Constitutional basis of Pakistan and challenges to it

The civil democratic elements operating in Pakistan have also stood up for constitutional rule in the country. During the last 75 years the constitutional basis of the country has been repeatedly repudiated by successive military interventions that not only retarded the cause of constitutional rule by decades but also created a dual governance apparatus considered extremely harmful for the country and its polity. Unfortunately, the country is fated to move in cycles with the proponents of democratic and non-democratic rule creating their own zones of influence and defending their respective stances with full force further exacerbating the imbalanced governance structure. The situation has come to pass where the emphasis has shifted from the essential requirement of managing the country constitutionally to the extremely misplaced notion of desirability of democratic rule this underpinned by constitutional remit. This is a sorry state of affairs that does not appear to settle down in near future.

While talking about this situation it must be kept in view that Pakistani state was established by two Acts of the British parliament, the 1935 Government of India Act, which provided a measure of self-rule to colonial India and the 1947 Indian Independence Act. Both, but particularly the former, held fast to ideas of strong centralised rule embodied in the British viceregal state. The 1935 Act was imperial, equal parts autocracy and democracy but its Section five established the structure of governance and it operated as Pakistan’s constitution until a new one was finally framed. It was supplemented by the 1947 Act, which brought the Constituent Assembly into existence. Crucially, while the 1935 Act gave preeminence to the governor-general, the 1947 Act gave the Legislative Assembly charge of national affairs and the crucial task of drafting the constitution. It was very clear that the relationship between the executive and legislatures came into conflict and distorted the governance paradigm for years to come.

Intriguingly, though the 1935 Act allowed for legislative representation, historically it had also allowed the Governor-General to dismiss provincial governments at will. Before the Second World War the British relented to Congress Party’s pressure and withdrew the arbitrary power of the governor general to dismiss and withdrew it and assured the provincial governments taking office in 1937 that this power will not be used. It is also a fact of history that after independence and partition the Indian Union adhered to the British stance of not letting the governor general dismiss the political executive but keeping in view the political exigencies of the situation the governor-general office in Pakistan reinstated the arbitrary power assigned in 1935 Act that subsequently became a tug of war in Pakistan for a very long time to come.

In the political setup during the British rule, provincial assemblies were largely the domain of political parties dominated by traditionally powerful families and personalities who had deep roots in their constituencies and could count on the support of their supporters through thick and thin. The provincial assemblies carried weight in the national politics and due to the fact they became the Electoral College for the national elections of 1946 though this situation was bound to create rifts between the centre and provinces. This situation came much earlier than expected when the governor general in Pakistan reinstituted his arbitrary statutory powers provincial party leaders vigorously opposed and the potential for conflict between the centre and the provinces raised its ugly head. However, the dominance of the governor general continued throughout and it was noticed that between 1947 and 1956, the Constituent Assembly passed 160 laws, while the Governor-General issued 376 ordinances.

This dichotomy became a regular bone of contention between the centre and provinces and mushroomed into an inevitable executive-legislative battles in which the governor general was generally helped by the establishment that comprised the state and the military that supported it. Responding to models of governance which resembled autocracy, the enabling acts helped to lay the groundwork for authoritarianism. This malaise continued and resulted in causing serious breakdown of civil democratic governance of the country. Though it was overcome through democratic means in the first decade of the new millennium yet it’s after effects linger on and always threaten the governance fabric as is amply demonstrated by the recalcitrant role of the office of the president of the republic that is bent upon blocking any measure forwarded to it for approval.

One important aspect of the constitutional rule was the presence of judiciary that was kept largely autonomous and the 1935 Act guaranteed its freedom. Judges were often civil servants appointed through the bureaucracy to ensure autonomy from political interference, although this recruitment and appointment procedure also tied the courts to the executive. Many were also drawn from the bar and became members of the judicial hierarchy. In their judicial capacities, however, superior court judges were generally left to their own counsel and their judgments often challenged the exercise of executive authority. It was therefore frequently observed that political operatives liaised with the judiciary to air their views, challenge their opponents and occasionally redress their grievances. The British left a very strong legacy of civil litigation and one could observe all prominent social and political leaders approaching it frequently. It is often observed that the judiciary provided relief in any cases setting aside the arbitrary executive decisions.

Moreover, the judiciary was approached to intercede on behalf of civil society when the legislature was unable to do so and it did what it could particularly when the constitution-making apparatus was in disarray due to military intervention.
Despite having robust constitutional foundations, there existed no mechanism for reconstituting the assembly. This lacuna led to many of its members holding dual roles in the federal cabinet or served as provincial ministers while also serving in the assembly. Moreover, as members died or were removed by intra-party wrangling, new members were appointed by those who remained rather than elected by the public, further alienating the assembly from public opinion and electoral choice.

This resulted in a representative inertia that amply aided the establishment in manipulating the elected representatives. This apathy caused a serious disconnect between the people and their representatives encouraging the arbitrary authorities to hijack the national agenda repeatedly. The serous result of this wide distance from political roots hampered the process of constitution making. The political wrangles continued between well-entrenched partisan political groups and the legislature did not go far than forming several committees to frame basic constitutional principles with the hopeless result that its Basic Principles Committee took eighteen months to write a preambular Objectives Resolution that could pass muster with secularists, Islamic modernists and traditionalists alike.

Further disappointments were in store for the legislators as the subcommittee on fundamental rights never produced a draft acceptable to all its members clearly bringing to fore the deep doubts about the scope of the state. In addition, the subcommittee on governance found itself deeply divided about the separation of powers and failed to reconcile the dichotomy inherent in the governance regulations and prevailing arbitrary practices. The most damaging impact was the growing distance between both the wings of the country that soon became unbridgeable. The constitutional progress of the country was rendered ineffective despite clear principles it inherited at its inception. TW