PAK301_Lecture17

0:12 This is lecture number 17 of Pakistan studies and the topic we are going to discuss in this lecture is the constitutional issues that Pakistan had to deal with in the early years. Constitution offers basic principles and framework for governance and for exercise of political power and legal authority. It determines the scope of power, relationship amongst different

0:59 institutions of state and also relationship between the state and the individual. Constitution outlines the procedures for management of power. And constitutional principles have preceded over ordinary law. For legislative purposes, ordinary law is made differently from a constitution or constitutional

1:45 law which is a difficult and cumbersome process. At the time of independence, the Government of India Act 1935 was adopted as Pakistan's first interim constitution in the light of the Indian independence act of 1947. Some changes were made into the Government of India Act or what was now described as the interim constitution of 1947

2:32 in order to deal with the situation of an independent and sovereign state. In addition to this, the constituent assembly of Pakistan was set up and we have talked about the constituent assembly of Pakistan in our previous lecture. In that lecture, we talked about the procedure through which the constituent assembly was set up. And this constituent assembly was assigned

3:19 the task of constitution making for Pakistan. In addition to this, this assembly was also making ordinary laws for Pakistan. While dealing with the formulation of constitution, the constituent assembly had to address various issues and problems. The first constituent assembly worked on constitution making

4:04 from 1947 to 1954 when it was dissolved. And in 1955 the second constitution assembly was established. That started the work where the first constituent assembly had left. In a period of one year that is from 55 onward, the second con constituent assembly framed the first constitution of Pakistan

4:52 which was implemented on 23rd March 1956. Here we are going to discuss the major issues that the constituent assembly of Pakistan faced while framing the constitution. These were the issues that the constituent assembly had to deal with and find out an acceptable

5:37 formula for solving these major issues. I may identify those uh major issues that the constituent assembly of Pakistan had to deal with. One federation or federalism. This was the first issue. Second issue was representation. how different units were to be provided representation in the federal legislature. The third issue

6:23 was separate or joint electorate or what kind of electorate was to be adopted in Pakistan. The fourth issue that the constituent assembly had to deal with was the issue of the national language. The fifth issue was parliamentary system or presidential system. Whether Pakistan should have parliamentary system of government or presidential system of government. The sixth issue pertained to the Islamic state.

7:12 What kind of Islamic state was to be created and how that had to be created. These were the six major issues that the constituent assembly of Pakistan had to deal with while working on the formulation of the constitution of Pakistan. Now we will take up each of these issues and see how the constituent assembly addressed the issue and what was the nature of the problem.

7:57 The first issue is the issue of federation or federalism. There was a consensus in Pakistan that Pakistan will adopt a federal system of government where constitution divides powers and authority between the central or federal government and the governments of the constituent units. In this case, the provinces,

8:47 the system of federalism was part of Muslim League's political heritage that we can trace back to the pre-independence period. when the Muslim League was striving for the protection and promotion of Muslim identity, rights and interests and then it was demanding a separate homeland for the Muslims during the period of British rule. Therefore, when Pakistan

9:35 becomes independent in August 1947, it was understood that Pakistan will have a federal system of government for framing a federal constitution. There were certain peculiar problems for Pakistan that had to be addressed. Pakistani territory was divided into two parts. East Pakistan or East Bengal on on the one side

10:23 and western part or West Pakistan on the other. These two territorial units were separated by almost 1,000 miles of Indian territory. a country that was not cooperative with Pakistan which accentuated the problem of distance that had to be addressed by the constitution makers. There was another problem. More than half of Pakistan's population

11:11 was living in the eastern part, East Bengal. However, the territory wise, East Bengal was smaller than West Pakistan or West Pakistan had more territory. Administratively, East Bengal was one administrative unit. West Pakistan or western Pakistan at that time that is at the time of making of the first constitution

11:56 was divided into different administrative units. There were provinces. There were three provinces. Balojasthan was not a full-fledged province. Then there were princely states. And in addition to princely states there were tribal areas. So there was a greater administrative diversity in the case of the western part of Pakistan whereas it was one administrative unit so far as east Bengal was concerned. So the problem was

12:41 how to accommodate this diversity in a federal system that could ensure effective participation to all these diversified and different units. Moreover, they were also dealing with a number of uh related um issues. And here the issue was that a federal system is meant for

13:29 accommodating diversity. Through federal system you bring diversity in an overall framework of unity and this became a kind of challenge. This challenge became more significant when we look at the heritage that is what Pakistan inherited

14:16 from the British period. The heritage that Pakistan inherited under the government of India Act 1935 was that of a strong center. But the political demand was that autonomy, reasonable autonomy had to be granted to the constituent units so that the diversity that I have very briefly outlined is brought into

15:03 the national framework. And in this way diversity becomes strength and it is built into the unity. Now these were the issues that the lawmakers had to deal with. The interim constitution which was introduced at the time of independence divided powers between the center and and provinces

15:48 into three categories. Central powers, provincial powers or the concurrent powers. Concurrent means that both center and provinces could legislate. But the law of the center or law of the federal legislature had preceded over provincial laws. The first constitution of Pakistan

16:33 that is the 1956 constitution followed the same principle. Powers were divided into three categories. One, the federal or central list, provincial lists and the concurrent lists. The 1956 constitution granted provincial autonomy, certain powers and certain rights to the provinces. However, the tradition of strong center continued in Pakistan. The second issue

17:20 that was addressed by the constituent assembly was the question of representation of the provinces at the federal level that is in the federal legislative assembly. Here again the problem was that there was more population in eastern part of Pakistan and more territory and more administrative units in western Pakistan. The standard practice

18:07 in the federal constitutions is that in the upper house you provide equal representation to different units of the federation and generally in the lower house representation. is given on the basis of population. If a province has more population, it will have more representation in the lower house. But in the upper house, all will have equal representation.

18:53 In Pakistan, the application of this formula was causing some problems because of the peculiar structural problem that is population and territory problem that I have outlined. Therefore, the different efforts that were made in Pakistan to deal with the question of representation suggested different methods. That is the reports that were prepared for constitution making try to offer different solutions to this

19:43 problem. and I may briefly mention those. The first report or what is often described as the basic principles committee report. This report which came in 19 50 followed the standard method that is equal representation in the upper house and in the lower house representation on the basis of population and powers were equally divided. Since objections were raised

20:30 because equal representation to each unit meant that the western part would have more representation because there were more units in West Pakistan. This proposal was reviewed and presented again to the constituent assembly as the second report in 1952. The second report talked of equal representation to two wings of Pakistan that is the

21:17 eastern wing and the western wing. Equal representation to two wings of of Pakistan and equal powers to both houses. There were again certain objections to that and this was reviewed reconsidered and another report was presented in 1953. This is often described as the Muhammad Ali formula. Muhammad Ali Bhogra was prime minister

22:03 at that time and since he presented the revised report it is often described as the Muhammad Ali formula. In this case it provided equal representation to five units in the upper house. Now five units meant one unit eastern Pakistan and four units in western Pakistan equal representation to each unit. So five will have equal representation in the lower house. Representation was provided on the basis

22:49 of population which meant that in the lower house eastern part or east Bengal or East Pakistan would have more representation than western part. However, when these two houses met together, both wings had equal representation. That is in a joint session when both houses meet and sit together, they had equal representation. While these things were being discussed, the first constituent assembly was dissolved.

23:35 Second constituent assembly was elected in 1955 and it again started the work of constitution making. The formula evolved for representation was that the province or the region western region western part was integrated into one single province in October 1955. That is called the one unit or one unit scheme. Under the one unit scheme introduced in 19 October 1955,

24:22 all the provinces of western part of Pakistan and other administrative units were integrated into one single province of West Pakistan. So then you had two provinces, province of East Pakistan, province of West Pakistan created by what is known as one unit scheme. Once this was done, both these provinces, province of East Pakistan, province of West Pakistan were given equal representation because there were two provinces. There was no problem

25:08 and the parliament was to have a single house one house parliament. This is what was provided in 1956 uh constitution to deal with the issue of representation. Now we move on to the third issue the issue of separate electorate or joint electorate. The issue was should Pakistani elections

25:54 be conducted on the basis of separate electorate or joint electorate. You would recall that the principle of separate electorate was introduced by the British government in 1909 on the demand of the Muslim leaders. These Muslim leaders had met the voice roy in 1906 and demanded that Muslim representatives

26:41 should be elected by Muslim voters only. from 199 until the establishment of Pakistan and even afterwards this principle remained operative separate electorate. Now when the constituent assembly of Pakistan was dealing with constitution the issue was should Pakistan continue with separate electorate or they should have now joint electorate.

27:29 The minorities in Pakistan that is the religious minorities were not in favor of separate electorate for them. Most of them were not demanding separate electorate. They wanted joint electorate. However, the Islamic elements and many other circles wanted separate electorate. They were arguing that it's part of the heritage of Pakistan. The Muslims had demanded

28:16 separate electorate in 1909. Why it should be done away with now? And this will maintain the Muslim character of the Islamic State. But the irony was that in 1909 on the demand of a major minority that is Muslims this system was introduced and then Muslims projected themselves as a nation. Now

29:02 after the establishment of Pakistan, no major minority group was asking for separate electorate whereas some sections of Muslims wanted to give them separate electorate. So it caused some debate and then after some debate initially the assembly opted for joint electorate for eastern part of Pakistan or East Bengal and separate electorate for western part of Pakistan. However, later on it was thought that it

29:49 is a funny situation that you have one system of election in one part, the other system of election in the other part. In 1957, the National Assembly of Pakistan decided to adopt the system of joint electorate. From that time onward until 1979, all Pakistani elections were held under the system of the joint electorate where Muslims and non-Muslims

30:34 voted together to elect their representatives on the basis of single voters list. In 1979, General Zahul Hak's military government introduced separate electorate. It replaced joint electorate with separate electorate. So the elections which were held later were held under the system of separate electorate. The military government of General PVE Masharov

31:21 in year 2002 reintroduced the system of joint electorate. So Pakistan was back to joint electorate and the general elections in October 2002 were held on the basis of joint electorate. Although seats were reserved for religious minorities. Let's move now to the next constitutional issue

32:06 that is the national language issue. In the pre-independence period, Udu language had emerged as the language of the Muslim elite. All Muslims whether they belong to this province or that province would use udu language although their own languages may be different. For example in Bengal Bengali but the elite would interact with each other in Udu or at times in English.

32:55 After the establishment of Pakistan, it was generally assumed that Udu would be the official language of Pakistan. In 1948, Gaazam Muhammad Alija while on a visit to East Bengal declared that Udu would be the national language of Pakistan, but provinces could use their languages if they wish.

33:41 But national language is going to be Udu. There was opposition to designation of Udu as national language in East Bengal or East Pakistan. This opposition became more pronounced after the demise of Kaazam Muhammad Ali Jina in September 1948 in East Bengal. The demand was that Bengali

34:26 should also be designated as a national language because Bengali constituted a majority in Pakistan. With the passage of time, this movement became strong in East Bengal. with more and more sections of population being involved in it. And there was an agitation for this in February 1952. And on 21st February 1952,

35:15 because of agitation, demonstration and an encounter with the police, couple of students were killed in this language demand or language demonstration. With the passage of time, the complaint was that the federal government is adopting a negative attitude towards Bengali language and culture. Now this problem

36:01 that is the language issue was settled in 1954 by the constituent assembly when Bengali and Uru were declared two national languages of Pakistan. From 54 onwards, Pakistan had two national languages. However, after the exit of East Pakistan from Pakistani Federation in 1971

36:50 and especially when the 1973 constitution was framed, Udu again became the only national language of Pakistan. But the constitution provided for the development of provincial languages. In this way, this issue was settled. So far as constitution of Pakistan was concerned, the next issue of constitutional relevance

37:38 is the question of parliamentary versus presidential system. In the immediate aftermath of independence, the general consensus was that Pakistan would have a parliamentary system of government. And in fact this is the system with which Pakistani leadership was familiar and this is the system that was adopted in Pakistan after independence. Therefore it was generally assumed that

38:24 this would become part of the constitution. There were few people here and there who were talking about a presidential system. They thought that this system would be better suited for Pakistan given the territorial, linguistic, regional diversity. But this was a very small minority. The general consensus was that Pakistan will have a parliamentary system of government and the 1956 constitution provided for a parliamentary system of government.

39:11 This debate whether Pakistan should have presidential system or parliamentary system was reactivated after the military takeover in Pakistan in October 1958. The military government and circles close to the military government were critical of the parliamentary system of government. Aayukhan who was the leader of the military government and president of the country

39:57 had strong reservations about parliamentary system of government. Therefore the military government introduced presidential system of government in 1962 constitution because it argued that this system presidential system is more close to the temperament of the people. So then Pakistan remained under presidential system until 1969 when another military took takeover that is

40:42 the second military takeover happened. The 1973 constitution went back to the parliamentary system of government. And today under the 1973 constitution, Pakistan has a parliamentary system of government. Although some people may be critical of the system but generally this system is considered acceptable. Another important issue that had to be addressed while framing the constitution

41:31 was the issue of the Islamic State. There was an agreement, a broad agreement amongst the constitution makers that Pakistani state and Pakistani political system will have close relationship with Islam. only some non-Muslim members of the constituent assembly objected to this proposal or there were a few

42:19 secularists who who talked about separation of state and religion but the general consensus was that there will be a relationship ship. The reason was that in the pre-independence period, the Muslim League defined the Muslim identity with reference to Islamic principles, values, heritage,

43:05 culture, civilization and the political history. On the basis of that Muslim League claimed that Muslims in this subcontinent are a distinct separate nation and as a nation they are entitled to a separate state. Therefore, after coming into existence of the separate state, they were bound to maintain a close relationship with Islam, with Islamic principles,

43:53 with Islamic values. This was reflected in the objectives resolution that we have discussed in our previous lecture. with the exception of some opposition from the Congress members in the constituent assembly and a few secularists. Others were in broad agreement

44:39 that Pakistan must base its political, constitutional and legal institutions on Islamic principles or these institutions should reflect those values. However, those who were talking that Pakistani institutions and processes must reflect Islamic principles and values were not talking of a religious state. Were not talking of a theocratic state. They were opposed to creating a theocratic state or a religious state.

45:26 They were for an Islamic state that was capable of addressing the challenges of modern time. They wanted to hold on to their roots but live in a modern or changed era. And they were convinced that Islam is capable of responding to the modern needs and challenges.

46:13 The issues the constituent assembly had to deal with were number one scope of legislation for an elected assembly in an Islamic state. Number two, who will decide about the Islamic character of laws? Should a board of olas be given power to do that or assembly or judiciary? Three, what would be the position of women, their right to vote and right to work.

46:59 Fourth issue was the rights of the religious minorities whether they are to be treated as equal citizens or they would be described in the classical context as Zimse. These were the issues that the constitution assembly of Pakistan had to deal with. And after a long and detailed discussion, the constituent assembly adopted a middle course that is they defined Pakistan as an Islamic state.

47:48 However, they were not in favor of creating an orthodox Islamic state. They combined the spirit of Islamic principles and values and modern notions of state and governance in the constitution that was framed. In a way, it was an attempt to balance the two. When we discuss different constitutions of Pakistan, we will talk about the Islamic provisions in those constitution. This concludes our discussion of the

48:36 constitutional issues that the constituent assembly had to deal with while framing the constitution. Haha. Until we meet for the next lecture. [Music]

49:27 Heat. Heat. [Music] Heat. Heat. [Music]