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Sovereignty of Parliament and Framing the Constitution of 1973

Special write up with the relevance of April 10, Constitution Day of Pakistan

By Dr. Mahboob Hussain

April 10th is the day when forty four years back Constitution of Pakistan was approved by the first directly elected National Assembly which was also the 5th National Assembly of Pakistan. The way of the approval of the Constitution was a lasting achievement of that parliament, which was framed after 26 years of the creation of Pakistan. All the major political parties, groups and units of federation agreed on the constitution. The constitution got such support of people and political parties and became so significant that even after 44 years of its enforcement it has remained an agreed constitutional document. The formation of the Constitution may be called one of the most brilliant successes of the Parliament besides all disputes and controversies.

In many respects, the adoption of the new Constitution marks a turning point in the history of Pakistan. For the first time, a Constitution has been created by the elected representatives of the people, closely in touch with public opinion. It is claimed that the 1973 Constitution resolved all long standing issues in Pakistan especially those between the Provinces and the Centre but this proved chimerical. By comparison, the Constitution of 1973 had the distinction of having been framed by the elected representatives of the people. It was based on the consensus and provided for adult franchise as the basis of election, and set up a Federation consisting of all the Provinces.

National Assembly comprising of a single House, enjoyed sovereignty both legally and politically to much extent as it was able to take innovative action in the sphere of public policy and institution-building. The task of the framing of the Constitution, which the Parliamentarians completed within the Assembly or making compromise outside the Assembly, was not easy one. It was expected that after the separation of its Eastern Wing, “New” Pakistan should have no special difficulties or problems in framing a Constitution. However, unlike Bangladesh, Pakistan’s constitution-making in 1972-73 was a complicated task and marked by several acute clashes between the Government and the opposition parties both inside and outside the Assembly. The old and complicated issues faced by constitution makers in Pakistan were revived: the relationship between state and religion, i.e. controversy over details of an “Islamic Constitution”; distribution of powers between the Centre and the Provinces; the kind of Executive suitable for Pakistan – all those old issues generated lengthy and heated debates in the country even after its dismemberment, when the unity in the truncated Pakistan was vital for its survival. The controversy over an “Islamic State”-an issue which has a lengthy record behind it- took a dramatic turn when the “secular oriented” Bengalis were no longer present in the Assembly and Orthodox elements in the Western part of the country, though defeated in the general elections of 1970, gathered together to put up a brave fight to preserve cherished Islamic values and traditions.

            At the time of debate on constitution the opposition (about 40 votes) could not gather enough PPP rebels to them to present any real challenge to the Government in voting terms. However, they did not allow themselves to be steamrollered by the PPP majority. So that Opposition preferred to participate in the constitution-making process instead of remaining outside of it. This automatically increased the status of the Parliament and also made the task of the Parliament easy to be completed.

The Constitution Bill was finally introduced in the NA by the Law Minister on 2nd February 1973 where it was debated on 17th February. ‘By the time the NA, acting as a Constituent Assembly, began clause by clause examination of the new permanent constitution. The majority party, the Law Minister said, was wide open for compromise on all points except the measure of Provincial autonomy, and the division of power between the Federal and Provincial Governments. During the debate, the Government made a number of concessions to the Opposition’s views; for example, by dropping the clause providing that a motion of no confidence in the Government could only be passed by two thirds majority. Even so, the Bill seemed certain of a rough journey through the House; all the opposition parties, ranging from the profoundly radical National Awami Party to groups on the extreme right banded together in the United Democratic Front and put down some 1600 amendments, obviously with the determination of obstructing the Bill until it should be modified to meet its large majority, to have forced the Bill through the National Assembly by sheer might of voting power but this was not President Bhutto’s intention.

The Draft Constitution comprised of 278 Articles and had 6 Schedules. The Committee held 48 sittings, total 175 working hours, spreading over a period of 38 working days in all. The average attendance throughout the sittings was 18 out of 25 members. Prior to the introduction of the Draft Constitution as a Bill on 2nd February 1973, the opposition parties in the Assembly resolved that they would ‘resist all efforts to pass an un-Islamic, undemocratic, non-Parliamentary, and Non-Federal Constitution, and that if their legitimate amendments were not accepted, they would have no choice except to go to the nation’. However, when the National Assembly opened debate on the Constitutional Bill on 17th February, the ruling PPP seemed willing to seek the cooperation of the opposition Parliamentary groups ‘in rectifying whatever mistakes might have crept into the draft’.

There were certain problems in the functions of the Parliament. The debate of the Constitution continued in a desultory fashion since 17th February 1973. This first reading produced a crop of very lengthy, repetitive and often irrelevant speeches from both sides of the house, the PPP extolling, the opposition denigrating the draft Constitution, and little being done to prepare the way for some sort of constructive consensus or compromise. Notwithstanding the development on the Constitution making continued.

The Opposition’s cooperation for the strength of the Parliament cannot be ignored because they continued the support for the institution of Parliament in formation of the Constitution despite when the Parliament was busy in the formation of the Constitution the Government was doing some works without the consent of the Parliament but the Parliament could function smoothly. A Presidential Ordinance of 8th March 1973 amended the Interim Constitution so that Central and Provincial Ministers who were not, respectively, MNAs were able to retain their posts until 14th August 1973, instead of 21st April 1973 as was originally stated in Articles 63 and 104 of the Interim Constitution. This meant that Central Ministers J.A. Rahim and Sherpao had a further four months’ lease of life. Aziz Ahmad, Mahmud Ali and Akbar Khan were not MNA, but they were Ministers of State and thus not threatened by the original time-bar. These were extra-parliamentary functions.

The activities in the corridors of the Assembly House during the days of constitution-making as well as on the day of adoption of the Constitution marked that it was the Parliament, and not any other institution, that was in focus. Every member of the Assembly became significant when the opinion of the Opposition was included through the efforts of the ruling party and the leader of ruling party for end of the boycott of the Opposition. It was never in doubt that President Bhutto would be able to pass the Constitution with the support of the large majority which he commanded in the National Assembly. However, it was very uncertain that he would be able to gain the assent of the Opposition. They had contested nearly every clause of the Constitution in its passage through the Assembly.

 In a House of 144 members, the Constitution was approved by 125 votes out of 128 present and voting. On that occasion, the Law Minister moved a motion: “that this Assembly resolves that steps be taken to enable Members of the Constituent Assembly to sign the Constitution of the Islamic Republic of Pakistan for the purpose of its being deposited in the National Museum.”

Afterwards, the ceremony of the putting signatures on the historical document of the Constitution took place. In that ceremony 137 members signed the original document of the Constitution. Nine members of the Assembly who did not take part in the voting also signed the approval of the Constitution. This fact proved that there was less controversies in the adoption of the Constitution. However, eight members remained aloof from the document in respect of putting signatures. They were Ali Ahmad Talpur, Abdul Hameed Jatoi, Abdul Khaliq, Mahmood Ali Kasuri, Ahmad Raza Kasuri, Makhdoom Noor Muhammad, Nawab Khair Bux Mari and Abdul Hayee Baloch.

The ruling PPP was felt miraculously lucky to get unanimous authentication of the Constitution. It was the fifth to be drafted, the third to be adopted with no opposing vote and with the support of all but three of the members of the opposition group. The question why the Opposition cooperated with the Government in constitution-making while there was unfavorable treatment on behalf of the Government has been answered by explanations of different opposition leaders. Dr. Abdul Hayee Baloch has opined that the quality of the Constitution is owed to the participation of the Opposition. If the Opposition did not contribute positive and vibrant part in formulation of the Constitution it would remain a controversial document. The UDF issued a statement that bore the details of the Constitutional Amendments proposed by the Opposition. They also made those Amendments public which were not adopted by the Assembly. On that occasion the Opposition declared that they signed over the Constitution to save the country from civil war.

Adoption of the new Constitution became the occasion for nationwide celebration. April 12th and 13th were observed as public holidays; and Pakistani missions abroad remained closed on those days. Official workers throughout the country received two days paid holiday. In the course of the national rejoicing President Bhutto visited Lahore and Karachi laid a wreath on the mazar of Iqbal, and mazar of the Quaid-i-Azam.  The most impressive part of the Assembly’s performance made Bhutto to express pride and take credit as it would have been his personal achievement. Bhutto’s biographer Stanley Wolpert pens down this achievement as “Zulfi fondly hoped that his most impressive political achievement to date would long outlive his own tenure in high office, ten more years seeming to him at this time perhaps all that remained for his enjoyment.” Bhutto’s claim was not without substance. However, the endorsement of Bhutto’s claim does not lessen the place of the achievement of the Parliament. It on the other hand strengthens the view that Bhutto empowered the Assembly in order to form and adopt the Constitution and that support to the Parliament made it possible for Bhutto that he could take the credit of what the Assembly did.

            The 1973 Constitution was adopted with the compromises of all the political parties in the National Assembly. Undoubtedly, no constitutional document could be described as perfect. It was a product of compromises amongst various political parties and forces present within the constitution-making body.

            The Constitution that was passed by the Parliament received applause from all corners of the country. Almost all newspapers were full of praise over this brilliant venture of the elected representatives of Pakistan. All English and Urdu Newspapers on 11th April splashed stories about the adoption of the Constitution by the National Assembly, as a result of “dramatic last-minute consensus”. Highlights included welcome statements by the opposition leaders like Wali Khan of NAP and others who agreed to end their boycott of the Assembly after the ruling party had agreed to incorporate more of their amendments to the Constitutions.

Though pro-Opposition and independent Nawa-i-Waqt criticized some of the clauses of the Constitution yet it as well as other newspapers which praised the adoption of the Constitution did not deny the superiority of the Parliament that it gained with the adoption. The editor of Nawa-i-Waqt said some of the clauses of the Constitution smacked of despotism. It spoke of mass arrests of political opponents, and took strong exception to the week-long celebrations and two holidays “at a time when more work was the need of the hour”.

The treatment of Bhutto with the Opposition in the last stage of adoption of the Constitution was also admired by some of the newspapers. Jang and Taameer editorially congratulated the people of Pakistan on “auspicious occasion” and prayed for stability and prosperity. Both praised the consensus on the Constitution. Jang said that the Constitution must be regarded as a sacrosanct guide to the conduct of national affairs it praised Bhutto’s foresightedness, with particular reference to the way in which he had kept the door open for a rapprochement which the opposition. The treatment of the Government with Opposition and their common effort to take the credit for the venture mentioned the standard of the Parliament that was raised to the heights.

Another independent newspaper the Sun praised the Parliament in unequivocal terms. The heading of its leader “O Joy” itself expressed the satisfaction and pleasure that the paper experienced at the time of the adoption of the Constitution. The satisfaction over the performance of the Parliament was described in the word that “for us it’s a matter of no ordinary satisfaction that the elected representatives have honored their mandate . . .  no doubt there will be problems and transitory difficulties. But they who have succeeded in giving the country the Constitution can be counted upon to work it and also the improve it” . . . “As for Mr. Bhutto, it is a personal triumph” it added.

Nurul Ameen, the Vice President of the country who virtually belonged to East Pakistan, the part of the country that separated its other part just two years ago, admired the country in the context of the separatism. He pointed out that the adoption of the Constitution had made distinct the chances of the division of country in more parts. He stressed that if the Assembly would not be able to form the Constitution there were dangers for the separation of remaining units but the Assembly in fact lessened those dangers in advance.

As far as the sovereignty of the Assembly during the period discussed above is concerned it is easy to conclude that the Assembly proved a sovereign body at least during these fateful years of the life of Pakistan as well as that of the Assembly. The Assembly was a success in the real terms as it determined the fate of all of the institutions of the State of Pakistan in the Constitution that the Assembly had produced. It was Assembly that gave the constitutional recognition to all the institutions of the state including the Executive, the Army, the Judiciary and even the State itself derived its sovereignty from the sovereignty of the Assembly when the latter formed and adopted the Constitution. The Assembly, while determining the role of other institutions, also determined its own role as well as that of future legislatures of Pakistan.

The ‘sovereignty’ of the institution – where the institution functions without any interfering influence of external forces and factors – of the Parliament could be observed in the first two years of the Assembly’s performance as the Constituent Assembly of Pakistan. During these times the Assembly proved sovereign in all respects. External conditions and internal ‘complexity’ as well as ‘differentiation’ both helped the Parliament in practicing and enjoying the ‘sovereignty’.

 The writer is Associate Professor at Department of History, Punjab University, Lahore. He can be reached at: mahboob.history@pu.edu.pk

 

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