22:35:00
Process Of Constitution
Making In Pakistan
Constitution is a basic
document which sets out the framework for governance and exercise of power. It
defines the powers of the institutions and sets out the relationship that
exists between different state institutions. It also describes the powers
within which these institutions have to work and what would be the nature of
relationship of the individual with the state.
At the time of establishment of Pakistan an Interim
constitution was introduced in Pakistan which was a modified version of the
India Act 1935.The task of framing the future constitution was assigned to the
CA of Pakistan that came into existence on Aug 1947.We will discuss that what
were the stages and what were the steps that were taken for framing the
constitution of Pakistan.
The whole process of constitution making started with the
passing of the Objective Resolution. The Objective Resolution which was passed
in March 1949 outlined the basic principles and foundations of the
constitution. The principles that had to be kept in mind by the constituent
assembly of Pakistan while framing the constitution. In a way the
Objective Resolution not only identifying the objectives, the goals they wanted
to achieve it was also setting out the priorities that had to be pursued.
Once the Objective Resolution was passed by the Constituent
Assembly then the steps had to be taken for the formulation of the constitution
and the 1st step after the passing of the Objective Resolution
was to set up the BPC (a committee comprising the members of theca of
Pakistan).The strength of the BPC was fixed as 24.But the committee had to
co-opt more members if it needed but at least there were 24 members they were
Muslims and non-Muslim members and also women were the members of the BPC.Along
with BPC some sub committees were also set up primarily to assist the BPC.These
sub committees were assigned some specific tasks to deal with some specific
issue and I can give you examples that one such committee dealt with the issue
of federalism. What kind of federal model Pakistan was to adopt, this
sub committee was to look into the matter and then report back to BPC.There
were other sub committees for example a committee on judiciary to look into the
judicial set up that was to be established in Pakistan. Another sub
committee on fundamental rights the civil and political rights that were to be
given to the citizens ofPakistan and there was also a committee on the
minorities the non Muslims who were also the citizens of Pakistan.
So in this way there were a lot of sub committees I have
given you some examples but there were more sub committees than I have
mentioned. So the BPC and the different sub committees deliberated on different
aspects of constitution making and then they prepare a report that is called
the BPC First report.
First
Basic Principle Committee’s Report: 1950:
We are calling it 1st report because the BPC
prepared more than one report so that we are calling it 1st and
2nd report and so on so that we can identify the different
efforts made by the BPC.So the 1st report was presented to the constituent
assembly in 1950 and this report outlined certain broad and key principles, it
was not framing the constitution, it was identifying certain broad principles.
That was to serve as the basis and foundations of the constitution.
Let me mention certain recommendations which the BPC, s 1st report
of 1950 made so that you have an idea about the kind of system they wanted to
introduce in Pakistan.
1. First important recommendation by the BPC report was that
the Objective Resolution would be included in the constitution of Pakistan as
the directive principles of policy as guideline of policy making.
2. Another important recommendation was that the head of the
state that was to be named as the president was to be elected by the joint
session of the parliament for five years; it means that a person could hold the
presidential office for five years. The president was given some discretionary powers
and certain other categories of power were recommended to be assigned to the
president. Although the authority was to be exercised by the PM.
3. So for as the legislation was concerned the 1st report
had recommended that there will be two houses the upper house and the lower
house and the principle recommended here for the composition for the two houses
was that the upper house all provincial units have equal representation and in
the case of lower house recommendation was to be given on the basis of
population, it means that if a province have more population it will have more
representation and in that case East Pakistan had more population than West
Pakistan and it had more representation in the lower house. So for as powers
were concerned powers were equally divided between the two houses that meant
that both houses had same kind of powers
4. Cabinet and the PM were to be answerable to both houses
of the parliament.
5. In this way it tried to provide certain basic
principles, however this report was silent on the issue of National Language
what would be the National Language of Pakistan the report was silent and it
didn’t make any kind of recommendation.
Criticism:
When this report was presented to the Constituent Assembly
there was criticism in the house and outside the house one basic criticism was
on the issue of representation which was an important issue the constituent
assembly had to deal with and here we see that on the question of
representation there was a criticism that if you provide equal representation
to all the units of a federation then the Western part had more representation
because the western part had more units and there was only one unit in East
Bengal. So the feeling was that the Western part would have more
representation. Then there were couple of other issues that were raised in the
constituent assembly with reference to the 1st report. For
example the issue of equal powers to both houses the general principle is that
the lower house has more powers and the upper house has less powers that is the
standard principle in the parliamentary system of govt but here both houses had
equal powers so this was criticized and then the issue of national language
that it should said something about national language.
Now keeping in view this criticism it was decided that the
BPC will review the report in the light of points raise and criticism in the
constituent assembly. So the constituent assembly deliberated on this so that
the points raised in the constituent assembly and outside could be incorporated
and the report is made more acceptable to the representatives. So it reviewed
the recommendations and brought back the revised or the second report.
Second
BPC Report 1952:
The 2nd report or the revised report
generally followed the same principles but it tried to accommodate the
criticism made on the 1st report and I will give you just one
or two examples to illustrate my point that what kind of changes it made in the
1st report.
One issue was the question of representation how should
different provinces of Pakistan one province in the Eastern wing and more than
one province or the administrative units in the Western part should be provided
representation. So the 2nd report followed the principle of
equal representation to both wings of Pakistan.60 members from the
Eastern wing and 60 members from the Western wing or the Western part and then
these 60 seats allocated to the western part were further divided among the
different provinces of the western part. The same principles applied to the lower
house 200 seats were given to the Western part and 200 seats for the Eastern
part and then again the western seats were further divided among various
provinces also different administrative units in the western part of Pakistan.
More powers were to be given to the lower house the house
which represents the people that was given more responsibility.
It also emphasized that in Pakistan law making
would be n accordance with the principles of Islam. This was in a way a
reflection of the Objective Resolution where sovereignty over entire universe
had been assigned to Almighty Allah and it was to be exercised by the state of Pakistan through
the representatives of the people within the limits prescribed by Him and there
would be no law which violates the principles and teachings of Islam.
In order to facilitate that it was also decided that an
advisory board comprised of 5 religious scholars was constituted who would
advise on the matter of law making in accordance with the principles and
teachings of Islam.
2nd report was also silent on the issue of
national language. However it definitely accommodated some demands, the issue
of representation the fear that the East Pakistan would dominate West
Pakistan was care off.
Criticism:
However there was criticism that why equal representation.
In the case of the 1st report some were saying equality and
here some were saying why equality had been created. But the 2ndreport
accommodated the issues that were raised in the 1st report.
This report was declared against the principles of federation. The West
Pakistan favored equality only for upper house. While the report was being
discuss there was a political crises in Pakistan.PM Nazimuddine was removed
from his office due to this crises and the new PM Ch.Muhammed Ali became the
new PM.
Third
Report (Muhammad Ali Bogra Formula) 1953:
Ch.Muhammad Ali and his team deliberated on all the issues
and prepared a report which s called as 3rd report but
generally in Pakistani history it is called as The Muhammad Ali Formulabecause
MAB was the PM and under his leadership a new set of proposals was prepared
which he represented to the Constituent assembly and therefore it is generally
describe as the Muhammad Ali Formula for the constitution making.
This formula was presented in October 1953 revised the
original proposals in the lights of the comments and criticism and it adopted a
novel procedure for providing representation to different units of Pakistan.
It decided that in the case of upper house there will be equal representation
to all the units of Pakistan and for this purpose Pakistan was divided into
five units’ one unit was East Pakistan and four units were in West Pakistan and
each unit was given equal representation it means that in the upper house 10
members were from Eastern part and 40 members were to come from the four units
of West Pakistan.
In the lower house more representation was given to Eastern
part because that had more population than the western part. So according to
this formula 165 seats were given to East Pakistan and from the
western part the strength of the members was 135 and this was the application
of principle of representation on the basis of population. So in this case the
standard principle of federalism was followed that is in the upper house the
units of federation were given equal representation and in the lower house the
units are represented on the basis of population.
However there s a unique feature here although the standard
principle of federalism is followed but whenever the parliament met in a joint
session there was parity or equality between the two wings of Pakistan. Let me
explain this in the case of Eastern Pakistan it had 10 members in the upper
house and 165 in the lower house the total were 175.In the case of Western Part
there were 4 units each sending 10 members and total 40 members and in the in
the lower house West Pakistan was to send 135 members and total members from
West Pakistan were 175, So it is the principle pf parity or equality when the
parliament meet in a joint session.
There was another provision provided in this formula that
although decisions were to be made by the majority vote but this decision could
not be effective unless at least 30% of members from both zones vote in favour
of this, So 30% members from both wings are required to have majority for any
law making. In this way this proposal incorporated the principle of parity with
inter dependence. Parity in a sense that in case of joint session both wings
have equal representation.Inter dependence that 30% member from both wings are
included in the required majority for any law making. So in other words one
wing could not get it away what it wanted, it had to seek the support of the
other side, so parity and interdependence are built in the system through this proposal.
Criticism:
This proposal provided for equal powers to both houses and
they could also take up issues in joint session. This proposal was received
with greater welcome however there was some criticism. There were certain
points mentioned here by the members were, one issue was that it was providing
for unreasonably complex process. You divide Western part into four units and
Eastern part in one unit then the allocation of seats that is to be done parity
at the joint session level and then 30% clause, so some people were saying and
some newspapers were writing articles that this would become a complicated
process. But generally this proposal was accepted although there was criticism
over here and there in the parliament and outside the parliament.
Another issue that attracted some criticism was the issue of
equal powers to both houses and some people were saying that since the lower
house represents the people therefore lower house should have more powers but
in this proposal both houses were given equal powers. Another significant
measure during this period which facilitated the constitution making was the
settlement of the language issue. In 1954 he Constituent Assembly of Pakistan
decided that the Bengali and Urdu would be the national languages of Pakistan.
This decision facilitated the constitution making process.
The acceptance of two languages helped to defuse the
controversies that had emerged in constitution making. In this way this issue
amicably settled to the satisfaction of most political leaders and political
parties.
After this the Constituent Assembly devoted itself toward
the making of the constitution and the drafting of the constitution started
that is by the summer of 1954 all the basic principles had been agreed to by
the CA and drafting had started and in fact by October 1954 good part of the
constitution had been drafted by the committee or group of people
,constitutional experts, legal experts who were drafting the constitution, and
it was assumed that very shortly the draft constitution would be presented to
the constituent assembly that would deliberate on it discuss the draft and make
changes if required and ultimately the constitution would be approved and it
was expected that very soon Pakistan would have its own constitution.
However a sudden development in the same month October 1954
created a situation that delayed constitution making and that development was
on 24 October 1954 GG Ghulam Muhammad decided to dissolve the CA of Pakistan
exercising his powers as the GG.He argued that the CA of Pakistan had been
dealing with the constitution for a long time, that the CA came into existence
on Aug 1947 and this was Oct 1954 and his argument was that this CA was not
able to make the constitution and it had make the constitution making a
perpetual process therefore he could use his powers to dissolve the CA,that
mean that the whole effort to make the constitution came into a standstill.
Dissolution of the CA also meant that the govt of PM Muhammad Ali Bogra came to
an end but the GG asked him to set up a new govt which included some old
ministers and some new ministers and in this way constitution making was
delayed.
One result of this dissolution of the CA of Pakistan by the
GG was that this matter was taken to the superior judiciary foe adjudication;
the president of the CA at that time Maulvi Tameezuddin moved the case first to
Sind chief court and then to the federal court of Pakistan and this was known
as the Tameezuddin case. This legal and constitutional battle in the Sind chief
court and then in the federal court went on for several months and the federal
court through various judgments which it gave from time to time and also
through its advisory opinion which the federal court gave to the GG during the
same period the ultimate decision or the resolution was that the GG was able to
get a away with the dissolution of the CA of Pakistan but the federal court
directed that the new CA will have to be elected.
GG could not nominate anybody but it had to be elected
therefore by keeping in view the judgment of the federal court and the advisory
opinion of the federal court the govt of Pakistan decided to hold new elections
for the 2nd CA.These elections were indirect that were held in
June and July 1955 and the 2nd CA started its session in July
1955.In the case of 2nd CA two things were different from the 1st CA.In
the 1st CA the ML was the majority party while in the 2nd CA
no political party had an absolute majority and in the case of 2nd CA
the membership was 80 out of which 40 from East and 40 from West Pakistan so in
a way it was a principle of equality and parity.
The 2nd CA took up on its task of framing
the constitution of Pakistan and in order to deal with this issue the 2nd CA
did not start from the beginning, it could make use of all the work done by the
earlier CA.It was in a way building on what the 1st CA had
done. The important step taken by the 2nd CA was the
integration of the province of West Pakistan and it is also
known as the One Unit Scheme for Western Pakistan. In the case of West
Pakistan there were 3 provinces, Balouchistan was not a full province but a
different administrative unit, other than these 4 major units there were
princely states, what was done in 1955 that all these administrative units in
the West Pakistan were integrated into the province of West
Pakistan.
Smaller administrative units were abolished all the
provinces and units in West Pakistan lost their separate identity and were
integrated into West Pakistan. So this is or what is called as the One Unit
Scheme for West Pakistan and because of this there were only two provinces in
Pakistan East Pakistan and the West Pakistan and in this way the issue of
representation was resolved, although in the smaller provinces and units of
West Pakistan there was criticism of setting up of this integrated province of
West Pakistan.
Nevertheless, this integration in the constitution making
process in Pakistan and after that the CA began to deal with the constitution,
it discuss the constitution and the draft of the constitution was released for
the CA and for the public at large on 8th January 1956 that is
the draft text of the constitution. This text was discussed in the CA, outside
the CA and then the CA approved the constitution on 29th Feb
1956.The next stage in the making of the constitution was the approval of the
constitution by the GG of Pakistan, that is his signatures were required and at
that time Sikander Mirza was the GG of Pakistan and on March 2nd ha
signed the constitution that has been approved by the CA and in this way it
became the constitution of Pakistan. This constitution was enforced on 23rd March
1956 and it replaced the Interim Constitution of Pakistan that was introduced
in Pakistan in Aug 1947.In this way the long run effort to make the constitution
of Pakistan was successful in giving this country a constitution of its own
which became operative on 23rd March 1956.
1. Introduction:
The constitution of 1956 was generally based on Government of India act 1935 and constitution of 1962 introduced presidential from of the govt.
2. Points of differences between the constitution of 1956 and 1962:
Points of difference between the constitution of 1956 and 1962 are as under:
(i) Form of Government:
Constitution of 1962 introduced presidential form of Govt.
Constitution of 1956 introduced parliamentary form of Govt.
(ii) Referendum:
Constitution of 1962 introduced an institution known as referendum in the country.
Constitution of 1956 introduced no institution.
(iii) Method of Election:
Constitution of 1962 introduced indirect election.
Constitution of 1956 introduced direct election.
(iv) Islamic Institutions:
Constitution of 1962 introduced two Islamic institution i. e advisory council of Islamic ideology and Islamic research institutions.
There was no such institute in the constitution of 1956.
(v) Supreme judicial council:
Constitutions of 1962 introduced a new institution supreme judicial council.
There was no such institution in the constitution of 1956.
(vi) Executive Powers:
Most of the executive powers vested in the president under the 1962 constitution.
Most of the executive powers were exercised by the prime minister under the constitution of 1962.
(vii) List of Subjects:
Constitution of 1962 provided only two list of subjects i. e central and provincial.
Constitution of 1956 contains three lists of subject i. e federal, provincial and concurrent matter.
(viii) Presidential Powers:
Under the constitution of 19622 president had great power.
In the constitution of 1956 the powers were reasonable.
3. Conclusion:
To conclude I can say that both of the constitution were different in nature. the constitution of 1956 introducedparliamentary from of Govt. while constitution of 1962 introduced presidential form of Govt. However there were some similarities between these constitutions too.
The constitution of 1956 was generally based on Government of India act 1935 and constitution of 1962 introduced presidential from of the govt.
2. Points of differences between the constitution of 1956 and 1962:
Points of difference between the constitution of 1956 and 1962 are as under:
(i) Form of Government:
Constitution of 1962 introduced presidential form of Govt.
Constitution of 1956 introduced parliamentary form of Govt.
(ii) Referendum:
Constitution of 1962 introduced an institution known as referendum in the country.
Constitution of 1956 introduced no institution.
(iii) Method of Election:
Constitution of 1962 introduced indirect election.
Constitution of 1956 introduced direct election.
(iv) Islamic Institutions:
Constitution of 1962 introduced two Islamic institution i. e advisory council of Islamic ideology and Islamic research institutions.
There was no such institute in the constitution of 1956.
(v) Supreme judicial council:
Constitutions of 1962 introduced a new institution supreme judicial council.
There was no such institution in the constitution of 1956.
(vi) Executive Powers:
Most of the executive powers vested in the president under the 1962 constitution.
Most of the executive powers were exercised by the prime minister under the constitution of 1962.
(vii) List of Subjects:
Constitution of 1962 provided only two list of subjects i. e central and provincial.
Constitution of 1956 contains three lists of subject i. e federal, provincial and concurrent matter.
(viii) Presidential Powers:
Under the constitution of 19622 president had great power.
In the constitution of 1956 the powers were reasonable.
3. Conclusion:
To conclude I can say that both of the constitution were different in nature. the constitution of 1956 introducedparliamentary from of Govt. while constitution of 1962 introduced presidential form of Govt. However there were some similarities between these constitutions too.
No comments
Post a Comment