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Commenting on the butchery, Winston Churchill, addressing the House of
Commons in December 1946, said, ‘indeed it is certain that more people have lost
their lives or been wounded in India by violence since the Nehru Government
was installed in office four months ago than the previous ninety years’.8 Even now this brutal lingering memory continues to rekindle resentment. Clearly,
the responsibility to prevent carnage rested with the administrative body led
by the Congress Party. What has now become evident is that they not only
hindered strategies to quell the violence, but also were directly involved.9
Frustrated at the penetrating bloodshed, the British government called an
emergency meeting, forcing the Muslim League and the Congress Party back
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to the bargaining table in hopes of convincing the latter to abide by the Cabinet
Mission Plan.10 The Cabinet Mission Plan was geared toward a division of power and saw provincial autonomy as one of its main goals. Although they had
agreed to it in June 1946, the Congress Party wanted to interpret it in ‘their
terms’. 11 This lack of cooperation, and the wave of violence inflicted on the largely defenceless Muslim population, convinced Britain to accept the two-nation
theory; that is that the existence of Pakistan was inevitable.
Birth of a nation: the interim constitution 1947–58
Pakistan came into existence on 14 August 1947 as a result of an Act of the
Parliament in the United Kingdom, which partitioned the British Raj into
India and Pakistan. The act stated that the erstwhile ‘India Act of 1935’ would
be the constitution of both countries until each developed a new constitution.
However, in Pakistan’s case, key mutations were implemented, including its
name. The new ‘Act of 1947’, as it began to be called, remained a ‘colonial
constitution’ in which the Governor-General had nearly absolute power,
including the ability to appoint or dismiss ministers and to assent to or withhold
assent from a bill.12 This inherent institutional authoritarianism consolidated the power of the Prime Minister and Governor-General into the office of
Muhammad Ali Jinnah. And it set a negative precedent that hindered effective
checks and balances on power. Not only that, such levels of absolute authority
are in stark contrast to the Qur’anic principles of accountability, consultation
and consensus. This resulted in the whole constitutional process being marred
by rewarding authoritarianism. Moreover, it developed into serious conflicting
ideological attitudes towards a separation of power. Certainly, the Constituent
Assembly that was formed to write Pakistan’s new constitution had to address
other concerns, such as ‘provincial autonomy, representation in the Federal
Legislature, language of the country’, but the role of religion was critical.13
Actually, nothing was more disagreeable than conflicting visions of the role of
religion in the constitution.
Exploring constitutional development
Simply perusing the myriad of texts dealing with Pakistan’s troubled con-
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stitutional development, one is struck by ideological tension associated with
the role of religion and the state. Khan mentions that troubles arose between
the uncompromising stances between those whom he identified as modernist
and those who were orthodox. 14 This book concurs that, indeed, the chronic ideological challenges Pakistan faces are crippling civil society, and, in particular, constitutional development. While the secularist/modernists preferred to
formulate a constitution without any specified role of religion in the state
apparatus, the traditionalists/orthodox proposed a historical Islamic state that
attempted to recreate the peculiarities of a bygone era. Clearly both imposed a
superstructure upon the demands of constitutional development that did
Constitutional development in Pakistan
115
not recognise the processes of permanence and change that require commitment
and reinvention, not rejection or imitation. Consequently, their ideological
superstructures did not fit the required paradigm. The revivalists, those with a
balanced approach between the modern requisites of a contemporary nation-state
and remaining committed to their enduring values, were few and were unable
to convince enough of the population. The sheer force, then, of the other two
extremes, which either did not respect their own people’s religious convictions
or believed they were religiously inadequate, marginalized them.
In March 1949, as representative of Pakistan’s commitment to the ‘revivalist’
legacy of its spiritual forefathers, the Objectives Resolution was passed, following 18 months of deliberations by the Constituent Assembly. Qasmi states that
‘the question therefore, during this period of Pakistan’s history, was not about
the admissibility of the role of Islam in Pakistan but the kind of Islam to be
established and the extent of its influence in the working of the state’. 15 The Objectives Resolution was intended to, therefore, be a beacon as to ‘what
kind of Islam’ the state aimed for. During this time, Liaquat Ali Khan was
the Prime Minister and Khwaja Nazimuddin became the Governor-General.
Both wholeheartedly supported the Objectives Resolution, declaring that it
mandated democracy, freedom, equality and social justice, as enunciated by
Islam. Actually, it goes so far as to articulate the idea that sovereignty belongs
to God, but that people’s chosen representatives reflect that. In pluralist terms,
it provided for the security of fundamental rights of all to ‘freely profess and
practise their religions and develop their cultures’. 16 Moreover, the Resolution provided for the independence of the judiciary.
With this directing document in place, a ‘Basic Principles Committee’ of
reputed Islamic scholars was formed to advise on matters arising out of the
Objectives Resolution. 17 This was critical since it recognized the necessity of establishing a link between theoretical values and their practical application.
Yet, tragedy struck with the assassination of Liaquat Ali Khan in 1951,
dealing a fatal blow to the revivalists. Now there were no serious contenders
capable of steering the country away from polarizations. As a proponent of
‘Islamic democracy’, Liaquat Ali Khan voiced moderation, and was thoroughly
trusted by the entire cabinet in Pakistan.18 His untimely death, some say a result of disgruntled traditionalists furious at his perceived liberalism, left the
political arena vacant, without a moderate voice. 19 Both the traditionalists Downloaded by [University of Connecticut] at 18:26 09 January 2017
and the secularists would never be able to see eye to eye, and were constantly
attempting to undermine each other.
In December 1952, under the prime ministership of Khwaja Nazimuddin, a
report by the Basic Principles Committee suggested a religious-based democracy
in which representation was split evenly between the two wings of Pakistan.
This report did not meet with much popular approval, especially by the pro-
vincial economic leaders of the Punjab – a major force
in both wings of the
country. Straight away, Pakistan faced a serious constitutional deadlock. It
began as a result of disapproval by a powerful economic minority in Pakistan’s
most populous province and soon degenerated into open ideological conflict.
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Yet other unfortunate events exacerbated the matter. Specifically, the province of
Punjab was facing severe food shortages as a result of ‘landlords who had turned
hostile due to the modest reforms made by the Daultana government in
favour of agricultural tenants’.20 This chaotic situation was further enflamed by a sudden and violent ‘anti-Ahmadiyya’ protest. Feldman states that it was
through the ‘ignorance and intolerance’ of the traditionalists that the unity of
Pakistan was being disrupted. 21 Leading the agitation were members of the shadowy ‘Ahrar’ movement, who had initially opposed the creation of Pakistan.
Overall, this chaotic situation involved traditionalists who were using political
instability to confront an affluent minority and force the government to bend
the constitution to their religious demands; a food crisis aggravated by an
exploitative feudal class in cohorts with a secular Punjab economic elite who
were resisting land reform, ‘not to mention an excuse to extract a more
acceptable constitutional deal for the Punjab’.22 Both traditionalists and secularists were responsible for the violence, and often do so by entirely delegitimizing the other. Moreover, what we see is that neither side was committed
to agreed-upon ethical or legal boundaries. Then, with violence spiralling out
of control, in February 1953, martial law was declared for the first time in
Pakistan’s history.
On 16 April 1953, Governor-General Ghulam Mohammed exercised his
rights under section 10 of the Act of 1947 and replaced Khwaja Nazimuddin
with Mohammed Ali as prime minister. The military was indirectly ruling the
country. A façade of civilian leadership remained in place, though, with
Ghulam Muhammad retaining the position of Governor-General. All the
while, the constitutional crisis was paralyzing the country even further, and
two important questions were raised: What were the powers of the Governor-
General with respect to dissolution and removal of the Constituent Assembly?
and Could the Constituent Assembly amend the constitution without the
assent of the Governor-General?
On 6 July 1954, the Constituent Assembly passed an act giving the judiciary
power to grant ‘prerogative writs’. 23 Soon thereafter, on 21 September, the Constituent Assembly passed another bill reducing the Governor-General’s
authority of dissolution. Of course, the Governor-General did not give his
assent to these two bills, on account of his absence. Upon returning to Pakistan,
the furious Governor-General challenged the decision and, hastily, dissolved
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the Constituent Assembly on 24 October 1954. ‘The Governor-General had
come to the conclusion that the constitutional machinery had broken down
and that the Constituent Assembly had lost the confidence of the people’. 24
Mahmud claims that this was a praetorian move25 and Khan contends that the Governor-General’s decision to dissolve the Constituent Assembly was
thoroughly undemocratic and that ‘his motivation was purely personal’. 26
Clearly, the Governor-General’s decision was illegitimate in that he, so off-
handedly, discarded the will of the Constituent Assembly, simply because they
curtailed his powers. In spite, he brought down the entire house. This type of
egotistical and short-sighted behaviour has been a constant source of tension
Constitutional development in Pakistan
117
in Pakistan. In the end, what remains is that political leaders cannot share
power, there is no agreed framework for politics and a narrative of false bravado
justifies authoritarianism.
The Governor-General’s unwillingness to accept curbs on his power set a
negative precedent. In any political system, checks and balances on the exercise
of power are crucial to prevent autocracy. His failure to accept the Assembly’s
will not only contradicted the ‘Objectives Resolution’ but also ridiculed ideals
in Islamic political thought. And, to make matters worse, after dissolving the
Assembly he whimsically appointed new executive members who immediately
started making claims about a new constitution. Then Moulvi Tamizuddin –
the then President (Speaker) of the Constituent Assembly – challenged the
Governor-General’s dissolution and brought the issue to the judiciary to
decide. This led to a series of constitutional cases that would haunt Pakistan
for decades afterwards.
The constitutional cases
The chaotic political atmosphere spawned a series of constitutional issues
challenging the emergency proclamation by the Governor-General. In particular,
there were three constitutional cases decided by the Supreme Court of Pakistan
that were crucial: (1) Federation of Pakistan et al. v. Moulvi Tamizuddin Khan;27
(2) Usif Patel and Two others v. The Crown;28 and (3) Special Reference made by the Governor-General of Pakistan. 29 These cases dealt with the powers of the Governor-General, including his right of assent and dissolution, and changed
the entire political direction of the country.
First, Moulvi Tamizuddin Khan, ‘a man of high repute and sincere
convictions … challenged the proclamation as unconstitutional … and asked for
a writ of mandamus to restrain the government from interfering with the
exercise of his functions as President of the Assembly and a writ for quo
warranto with a view to determining the validity of certain appointments to
the Governor-General’s Council of Ministers’. 30 Previously, the Chief Court of Sindh had granted writs of mandamus and quo warranto to Tamizuddin.
This was reversed at the Supreme Court level because the power of adjudication
was not in a lower court’s jurisdiction. The Supreme Court decided that since
the prerogative writs were not given assent by the Governor-General they
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were inconsequential. Here, Khan notes ‘the judgement of the Supreme Court
paved the way for future justifications by the judiciary to patently issue arbitrary, malicious, and capricious acts of the executive on hyper-technical grounds for
self-serving theories or concepts’.31 In this circumstance, the judiciary, rather than being a guarantor of the people’s will, imposed a superstructure that
undermined stability. Moreover, what was troubling was the character assassi-
nation of Maulvi Tamizuddin as ‘ultra-orthodox’ when it is clear he was
supporting legal-rationalism and respect for institutionalism. In other words,
this discrediting based on perceived religiosity, or lack thereof, is a common
theme in Pakistan’s politics.
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Consequently, the Supreme Court judgement in the Tamizuddin case
resulted in 46 Acts on the statute books becoming invalid. 32 The country was thrown into a legal void. In response, the Governor-General promulgated the
Emergency Powers Ordinance IX of 1955, which essentially g
ave him sweeping
powers to frame the constitution, invalidate laws passed by the Constituent
Assembly that had not received his assent, and authenticate the central
budget. This, too, was challenged, in the case Usif Patel v. The Crown, which
argued that powers to make constitutional provisions could not be exercised
by the Governor-General through an ordinance. ‘The court, therefore, held
Section 2 of the ordinance promulgated by the Governor-General – Ordinance
No. IX of 1955 – as ultra vires’. 33 In other words, the Governor-General was deemed to have exercised authority beyond his mandate and, therefore, his
quest for emergency powers was rejected. Yet this was not the end of the
dangerous legal scenario. The Governor-General immediately began a retaliatory
round of Supreme Court proceedings known as the ‘Special Reference made
by the Governor-General of Pakistan’.
Certainly, the Supreme Court agreed that the Governor-General’s emergency
powers were ultra vires. However, in further adjudication, the federal court
argued for the ‘doctrine of necessity’ as constitutional justification for his wide
powers.34 The doctrine of necessity deemed that, if circumstances warranted, the Governor-General had the authority to dismiss the Assembly. In effect, this
brought everything back to square one. It was this negative practice that allowed
the Governor-General to dissolve the Assembly and ignore the representatives
of the people.
These constitutional cases left a major impact on the political culture of the
country. The entire constitutional and administrative set-up was shaken to its
very foundations. By denying the Assembly the authority to curtail his powers,
and by dissolving the Assembly, the Governor-General initiated a sequence of
events that would lead to chronic political instability in Pakistan. His actions
were in direct contradiction to the ‘foundational’ values of accountability,
mutual consultation and appreciating the will of the people. Challenging his
authoritarianism, Moulvi Tamizuddin filed a constitutional case against his
sweeping powers and dissolution of parliament. However, the Supreme Court
overturned a decision in his favour. The two other constitutional cases that
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