Izzat Hayat looks at a
remarkable document that has passed the test of time
The British are proud of their unwritten Fifty years of 1973 Constitution and while ruling India they refrained from writing down a constitution though they kept on churning out rules and regulations that assisted them in governing the subcontinent by codified law. The last written document the British gave the subcontinent was the Act of 1935 that came into being as the result of almost two years of deliberations undertaken between British parliamentarians, Indian politicos and constitutional experts. Lord Linlithgow who headed this process was rewarded by being assigned to India as the British viceroy and ruled for the longest period in the twentieth century overseeing almost the entire Second World War. Considering the Act of 1935 was a tentative measure, the British held elections in 1946 and called the elected representatives as members of legislative assembly. Accordingly, the British withdrew from India handing over power according to the Act of 1935 but they advised both the new dominions to devise their own constitutions after attaining independence.
After obtaining independence, during its first few years of existence the British monarch was also Pakistan’s head of state and the need for writing a new constitution was imperative. Before drawing a constitution, the Pakistan Constituent Assembly passed the Objectives Resolution in 1949 clarifying basic directive principles of the new state and declared state recognition of the sovereignty of Allah over the universe. The Objectives Resolution affirmed the role of democracy and contained religious provisions to enable society to adhere to the teachings of the Quran and Sunnah. The Objectives Resolution has henceforth been inserted as a preamble into each of Pakistan’s subsequent constitutions.
The process of writing the constitution remained contentious as the issue of parity between two wings of the country remained unresolved. The Bengali leadership insisted upon recognising its majority but it was contested by the more viable western wing of the country. Despite difficulties Pakistan was able to pass its first constitution in 1956 but it was soon abrogated by imposition of martial law in the country that gave its own presidential constitution of 1962. After another political upheaval, the 1962 was suspended in 1969 and abrogated in 1972.
Since its inception, Pakistan saw her first general elections on 7 December, 1970 based on adult franchise in which the People’s Party swept the polls in the western wing of the country and the Awami League in East Pakistan. Pakistan faced great turbulence from 25 March, 1969 to August, 1973. Earlier, General Yahya Khan promulgated a Legal Framework Order defining the qualifications of people who would be allowed to contest in the elections. The Constituent Assembly was to stand dissolved if it was unable to frame the Constitution within 120 days. Actually, the Legal Framework Order was to act as an interim Constitution. One Unit was dissolved in West Pakistan and direct ballot replaced the principle of parity.
After coming to office Pakistan People’s Party under the leadership of Zulfikar Ali Bhutto invited the leaders of the parliamentary parties to devise a constitution and the result was an agreement known as the Constitutional Accord. The National Assembly of Pakistan appointed a committee of 25 members to prepare a draft of the permanent Constitution of Pakistan that was signed by leaders of all parliamentary groups in the National Assembly. The 1973 Constitution came into effect from 14 August 1973 to the satisfaction of the political elements of the country. It has been almost fifty years to this event and the 1973 Constitution is intact and few military regimes that came to power during this half a century could not abrogate it.
The primary reason for the sanctity and longevity of 1973 Constitution is that it was the first consensus based constitution in Pakistan. The most prominent characteristic of this Constitution was that it accommodated proposals from the opposition parties and almost all the major political parties of the country accepted it. This faculty gave the constitution an edge over all similar attempts made in the past in this respect and created a halo around it that has become sanctified over the passage of time. This national document is revered in the national mainstream and is invoked in almost all this issues that deserve settlement. The constitution declared Pakistan to be a federation of four federating units, Punjab, Sindh, NWFP and Baluchistan and they were given representative parity with the creation of a senate.
Most importantly, the constitution of 1973 was described as the symbol of national consensus and it has ever since served as a symbol of national unity. It established a democratic form of government and it was only after the 1973 constitution that opposing groups started looking for support from the existing opposition politicians and parties on the right of the political spectrum. The scene was finally set for a party government and a party-based opposition that still suffers from restrictions but is gradually maturing in content and practice. The Constitution is a written one consisting of 280 Articles classified into 12 chapters and seven schedules and is parliamentary in nature following Westminster style of democratic governance. The appointment of federal and provincial cabinets is to be made from amongst the members of the elected houses.
The Constitution is partly flexible and partially rigid as any attempt to amend it could be initiated in any of the house of the Parliament and is required to be ratified by two-thirds majority of both the houses. The Constitution of 1973 set up a bicameral legislature at the Centre consisting of two houses, the National Assembly (Lower House) and the Senate (Upper House). The Constitution provided a free and independent judiciary guaranteeing interpretation of the constitution in its true sense. In light of the previous experience, the Constitution of 1973 was more Islamic in character than the previous ones with emphasis made to establish a real Islamic system in all aspects of social life. Keeping this objective in mind, more Islamic provisions were laid down in the Constitution of 1973.
The Constitution laid down principles of policy and the basic objectives and future plan of action of the political system. It has been made obligatory on all government agencies to take guidance from principles of policy while performing their respective functions. It prescribed direct system of election to return the deputies to different legislative assemblies but indirect mode of election has been retained for the elections of the Senate. The Constitution explicitly and distinctly states in that government shall not take any action without due process of law that stands injurious to one’s personal liberty and security.
The 1973 constitution outlined the framework of a federal democratic structure. And it strengthened civil democratic governance and to preclude the possibility of any shape and form of subversion it prescribed death penalty for the subversion. The Constitution strengthened the position of civilian leadership and allowed the civilian head of the government to strengthen his or her position by concentrating legal authority in his hands. The constitution ensured that in the future no president would be able to act against the advice of prime minister or issue any orders without the approval of the prime minister. TW