followed, first rejected the Governor-General’s request for emergency power
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and then, surreptitiously, allowed it. In the wake of these constitutional cases,
the appointees of the Governor-General were considered ultra vires and there
now needed to be a new Constituent Assembly.
The constitution of 1956
Following the federal court decision, a new Constituent Assembly was elected.
Immediately, members began preparing a constitution and within eight
months a first draft had been completed. Though Pakistan’s political system
would remain parliamentary, a president and a vice-president were included,
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119
each with expanded powers. The prime minister remained the head of the
executive, but real power was entrusted to the president. ‘The draft provided
for a strong centre; its framers were guided by the principle that maximum
autonomy should be granted to the provinces’.35 Consequently, the division of powers had more enumerated areas in the provincial list, with areas such as
Industries and Railways. Also, the provinces were given a residuary power,
something that had never been given to them in the past. 36 The Objectives Resolution, described in the introduction to this chapter, was included as a
preamble. As Khan states, ‘after nine years of effort, Pakistan succeeded in
framing a constitution which became effective on 23rd of March 1956,
proclaiming Pakistan as an Islamic Republic’. 37
The 1956 Constitution declared Pakistan an ‘Islamic Republic’ wherein the
principles of freedom, equality, tolerance and social justice, as enunciated by
Islam, should be fully observed. Further Islamic provisions were contained in the
‘Directive Principles of State Policy’ but, interestingly, were not enforceable in
the courts. They, only, were supposed to serve as a guide to state authorities
for policy formation. According to the ‘Directive Principles’, steps needed to
be taken to enable Muslims of Pakistan to order their lives in accordance with
the Holy Qur’an and Sunnah. Further, ‘the state was to endeavour to provide
facilities whereby Muslims might be able to understand the meaning of life
according to the Qur’an and Sunnah, to promote amity and observance of
Islamic moral standards and to secure the proper organization of zakat and
waqf ’. 38 Yet no specific mechanism was institutionalized that would honour this commitment.
Most importantly, the 1956 Constitution deemed that ‘no law could be
repugnant to the Qur’an or Prophetic sayings’ and that existing laws ‘shall be
brought into conformity with such injunctions’.39 Also, the National Assembly could only decide whether a law was repugnant to Islam. ‘Article 198 provided
that the president should appoint, within one year of the day of commencement
of the constitution, a commission to make recommendations for bringing
existing laws into conformity with the injunctions of Islam and to specify the
stages by which the measures should be brought into effect’. 40 They were also to compile, for the parliament, such Islamic injunctions as could be given
legislative effect. It was made clear, too, that nothing become prejudicial to
non-Muslims. It is crucial to recognize that the Islamic provisions were a
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direct attempt to frame the constitution with ‘foundational’ values in mind.
Tensions arose as to what exactly constituted those values and how to institu-
tionalize them. Traditionalists and secularists were at odds concerning precise
definitions and meanings. Eventually, the chronic bickering over definitions
led to constitutional collapse.
Collapse of the 1956 Constitution
Pakistan began as parliamentary democracy; however, it was ill suited for that
form of political organization. After the passing of the 1956 Constitution,
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‘within a short period of about two-and-a-half years (March, 1956 to October,
1958) there were six changes of government, one of which lasted just for four
hours and another four days’.41 Mahmud characterizes this as manipulative attempts by the president to subvert provincial autonomy, connecting it to a
praetorian manoeuvre. 42 However, Mahmud’s analysis does not entirely reflect the immense disharmony that provoked presidential dismissals. Notwithstanding its illegality, dismissal was a result of the combative politics by over
a dozen political parties. Actually, the situation was so bad that members of the
Assembly violently attacked the deputy speaker of the House, who eventually
died from his injuries.43 When Mahmud claims that a representative government was just around the corner, it doesn’t effectively portray the seriousness of the
internal and political disorder. ‘The repercussions of this political instability
were serious. The country’s economy was shattered. In East Pakistan the army
had to be called twice to handle distribution of food and check smuggling
across the border (with India). Millions of refugees, who had been living in
sub-human conditions since 1947, remained neglected’.44
During this disarray, ideological tensions were only further aggravating. And
no-one quite understood how to manage these multiple crises. When Ghulam
Muhammad became ill and unable to continue as Governor-General, Major-
General Iskander Mirza assumed the Office of President in the interim period.
He was a self-described secularist and the importance of connecting the present
to an ethical current animating his society was unimportant. ‘He publicly voiced
his conviction that religion and politics ought to be kept quite separate’, which
displayed a remarkable ignorance of his own society and the ideological fore-
fathers of the Pakistan movement.45 The prime minister, at that time, was Chaudhri Muhammad Ali and he selected Dr Khan Sahib as the Chief Minister
of West Pakistan. Interestingly, Dr Khan Sahib, a close friend of Chaudhri
Muhammad Ali, originally vehemently ‘opposed the creation of Pakistan and
was a strong congressman’.46 It is striking to note that the very forces that were against the creation of ‘Pakistan as a model Islamic state’ were invested with
the powers to steer the country toward that direction. Such brazen disregard for
the sentimentality of people and cronyism was bound to conjure deep resentment.
In addition, there was the ever-presence of ideological coercion. Khan
mentions that ‘President Iskander Mirza had reconciled himself to having
Suhrawardy as prime minister … (but) on three conditions: one, that he would
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not alter Pakistan’s pro-Western foreign policy; two, that he would not meddle
with the army; and three, that he would keep the left-wing Awami League, led
by Maulana Bhashani, firmly in harness’.47 It was apparent that secularists, led by President Iskander Mirza, were enforcing their ideological vision on the
rest of society, and, here, on Prime Minister Suhrawardy. Reacting, the tradi-
tionalists were becoming increasingly hostile and aggressive in return. This
presents a classic example of ideology leading to political
engineering, which,
in turn, leads to political instability.
Further troubling, the new Provincial Assembly in East Pakistan was
demanding independence. Collectively, these issues forced the president to
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121
abrogate the constitution and call in the army to restore order. On 8 October
1958, President Mirza, along with General Ayub Khan, declared martial
law.48 This use of the President’s power and the abrogation of the constitution resulted in yet another constitutional case.
The Dosso case49
The Dosso case expanded on the controversial ‘doctrine of necessity’ to
include the legality of the usurpation of state power. Basing its theory on
Hans Kelsen’s theory of ‘revolutionary legality’, the court concluded that any
regime that has the people’s approval can gain legitimacy and is therefore a
valid government. ‘If the revolution is victorious in the sense that the persons
assuming power under the change can successfully require the inhabitants of
the country to conform to the new regime, then the revolution itself becomes a
law-creating fact because thereafter its own legality is judged not by reference to
the annulled constitution but by reference to its own success’.50 Consequently, power became a legitimating factor in Pakistani politics, allowing for its
usurpation. Naturally, in such a predicament, only those with physical/military
strength are able to do so, thereby setting a precedent of ‘might is right’.
Actually, it is this exact clause that has always been used to justify military
rule in the country.51
This judicial verdict had only one dissenting opinion – Justice Cornelius.
The majority, led by Chief Justice Munir, ‘held that a victorious revolution
or a successful coup d’état is an internationally recognized legal method of
changing a constitution’.52 The dissent based his decision on the strict rule of the law, that any abrogation would constitute an illegal act. This constitutional
case has been severely criticised by Mahmud53 and Newberg.54 While the former reiterated his theme of praetorian domination, the latter depicted a
decision that was politically biased. Ultimately, this developed into a com-
plete disregard for constitutionalism and prevented the establishment of an
agreed-upon framework for politics.
The third constitution: General Ayub Khan
In 1958 General Ayub Khan became the martial law administrator and, soon
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after, deposed President Iskander Mirza, initiating Pakistan’s first direct form
of military rule. Chaudhury insists that the army was reluctant to enter the
power game and did so under compulsion.55 However, there is clear evidence that as early as 1952 the military was becoming increasingly independent and
was establishing its own linkages with foreign countries, particularly the US. 56
This provides hard evidence of the military’s role in intervening in the political
process and foreshadows the ongoing civil–military competition for political
control. Nonetheless, recognizing that the constant instability was untenable,
General Ayub Khan appointed a ‘Constitution Commission to determine
what was failing within the country to bring about such disturbances and
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ineffectiveness’.57 To aid their task, the Commission sent out thousands of questionnaires, in Urdu and Bengali, asking for people’s opinions. From the
information gathered, they concluded that instability was rooted in three distinct
issues:
First, the role of Islam was ill-defined and torn between the orthodox
[traditionalists] and modernists [secularists]; second, increasing calls for
independence, centred on economic difficulties and disparities, were
compounding the issue of East Pakistan’s autonomy; third, unless there
were social, economic, and educational reforms, the possibility of having
an effective universal franchise was impossible.58
Interestingly, the most serious issue remained the role of Islam and combative
competition between traditionalists and secularists. Then, in total disregard of
the commission’s findings, the new constitution was thoroughly secularized.
The constitution of 1962
The 1962 Constitution contained 250 Articles, divided into 12 parts and 3
schedules. Paralleling the 1956 Constitution, the Objectives Resolution remained
as a preamble with minor semantic alterations. For instance, the first paragraph
of the 1956 preamble – ‘authority to be exercised by the people of Pakistan
within the limits prescribed by Him (Allah) is a sacred trust’ – became ‘within the
limits prescribed by God’ in the 1962 Constitution; there was no reference
to the fact that people would exercise authority.59 Presumably this was intended to avoid difficulties in determining the extent of those limits by competing
ideological political actors. However, what may have been intended to
decrease ideological bickering was in fact exacerbating. The 1962 Constitution
renamed Pakistan the ‘Republic of Pakistan’, dropping the word ‘Islamic’. 60
This clearly displayed Ayub Khan’s secularist mindset and is indicative of the
confusion rampant throughout the political leadership, since even something
so elementary could not be agreed upon.
Yet that was not all. In a bid to compensate for that omission, the 1962
Constitution contained significant Islamic provisions. It reaffirmed that the
nation-state of Pakistan was based on an Islamic ideology and placed emphasis
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on the principles of democracy, freedom, equality, tolerance and social justice,
with the qualification that these principles should be observed as enunciated by
Islam. Moreover, it reintroduced the 1956 constitutional passage that stated:
‘Muslims of Pakistan should be enabled individually and collectively to order
their lives in accordance with the fundamental principles and basic concepts
of Islam and should be provided with facilities whereby they may be able to
understand the meaning of life according to those principles and concepts’.61
In addition, the 1962 Constitution formulated the Council of Islamic Ideology
that would offer policy options considering Muhammad Iqbal’s concerns – a
revivalist approach. Likewise, ‘The Council of Islamic Ideology under the
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new constitution represents the first instance in modern history where an
effort was made to bring Islam in contact with modern political, legal, ethical,
social, and economic conditions and to present new and unanticipated problems
for solution to a jurisprudence which has for almost one thousand years been in
a static condition’.62 Yet, notwithstanding lip service paid to Islam, it remained without teeth or institutional guarantees. Essentially, the 1962 Constitution
aims to say everything without any concrete method to do anything. And it
was this confusion that was debilitating.
The 1962 Constitution prescribed a strong executive power concentrated in
the position of a president. The president was to be directly ele
cted to his
position by an established electoral college of not less than 80,000 people. 63
This system involved indirect franchise, which was implemented to facilitate a
smoother functioning of the political system. The electoral colleges were
responsible for government within their regions. Ayub Khan was against a
universal direct franchise owing to the ‘genius of the people’.64 This system, called ‘Basic Democracy’, was an indirect election of the president based on
restricted franchise. With this, Ayub Khan had hoped that partisan politics
would be reduced.65 However, this system rested on the belief that people are incapable of deciding what is best for them. By restricting the electoral franchise, he directly contradicted the ‘foundational’ value of the people not collectively
erring and, simply put, alienated most of his countrymen. Yet this should not
be surprising, since most politicians come from the landowning and feudal
classes of society that, rather than being harbingers of peace, justice and
equality, perpetuate exploitation on a massive scale.66 The entire concept of the inherent equality of people is beyond their grasp.
The 1962 Constitution, by abolishing the positions of the prime minister
and vice-president, gave definitive authority to the president, with renewed
powers of dissolution and veto. It was clear that the authors of this constitution
took threats to the territorial integrity of Pakistan very seriously. So seriously,
in fact, that their solution was to entirely consolidate power, stifling dissent. Of course, more funds were assigned to East Pakistan and the country became
officially bilingual. Moreover, the Assembly would sit in Dacca, in East
Pakistan, as opposed to Karachi, in West Pakistan. The question remained,
however: was this enough? Achieving unity by disallowing dissent, by ideological
imposition, and, instead, throwing some money at the situation, hoping to
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resolve deep-seated, structural imbalances, was hardly stabilizing.
Ayub Khan’s resignation
During the 11 years of Ayub Khan’s rule the country prospered economically.
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