Making of a constitution: Part - I

The sovereignty of any institution is the power it holds in making its decisions without any external influence. But sometimes, through the power of sovereignty, the institution starts influencing other state institutions.

In the 1972-1973 period when Pakistan had just recovered from the shock of the 1971 events, the National Assembly remained the most significant institution of the state. This was also the initial period of the fifth National Assembly of Pakistan, which was elected in the 1970 elections. The assembly – at that time parliament comprised a single house – enjoyed sovereignty both legally and politically to such an extent that it was able to take innovative action in the sphere of public policy and institution building.

This was the time when the people of Pakistan saw the clear supremacy of parliament over non-elected institutions both de facto and de jure throughout the history of Pakistan. The task of the framing of the constitution, which parliamentarians completed within the assembly or making compromises outside the assembly, was not easy.

It was expected that after the separation of its eastern part, ‘New Pakistan’ would have no difficulties or problems in framing the constitution. But, unlike what we saw in Bangladesh, Pakistan’s constitution-making in 1972-73 was a complicated task and marked by several acute clashes between the government and opposition parties both inside and outside the assembly.

The old and complicated issues faced by constitution-makers in Pakistan were revived: the relationship between the state and the religion – controversy over the details of an Islamic constitution; distribution of powers between the centre and the provinces; the kind of executive suitable for Pakistan. All these issues generated lengthy and heated debates in the country even after its dismemberment at a time when unity was vital for its survival.

The controversy over an Islamic state took a dramatic turn when the ‘secular’ 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 to put up a brave fight to preserve cherished Islamic values and traditions.

The assembly formed the constitution with autonomy, and it was an almost unanimous function of the assembly that a constitution with the consent of both government and opposition came into existence. The Constitution Bill was finally introduced in the NA by the law minister on February 2, 1973 where it was debated on February 17, 1973 and passed on 10 April 1973. The NA, acting as a constituent assembly, began clause by clause examination of the new permanent constitution.

The draft constitution comprises 278 articles and six schedules. The committee held 48 sittings – a total of 175 working hours, spreading over a period of 38 working days in total. The average attendance throughout the sittings was 18 out of 25 members. In its deliberation, the committee made efforts to reach a consensus, and differences of opinion were resolved as far as possible in an atmosphere of free and open debate.

While preparing the draft of the permanent constitution, the members of the committee took full cognizance of realities and objective conditions in Pakistan. They proposed a basic law for Pakistan which would not only help create a progressive and egalitarian society but also provide an effective deterrent against exploitation in all forms.

The achievement of the government – particularly of Zulfikar Ali Bhutto himself and his minister for law and parliamentary affairs, Abdul Hafeez Pirzada – in getting the new constitution drawn up and accepted first by representatives of all political parties and then almost unanimously by the assembly, all in less than a year, was by any standards a considerable one.

The opposition’s cooperation for the strength of parliament cannot be ignored. The constitution represented a consensus on three matters: the role of Islam in politics, the sharing of power between the federal government and the federating provinces; and the division of responsibility between the president and the prime minister.

The formation of the constitution may be called one of the most brilliant successes of parliament besides all disputes and controversies. The adoption of the constitution by parliament unanimously increased the possibilities of the strength of parliament. 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 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.

The Constitution Bill was put to the vote and carried by 125 ‘ayes’ and three abstentions (Mahmood Ali Kasuri, Ahmad Raza Kasuri, and Shah Ahmad Noorani). On that occasion, the law minister moved a motion: “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.”

Afterward, the ceremony of putting signatures on the historical document of the constitution took place. In that ceremony, 137 members put their signatures on the original document of the constitution. Eight members of the assembly who did not take vote also put their signatures on the passage of the constitution. This fact proved that there were fewer controversies in the passage 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 felt miraculously lucky to get unanimous authentication of the constitution. It was the fifth to be drafted and the third to be adopted with no opposing vote.

The question of why the opposition cooperated with the government in constitution-making while there was unfavourable treatment on behalf of the government has been answered by explanations from different opposition leaders. Dr Abdul Hayee Baloch would say that the quality of the constitution was owed to the participation of the opposition. If opposition did not contribute a positive and vibrant part in the formulation of the constitution, it would remain a controversial document.

On that occasion, the opposition declared that they signed the constitution to save the country from civil war. Two days later, on April 12, 1973, the constitution was authenticated by the president.

To be continued…

The writer is professor of history at Punjab University and can be reached at: mahboob.history@pu.edu.pk