More than eight years after its creation, Pakistan ultimately had its own constitution—the Constitution of 1956. The Constituent Assembly of Pakistan started work on the constitution from 1947 and it almost drafted its draft by September 1954 when it was dissolved by the then Governor-General Malik Ghulam Muhammad arguing that it had lost people’s confidence. Following the legal battle which ultimately ended in the governor general’s favor, a new (the Second) Constituent Assembly was constituted on 28 May May 1955 under Governor-General’s Order No. 12 of 1955. Elections to the Second Constituent Assembly were held on 21 June 1955. This Assembly then drafted Pakistan’s first constitution.
After the Second Constituent Assembly was elected, the sitting Prime Minister Muhammad Ali Bogra lost the support of the majority in the Assembly. Additionally, he also lost trust of the establishment, especially Governor-General Malik Ghulam Muhamamd and Acting Governor general Iskandar Mirza. Thus, he was replaced by Chaudhary Muhammad Ali in August 1955.
As the prime minister, Chaudhary Muhammad Ali vigorously pursued unification of the western wing and constitution-making. The first task was done in October 1955 after which Chaudhary Muhammad Ali’s attention completely shifted to the second one. He had set 5 January as the date for presenting the constitution draft in the Assembly.
Unlike the previous Assembly which would discuss constitutional proposals as a whole house without a government–opposition division, Chaudhary Muhammad Ali’s strategy was to pilot constitutional proposals through the Assembly. He first prepared the complete draft of the constitution and presented it to the coalition. In November and December, the coalition considered the bill clause-by-clause. A sub-committee was formed to resolve issues that caused deadlock. The constitutional draft was tabled in the Assembly on 9 January 1956 by Law Minister I. I. Chundrigar.
It was passed by the Assembly on 29 February 1956. Several of its articles were amended during the second reading. The governor general gave his assent to the bill on 2 March 1956 and finally the constitution came into force on 23 March[1] 1956.
The opposition staged a walkout during the third and final reading of the bill on the grounds that its demands for amendments to certain provisions were suppressed by the majority. They also boycotted the official ceremonies. The major demands of the opposition parties were the removal of the word “Islamic” from the official name of the country[2], the requirement that the president of the republic must be a Muslim, more autonomy for provinces, and a joint electorate.
Awami League, Ganatantri Dal and Pakistan National Congress were the major parties who expressed their reservations on these provisions. During the debates, Maulana Abdul Hamid Bashani of Awami League even threatened that East Pakistan would consider secession in case their demands for a joint electorate and the 21-points program were not met.
Salient Features of the Constitution
Written and Codified Document
The 1956 Constitution was a written and codified document. It contained 234 articles, 13 parts and 6 schedules.
Islamic Provisions
This constitution contained several Islamic provisions. They included:
The Objectives Resolution was included in the constitution as its preamble[3].
Pakistan was officially declared the Islamic Republic of Pakistan.
The president of the republic was required to be a Muslim of at least 40 years of age.
It was pledged that no law shall be enacted which was repugnant to the injunctions of Islam and the existing laws would be molded to bring them in accordance with Islam. (article 198).
The constitution also provided for the establishment of an organization for Islamic research and instruction in advanced studies to assist in the reconstruction of Muslim society on Islamic lines.
In the Directive Principles of State Policy,[4] provided that:
· The State shall endeavour to strengthen bonds with Muslim countries (article 24),
· The state shall take steps to enable Muslims to order their collective and individual lives according to Quran and Sunnah, to make the teaching of the Holy Quran compulsory, to promote unity and observance of Islamic moral standards, and to secure the proper organization of Zakat, Waqf and mosques (article 25), and
· The state shall prevent prostitution, gambling, and consumption of alcohol and other drugs (article 28).
Federal system
The 1956 Constitution provided for a federal form of government[5]. There were three lists of subjects; the Federal List, the Concurrent List, and the Provincial List. The
Parliament had exclusive power to legislate on matters in the Federal List Provincial legislatures had exclusive power to legislate on matters in the Provincial List, subject to constitutional exceptions. The center and provinces could both legislate on subjects in the Concurrent List but in the event of a conflict the federal laws had to prevail.
Foreign affairs, Defense, Citizenship and Naturalization, Currency, Census, Elections to the National Assembly, provincial assemblies, and the office of the president were in the Federal List. Civil and criminal laws, price control, anti-corruption measures, trade unions, and disputes between industries and labor were in the Concurrent List. The Provincial List contained subjects like police, public order, administration of justice, prisons, land revenue, education, agriculture, public health, local government, and forests. There were 30 subjects on the Federal List, 19 on the Concurrent List, and 94 on the Provincial List.
In case of any dispute between the central government and one or both provincial governments or between the two provincial governments, the Supreme Court had original jurisdiction to adjudicate. However, the Supreme Court had power only to pronounce Declaratory Judgements.[6] Disputes that did not fall in the jurisdiction of the SC were to be referred to the Chief Justice of Pakistan who would then appoint a tribunal for the settlement of such disputes.
Parliamentary system with unusually strong head of state
The 1956 Constitution established a parliamentary form of government. The executive branch (the prime minister and the cabinet) was drawn from the legislature (National Assembly). The Prime Minister was the head of the government, while the president was the head of state. It was mandatory for the prime minister and other ministers to be members of the parliament. In case of appointment as a minister of a person who was not a member of the Assembly, he/she was to become its member within a period of six months otherwise he/she would cease to serve as minister.[7] Article 37 (7) of the constitution clearly stated that in the exercise of his functions, the president shall act in accordance with the advice of the cabinet except in cases where the constitution empowered him to act in his discretion. Cabinet members were also accountable to Parliament. The president was elected by an electoral college consisting of the National Assembly and the provincial assemblies.
In a parliamentary form of government, the head of state usually enjoys ceremonial powers only. Under this constitution, however, the president enjoyed more than just ceremonial powers. The president enjoyed constitutional powers to appoint a National Assembly member as prime minister if, in his view, such a member enjoyed the confidence of the majority in the National Assembly, and the PM had to take a vote of confidence within two months. Even the Prime Minister held office during the pleasure of the President who was empowered to remove the PM if he was satisfied that he had lost the confidence of the majority in the House. The president was also authorized to appoint and remove ministers, ministers of state and deputy ministers.
The president was given discretionary powers in the appointment of Chairman and members of the FPSC, Chief Election Commissioner and other members of the Election Commission, and chairman and other members of the Delimitation Commission.
Under the constitution, the president was authorized to issue ordinances when the National Assembly was not in session, and such ordinances were to remain in force for six weeks from the next meeting of the Assembly unless disapproved by the Assembly before the expiry of six weeks. In case the president withheld his assent from a bill passed by the Assembly, the Assembly was required to pass the bill again with two-thirds of the members present and voting to override the President’s withholding of assent.
Though the Parliament was the only body which could authorize the levy of taxes through its acts, the president’s recommendation was required for the introduction of all money bills in the House. The president could also proclaim emergency in case circumstances demanded and it was to be placed before the NA as soon as it was practicable for the President to summon it.
Though the president could be impeached by the National Assembly, a notice of intention to move an impeachment resolution had to be given by at least one-third of the total number of members of the National Assembly and passed with three-fourths of the total number of members of the National Assembly.
Unicameral Legislature
According to the 1956 constitution, Pakistan had a unicameral legislature. It was known as the National Assembly. It consisted of 310 seats with 300 of them general seats and 10 reserved for women. The seats were equally divided between the two wings of the country -each having 150 general and 5 reserved seats. The Assembly was authorized to change the number of total seats, but it had to maintain equality between the two wings.
The National Assembly was to be elected directly by the electorate for a term of five years. Candidates for the National Assembly were to be at least 25 years old. The sessions of the National Assembly were to be presided over by the Speaker and Deputy Speaker in the absence of the Speaker. The Speaker of the National Assembly was also to act as acting president in case the president was outside of the country or otherwise unable to perform his duties.
Fundamental rights
The second part of the constitution guaranteed fundamental rights to the citizens. Rights to life, liberty, and property were guaranteed. It promised protection against arbitrary arrests and the provision of due process of law. Similarly, rights like freedom of speech and expression, movement, assembly, association, and profession were also guaranteed. The constitution provided for equality of citizens before the law. The right to profess, practice and propagate one’s religion was also guaranteed. However, fundamental rights were provided with specific qualifications. The judiciary was given the responsibility to enforce these rights.
Independence of Judiciary
The 1956 constitution provided for an independent judiciary. The methods of appointing judges of the higher judiciary, their qualifications, security of tenure and perks and privileges were designed to ensure judicial independence.
Under the 1956 constitution, the Chief Justice of the Supreme Court was to be appointed by the president and other judges by the president after consultation with the Chief Justice of the Supreme Court. As far as their removal was concerned, they could be removed by the president after an address by the National Assembly which required a majority of the total membership of the National Assembly, and a two-thirds majority of members present and voting. However, such an address had to be based on the grounds of proved misbehaviour or physical or mental infirmity.
The procedure for the appointment and removal of judges of High Courts was different from the one for the judges of the Supreme Court. Judges of High Courts were appointed by the president after consultation with the Chief Justice of the Supreme Court, governor of the province where the appointment was made, and the chief justice of the concerned High Court for the appointment of judges other than the chief justice. Judges of High Courts could be removed by the president on the grounds of misbehaviour or physical or mental infirmity. However, such grounds were to be confirmed by the Supreme Court after a reference made to it by the president.
The constitution fixed salaries of 5500 for the Chief Justice and 5100 for other judges of the Supreme Court while 5000 for the two chief justices and 4000 for the other judges of the High Court.
Two State Languages
Urdu and Bengali were declared as state languages. However, English was to be used for official purposes for twenty-year after the enforcement of the constitution. After the expiry of the twenty years period, the parliament, through an act, could provide for use of English for any purposes specified in the act. Ten years after the commencement of the constitution, the president was to appoint a commission to make recommendations for the replacement of English.
Semi-Rigid Constitution
The 1956 Constitution was a semi-rigid constitution. The amendment process was neither as simple as in the UK where simple majority is needed for an amendment nor as rigid as in the US where any bill seeking to amend the constitution is to be passed by the Congress with two-thirds majority and then by three-fourths of the states. Under the 1956 constitution, any bill for the amendment of the constitution needed a majority of the total members of the National Assembly and two-thirds majority of members present and voting and assent of the president. Therefore, I can be termed as a semi-rigid constitution.
Notes
[1] The constitution came into force on 23rd March 1956. This day was fixed by the Constituent Assembly as required by article 222 (4) of the new constitution. Article 220 stated that articles 218, 219, 220, and 222 shall come into force at once and therefore, the interim president (article 222 (2)) was elected on 5 March 1956. The interim President had to serve until a regular President, elected after the first general elections, entered office.
[2] Congress leader B. K. Das contended that since Pakistan was also the homeland of Hindus, Sikhs, Christians, and others, it should not be named as the Islamic Republic as it would hurt the feelings of other religious groups. The AL, GD, and PNC members cast votes against the adoption of the nomenclature of the state as the ‘Islamic Republic of Pakistan’. Two Hindu ministers of the central government, K. K. Dutta and A. K. Das, and a Hindu minister of the provincial cabinet, B. K. Das voted with the opposition. C. E. Gibbon, an Anglo-Pakistani representative abstained from voting.
[3] According to Merriam Webster Dictionary, “a preamble is an introductory statement or preliminary part of a document, speech, law, or constitution that explains its purpose, background, and goals.”
[4] Directive Principles of State Policy are a set of guidelines and instructions included in a country’s constitution which the government should follow in formulating state policies to establish a just society. However, they are non-justiciable, which means that Directive Principles cannot be enforced by courts like fundamental rights.
[5] A federal form of government is one in which powers are divided between the center and provinces by the constitution.
[6] A declaratory judgment formally declares the parties’ legal rights or legal position without necessarily ordering a party to perform, or refrain from performing, a particular act.
[7] With regard to minister of state and deputy minister, the constitution clearly stated that no person shall be appointed as minister of state or deputy minister unless he is a member of the Assembly.