AYUB AND THE 1962 CONSTITUTION
The 1956 Constitution was abrogated before an election was held or a government sworn in under its provisions. A lifelong bureaucrat, Iskander Mirza, deposed the Governor-General, who was out of the country on account of illness in 1955, and then was elected President by the Assembly when the Constitution defined this role in 1956.
A delay in elections led to a period of heightened political turmoil and frequent changes at the head of government. These governments faced quite straightened circumstances, dealing with food shortages, balance of payments deficits, and the continuing problems associated with the resettlement of Partition refugees. The military struck a fairly strongfooted alliance with the US by signing the Mutual Defence Assistance Treaty, whereby arms and weapons transfers were considerably speeded up. In March 1957 Iskander Mirza declared Presidential rule.When then the Khan of Kalat declared independence for Kalat from Pakistan, President Mirza proclaimed martial law and named General Ayub Khan the Chief Martial Law Administrator. Assemblies and provincial governments were dissolved, political parties were abolished, group meetings were banned, politicians were arrested, and martial law regulations replaced the Constitution.[132] Former allies Ayub and Iskander differed on key matters and finally, with evidence that the army was backing him, Ayub took direct power by displacing Iskander.
That this takeover of power did not face widespread or popular opposition was a factor that was cited in the famous Dosso case, which effectively legitimised this coup.[133] Dosso also articulated the now famous revolutionary legality doctrine. Having no precedent in common law, it was a doctrine fashioned from the theoretical postulations of the Austrian jurist Hans Kelsen, who reportedly later clarified that the judgment has misrepresented his work.
In Dosso the court accepted that an effective transfer of power had shifted the grundnorm, the highest norm that grounds all further positive laws including the constitution, so that a wholly new legal order was in place. Unlike the doctrine of state necessity, revolutionary legality would not be revived to legitimate extra-constitutional takeovers of power, largely due to the decision in Asma Jilani[134] described below.Having learnt from the missteps of Ghulam Mohammad in the years 1954—55, the military regime now led by President Ayub Khan issued a set of supreme commandments to exercise de facto rule, towards restoring the body politic into a governable entity. Thus, although the Constitution itself had been abrogated by Mirza, the 1958 Laws (Continuance in Force) Order was passed to ensure the functioning and legitimacy of existing law and civil institutions.
Ayub would institute wide-ranging changes to the structure of government, doing away with the democratic pretensions of early years. In fact, in his retrospective position on the matter, the defenders of democracy who suggested that Ayub’s assumption of power retarded its realisation were characterised as arguing that ‘we did not have a long enough rope to hang ourselves with’.[135] He located the impossibility of realising democracy in the Pakistani terrain as flowing from the fractious nature of the Pakistani political sphere, which spawned endless parties and did not allow for stable coalitions. Both this and the somewhat messianic zeal of imparting a programme of multifaceted ‘reform’ are the factors that allowed him to proclaim his economic and political policies as ‘revolution’.
The Constitution that Ayub eventually fashioned differed in substantial ways even from the conservative recommendations offered by a Constitutional Commission that he himself had appointed in I960.[136] Commission members had suggested that parliamentary government was now innately a part of the South Asian genus, given its incremental introduction through the colonial experience.
As Chief Martial Law Administrator, Ayub had, by 1960, instituted the ‘Basic Democracy’ system. It allowed for the creation of an electoral college through local, non-party elections throughout Pakistan and they in turn gave him an overwhelming mandate to promulgate his Constitution from the office of President.[137] Thus empowered, Ayub offered up a system of government that enshrined a pyramidical structure of assemblies beginning with the creation of 80,000 constituencies across the country. The Constitution was presidential insofar as he/she would hold the power to veto any legislative action, as well as powers for the appointment of many important offices, including the Governors of provinces, the Chief Justice of the Supreme and High Courts as well as retaining emergency powers.[138] It was, in short, a Constitution that exhibited a general distaste for politics and politicians, and by extension the people they would represent. A range of formal limitations on political participation through the mechanics of disqualification of politicians and the control of political parties were operationalised in this era.[139]The Constitution specifically barred the Supreme Court from exercising jurisdiction in any area not directly conferred by it. It limited writ jurisdiction to High Courts and severely circumscribed its availability.[140] In addition, although it provided a list of ‘principles of law’ that were to guide the legislature in the making of law, judicial review on the basis of such principles was specifically disallowed. These principles included freedom of speech, freedom from arbitrary arrest and a host of other human rights. Significant changes were augured in through the First and Second Amendments to this Constitution. Whereas the original Constitution had been promulgated for the Republic of Pakistan, the first amendment was an act of rechristening the country the ‘Islamic Republic of Pakistan’.[141] The second amendment allowed for principles of law to be justiciable insofar as ‘laws inconsistent or in derogation’ of such enumerated rights could be held to be void.
The 1962 Constitution provided for a formal distribution of powers between the centre and the provinces, but one that worked in favour of the centre. A Third Schedule provided an expansive list of areas for exclusive federal jurisdiction and included the express provision that ‘where the national interest’ including the goals of maintaining security, financial stability, planning and coordination and the achievement of uniformity, were at stake, the central legislature could act without being questioned over want of jurisdiction.
Importantly in this era of heavy administrative centralisation, Bengalis, Baloch and Sindhis were vastly underrepresented in the military and in the federal bureaucracy. As things would not have noticeably improved, a 1955 tabulation suggests that there were no Bengalis at the level of General or Major-General, and for ranks thereunder on average only 1—2 per cent of the total strength at the intermediary ranks of Colonel and Major. For the bureaucracy, again, no Bengali occupied the highest office of Federal Secretary and for the ranks below, including Additional and Deputy Secretary, themselves highly powerful posts within the Provincial Civil Services (PCS), they consistently remained below the 10 per cent threshold.[142] Rather than seeking to placate regionalist discontent, Ayub sought in fact to insulate the operations of government further and moved the capital from Karachi to a purpose- built capital in northern Punjab, Islamabad. This alienated Muhajirs as well and set in train a decline in their centrality within the governance structure.
The authoritarianism of the Ayub regime was exercised through such measures as the tight regulation and frequent censorship of the press.[143] He also regularly achieved denunciation from Bar Associations across the country for having made public statements disparaging their profession. However, the Assembly and after the passage of the First Amendment to the Constitution mentioned above, the courts also became the site for the ventilation of grievance and some challenges to governmental authority, often through use of their writ jurisdictional 73
powers.[144]
Popular opposition to Ayub grew and disparate, as well as at times antagonistic, agendas aligned.
The Jamaat-i-Islami, which wanted to see reversals of the modernisation of personal laws through the 1961 Muslim Family Law Ordinance, shared a platform with the deeply secular National Awami Party and many others to form the Combined Opposition Party (COP).[145] In 1965 Ayub, as per the Constitution, was forced into calling a presidential election, albeit an indirect one on the basis of the electoral college of local bodies’ electors. The COP lent its full support to Ayub’s rival and the sister of Mohammad Ali Jinnah, Fatima Jinnah. While the results were closer in the East than in the West, it was a definitive victory for Ayub, albeit one plagued by allegations of rigging. In characteristic arrogance, Ayub would later say that Fatima Jinnah and the opposition had been ‘trying to fool people into believing that their rights had been denied under the 1962 constitution’.[146]Later in 1965 an event of considerable significance—war with India—would cleave through the existing disparities between East and West Pakistan to leave them even more remote from each other. The absence of accounting for the East’s defence at the time of the war became a significant rallying cry against the central government. In addition, the deliberations of the National Assembly registered a higher level of concern being raised about the relative underdevelopment of the East’s economy. The composition of this Assembly itself reflected the relative ascendance of an educated cadre vis-a-vis the diminishing power of landholders coming from the East; whereas from the West a mostly conformist landlord class with some power-sharing with a rising industrialist mercantile class offered greater support to presidential dictate. In addition to the trouble in the Eastern Wing, the long sublated ethnic tensions in the Western wing were starting to boil over. Most damagingly for Ayub, members of his own cabinet were defecting—most famously Zulfiqar Ali Bhutto, in his case to help establish the Pakistan People’s Party in 1967.
VI.