing so, they violated the oath of their offices—for the Constitution they profess to uphold contains no such Doctrine—and must have proved themselves unworthy of the positions that they held.
Onwards towards the first Constitution…
Politics Khalas aur Administration Chaloo (“End of Politics and Beginning of Administration”)
While these legal developments were taking place, Mohammad Ali Bogra resigned from office and Chaudhri Mohammad Ali—the former Finance Minister—assumed the office of the Prime Minister. Chaudhri Mohammad Ali was a bureaucrat by profession. He was, by all means, an able bureaucrat. Before the creation of Pakistan, Chaudhri Mohammad was nominated to represent Pakistan on the important committees that were responsible for distributing British India’s assets between the two countries. In doing so, he served under the direct guidance of Quaid-e-Azam and Liaquat Ali Khan.
After the creation of Pakistan, Chaudhri Mohammad Ali was made in-charge of the important task of building the civil services of Pakistan. He was, in fact, the highest ranking service official in the entire country. In those days, as now, a civil service department was headed by Secretary but the entire civil services of Pakistan was headed by a Secretary General who was the head of Secretaries and the Secretary of the Establishment as well. It was during his able service as the Secretary General that he came to the notice of the Muslim League politicians and the political minded bureaucrats like Finance Minister Ghulam Mohammad and Defense Minister Iskander Mirza.
Majeed Lahori, the poet and political commentator wrote when Chaudhri Mohammad Ali took office that “henceforth politics Khalas aur administration chaloo” (i.e. politics is over and administration begins) for now Pakistan was being ruled by two bureaucrats–the Governor General Iskander Mirza an ex-army man who rose through the Indian Political Service and Prime Minister Chaudhri Mohammad Ali who was a career bureaucrat from Indian Audits and Accounts Service. (Sayeed, 1960, p. 425)
[Editor: As a side note, my maternal grandfather belonged to the Indian Audits and Accounts Service as well, and worked for both Chaudhri Mohammad Ali and Ghulam Mohammad in these early days. He retired in 1960s and probably never came close to the inner-most doors and corridors of power but I wonder what he would have thought and done if he had been given an opportunity to step into Chaudhri Mohammad Ali’s shoes!]
This struggle between bureaucracy and politicians is another one of those ever-green features of Pakistan’s political and constitutional history. Repeatedly, Pakistan’s “non-political” have shown utter disrespect, even contempt, for those fighting politicians who just can’t carry on with administering the state. Over time this disrespect has been transmitted, through the state media and curriculum, to the citizens in general who have been brainwashed to think that politics is messy and inefficient and that inefficiency is something that must be eradicated at all cost.
This is in sharp contrast to the notion that successful nations—especially those that are at peace with themselves—are successful not because they sacrifice consensus on the altar of efficiency but because they manage to take everybody along. Decisions in these countries are not forced onto the people or rushed through the parliaments because that’s the only efficient way to govern but debated, and debated, and debated at times for weeks and months, until they could agree upon a compromise that every major faction could go along with. These decisions may not be efficient—in some strange definition of the word—but they sure are effective in that they’re not reversed after every successive change of government and they have the blessings of all those who matter so that they’re effectively implemented.
With the benefit of the hindsight, it was probably 1955 when Pakistan’s much maligned “establishment” became strong enough to start calling the shots…
The First Constitution (Finally!)
Chaudhri Mohammad Ali’s biggest achievement was the first Constitution of Pakistan. The Federal Court’s decision on the Governor-General’s reference cleared the way for the formation of the second Constituent Assembly of Pakistan. The Constituent Assembly was to be elected in the same manner as the first Constituent Assembly had been elected. The Assembly was to be formed on the basis of parity between East and West Pakistan. Party positions in the Second Constituent Assembly were very different from the first with the biggest difference coming from Muslim League’s representation in the East Pakistan. In the latest provincial assembly in East Pakistan, Muslim League only held 10 out of the total of 309 seats thus only contributing 1 member to the Constituent Assembly from that Province.
With only 25 members out of the house of 80, Muslim League found itself in a very different position than before. The party position in the old and new Assembly was as follows:
———————————————————————–
Party Old Assembly New Assembly
———————————————————————–
Muslim League 59 25
United Front 16
Awami League 12
Noon Group 3
Pakistan Congress 4
Scheduled Caste Federation 3
United Progressive Party 2
Independent Muslim ? 1
Others ? 6
Indian National Congress 10? 0
———————————————————————–
Total: 69 80 (Mahmood, 2000, p. 48)
———————————————————————–
An interesting feature of this new assembly was that women were totally absent from it. The first Constituent Assembly of Pakistan had two women members. Similarly, a large number of senior politicians did not make it to the second Assembly. These include as many as seven members of Ghulam Mohammad’s Cabinet as well as people like Khawaja Nazimuddin, Sardar Nishtar, Qayyum Khan, and Maulana Akram Khan. This may not have necessarily represented the “verdict of people” for any particular wrong-doing of these leaders since the Assembly was not directly elected but was in a sense a “cleaning up” of the senior crop by the next generation of political leaders.
An immediate consequence of the split Assembly was that efforts to forge alliances and negotiations went underway. Ultimately the government was formed by Muslim in coalition with the United Front Party from East Bengal. The Assembly first met on 7 July 1955 and immediately passed the Validation of Laws Act of 1955 which legitimized the 38 Acts of the first Assembly. The Governor-General Iskander Mirza assented to these in October of that year. (Khan, 2001, p. 96).
Immediately after this urgent matter, the Constituent Assembly began its deliberations on putting together the First Constitution of Pakistan. The three leaders who played a critical role in this proceedings were Chaudhri Mohammad Ali, the leader of Assembly and Prime Minister; Huseyn Shaheed Suharwardy an opposition leader and a great parliamentarian from Bengal; and A K. Fazlul Haq the leader of the United Front Party. (Umar, 2001, p.96). Their task, however, was not easy.
The first task toward Constitution-making performed by the Assembly was the unification of the three Provinces in West Pakistan into a Single Unit. The Bill passed was hailed as an act of administrative rationalization although there were clear political undertones to this. The creation of One Unit had been one of the actions on Governor-General Ghulam Mohammad agenda for quite a while now and several attempts (e.g. through executive decree, through Emergency Powers etc.) had been made in the past to bring this about. The objective clearly was to create a political and demographic counterbalance to the province of East Bengal. It was also claimed though that this would “simplify the federal structure in the proposed new Constitution” and “remove provincial rivalry and jealousy in West Pakistan” (Khan, 2001, p. 97).
With the creation of One Unit, the provincial governments in Sindh, Punjab, and NWFP were dismissed—albeit not without some opposition from the provinces and provincial politicians. Sindh was especially vocal about its opposition to One Unit. The Pirzada Ministry that had preceded the Khoro Ministry in Sindh had alleged that they were dismissed for their opposition to the One Unit scheme. In Bhawalpur, the Amir dismissed the ministry and handed over power to a government appointed advisor. In Khairpur, the state Assembly unanimously adopted a resolution favoring the merger with West Pakistan. Similar resolutions were adopted by Punjab, NWFP, and Sindh Assemblies as well the Shahi Jirga of Balochistan. The Khan of Kalat signed an agreement to merge Baluchistan States into West Pakistan.
While the Second Constituent Assembly drew heavily from the work of the First, it had its own share of problems to deal with. With the much more heterogeneous membership in the Second Assembly from political parties all across the ideological spectrum, it was really hard to find consensus on important issues such as the role of religion, state-province, and province-province relations. One especially divisive issue was that of separate or joint electorates. The Hindu Congress and the United Progressive Party would not agree to the separate electorates while Nizam-i-Islam and Muslim would have nothing to do with joint electorates. The divisiveness was so sharp that until December 1955, no consensus on this issue was in sight. Pressure tactics were deployed by every group to get its demands incorporated in the Constitution document.
Finally, a draft Constitution covering 245 articles and thirteen parts was published on 8 January 1956 after 4-months of exhaustive committee work by the ruling party. The Objectives Resolution with minor modifications became its preamble. The Constitution was received with mixed reactions by various political parties. Only Awami League and some Hindu and Leftist parties outrightly condemned the document. The former had serious objections on the division of power between Center and Provinces and the latter primarily because of the Islamic character and separate electorates provision.
When the Constitution came up for discussion in the Assembly, more than 670 amendments were introduced, mostly by opposition parties. As many as 67 articles were deemed to be highly controversial during these deliberations dealing with a whole gamut of issues. A compromise is reported to have been reached on all issues except the separate electorates which was to be referred to the National and Provincial Assemblies after the promulgation of the Constitution. On 29th February 1956, the Constituent Assembly finally passed. It was adopted as on March 23, 1956. After 9-year long battle for a code of government had finally come to an end. Pakistan had finally said goodbye to the last vestige of British Rule—its dominion status—in both letter and spirit.
The first Constitution declared Pakistan as a Federal Republic to be called the “Islamic Republic of Pakistan”. The system of governance would be based upon the British Parliamentary System. The final structure of the state would be much simpler than the bicameral legislature envisioned earlier. Pakistan would have a single chamber of parliament equally represented with East and West Pakistan.
The Constitution provided for a strong Center providing “maximum autonomy to provinces…consistent with national integrity and solidarity”. To its credit, the Constitution did provide a longer Provincial List of subjects and residual powers were to be vested with the Provinces. The powers of the president were much more expanded than what was presented by the first Constituent Assembly (e.g. the Constituent gave the President a veto over any Constitutional Amendment passed by the National Assembly by effectively withholding his assent. The National Assembly had no recourse to override such a veto).
Hamid Khan, the noted Lawyer and Constitutionalist, in his The Constitutional and Political History of Pakistan, describes the First Constitution as follows:
“The Constitution which finally emerged was a poor product, judged by any criteria, based on compromises and expediency, rather than on sound principles”. (Khan, 2001, p. 98)
We can probably claim, with the benefit of 20/20 hindsight, that Hamid Khan might be justified in what he claims above, however, every constitution is, by design, the fruit of the labors of ordinary people and hence quite imperfect. The question, therefore, is not whether the Constitution was a perfect document or not—it never can be as it always must be a compromise between a group of people—but how it was deployed and utilized to establish a system of governance.
I am reminded here of the famous words uttered by Benjamin Franklin to encourage his fellow compatriots to sign the constitution in the final moments of the Constitutional Convention organized to write the American Constitution in 1787 that saved the day for the American Republic. Amidst calls for walk-outs and signs of dissatisfaction with the document, he said:
“I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does…Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die…Much of the strength and efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress and confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts and endeavors to the means of having it well administered. On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”
The secret of a successful constitution lies as much in its implementation as it is in its creation. It is to this aspect of the 1956 Constitution that we would turn on Friday (July 13, 2007) as we address the critical question: How did the Constitution of 1956 fare in giving Pakistan good governance?
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