CENTRALISATION OF POWER

The absence of public political culture that had preceded its evolu­tion in the UK was cited as a reason for doubting the suitability of the parliamentary system for the newly-independent nations of South Asia.

A striking rightward orientation of government from the moment of Pakistan’s inception, in contrast even to elite discourse prior to Partition, was expressed in the consolidation of a law-and-order state. Entailed in such a description is a hierarchically-organised structure oriented to quelling dissent and regional challenge. Such tendencies had taken root from an earlier propensity within the Muslim League itself.^[77] Jinnah’s assumption of the title and powers associated with a colonial style ‘Governor-General’ reinforced the impression of authoritarian, centralising drift.

In a contrasting view though, Ayesha Jalal offers an appraisal of the move in line with the strategic objectives that Jinnah was safeguarding.

The manifold difficulties of Partition included the loss of the larger part of the government of India’s military machinery to India. In light of border disputes with India, Pakistan’s sovereignty came to be viewed as dependent on its ability to develop adequate defence capac­ity to stave off the Indian threat. Importantly, the outstanding issue of Kashmir as contested territory provided the ideological legitimation for the army’s resource capture in these early years.

When the Indian army violently suppressed the Kashmiri revolt against the Maharaja’s accession to India in 1947, the commander of the Pakistan armed forces did not deploy troops directly but rather large contingents of ‘tribal fighters’ were organised and sent to aid Kashmiris in their struggle.^[80] The idea of a spontaneous resistance from within Pakistan’s territory fuelled the idea that ‘Muslim’ Kashmir needed liberating from ‘Hindu’ India. Upon a complaint by India to the UN, Resolution No 47 was passed, calling upon Pakistan to ensure the withdrawal of their fighters. More importantly, the resolution called for the ‘democratic method of a free and impartial plebiscite’ to allow for the exercise of self-determination by the Kashmiri people to decide their future as part of either India or Pakistan. In 1949, a cease-fire line was drawn through the state of Jammu and Kashmir.^[81] [82] The territory held by Pakistan has been known since as Azad [free] Jammu and Kash­mir, and the ‘liberation’ of all of Kashmir thereafter became a part of the official and national credo of patriotic Pakistanis.

The early centrality of the army allowed it to assume a place along­side the bureaucracy and together they reinforced and benefited from the weaknesses of the young state’s political sphere.¹¹ Given the limited nature of representative government even in late colonial India as well as the remoteness of the British legislature to Indian concerns, the bureaucratic apparatus, commandeered at the top by appointees to the Indian Civil Service, had been the ‘steel frame’ through which rule had been effected. Pakistan’s share of Indian Civil Service personnel was limited, and to reconstitute its administrative services ‘the government decided to retain 355 British officers from amongst those already pres­ent in Pakistan and the services of 129 officers were obtained from England to meet the immediate shortage of officers.’^[83] Within a weak political sphere, the existing apparatus of the civil bureaucracy was given great powers. For example, ‘three of the four governors were British and former Indian Civil Service officers and two of these Gov­ernors presided over Cabinet meetings’.^[84]

Early federalism was subservient to the imperatives of centralised control. With its wide-ranging powers, the central government could dismiss provincial governments and resort to Governor’s rule at the least provocation. These were mechanisms available through the 1935 Act and resulted in the bolstering of central bureaucratic authority. The North West Frontier Province (NWFP), Sindh and Punjab Assemblies all suffered this fate early on.

At the federal centre, the Constituent Assembly comprised those representatives of the provincial Assemblies that had been elected according to the provisions of the 1935 Act in the elections of 1946. In addition to these members, who totaled 69 for a unified Pakistan on the eve of Partition, were added another 11 members, including representatives of the migrant population, the Princely States and other territories incorporated with varied legal statuses within the new coun­try.

The Constituent Assembly fared no better in being able to with­stand or fend off high executive assault than the provincial Assemblies, however. While during Liaquat Ali Khan’s tenure as Prime Minister (1947—1951) greater powers were vested in his office in recognition of the principles of cabinet government, Prime Ministers after him were threatened by the expanse of powers that the Governor-General’s office wielded. Khwaja Nazimuddin had succeeded to the post of Governor-General at the time of Jinnah’s death in 1948 and then traded office to assume the position of Prime Minister in 1951 when Liaquat Khan was assassinated. The Governor-General who suc­ceeded him, Ghulam Muhammad, dismissed the Prime-Ministership of Nazimuddin in 1953, ostensibly for being unable to meet the demands of a law-and-order situation that had arisen in the Punjab.^[85] However, the instigators of this dismissal were thought to be many: the military for having had its budget curtailed; the politicians of the Punjab who had been accused of having fomenting hate-based rioting in their prov­ince against the Ahmadiyya community;^[86] [87] and the cadre of West Paki­stani bureaucrats who expressed dislike of the Bengali Nazimuddin’s authority.

As Constitutional deliberations continued, the Assembly also tried to increase its powers through a number of laws aimed at amending the governmental formula implanted by way of the 1935 and 1947 Acts. Opposition to these democratic forces was on the rise and the Governor-General responded more forcefully next, dismissing the Constituent Assembly itself in 1954, just three days prior to the pas­sage of what would have been the country’s first Constitution.

Maulvi Tamizzuddin Khan, Speaker of the dissolved Assembly, first sought relief at the Sindh High Court by filing writs against the Council of Ministers appointed by Ghulam Muhammad and requested that the act of dissolution be reversed. Importantly, writ jurisdiction had been accorded to the courts by the Assembly just prior to dissolution. The High Court assumed jurisdiction on this basis and granted a verdict that was favourable to the dismissed Constituent Assembly.^[88] In con­trast, at appeal in the Federal Court, the primary issue was reframed as whether such amendments were in fact law given that they had not been assented to by the Governor-General.

Tamizzudin relied upon the Rules of Procedure framed by the Con­stituent Assembly to argue that the Governor-General’s assent was not a necessary step in the creation of law^[89] A majority decision of the Fed­eral Court declared that the Governor-General’s assent was, however, a necessary feature of law under the two constitutional documents that were guiding all divisions of power within the government.^[90] Thus the decision of the Sindh High Court was reversed and it was found to have had no lawful authority for the granting of relief. In choosing to ask the question of whether or not the Assembly had acted ultra vires in presuming to pass legislation without the authorisation of the Governor-General, the question of whether the Governor-General had exceeded his own authority in dissolving the Assembly was elided by the Federal Court.

In the subsequent 1955 Usif Patel^[91] case, the Federal Court endeav­oured to correct the Governor-General’s ensuing misapprehension that the Tamizzudin verdict was in any way a licence for him to exercise unfettered legislative powers. Citing the general scheme of the 1935 Government of India Act and the 1947 Indian Independence Act, the court imposed limits on such powers.

In a majority judgment, with two notable dissents, the court conjured up the doctrine of state necessity as the ‘rule of law’ to increase the Governor-General’s legislative competence to provide for the continu­ance of these laws. Accepting that the combined force of the 1935 and 1947 Acts did not offer the Governor-General the kinds of discretion­ary authority he was seeking in law, this doctrine was forged from a variety of private law principles and some vague public law maxims. Altogether, the court condoned a range of executive acts which ‘would otherwise be illegal’ but for being undertaken ‘under the stress of necessity’.

This initial invocation of the doctrine of state necessity gave impe­tus to its use in the service of validating military coups in Pakistan in subsequent decades, as detailed later in this book.^[93] Nasser Hussain posits that the court invented the idea that an intractable political dead­lock between executive and legislator could be mediated by ‘rules’ as a necessary step in illustrating the place of ultimate sovereign authority. The doctrine of state necessity provided thereby the principal rule that rules can be broken, bent or ignored when the state itself is in a situa­tion of peril. It also accepted that the executive branch is most advan­tageously able to meet such peril. In the factual scenario of the army possessing disproportionate power and resources within the country, it is not too much of a leap for the judiciary to accept it as the ultimate decision-taker on matters of state necessity. The minor constraints on exceptionalism still in place with the doctrine of state necessity were altogether absent when the same court accepted the purely positivist notion of ‘revolutionary legality’ to justify the assumption of power by Pakistan’s first military ruler, Ayub Khan, in 1958.

Altogether then, the movement towards executive centralisation was enacted through mechanics that enjoined the judiciary in their opera­tions. In the Governor-General’s Reference, the court categorically accepted that the powers of dissolution and of reconstitution of the Constitu­ent Assembly were within the prerogative powers of the Governor­General. It thereby accepted that a second Constituent Assembly could be indirectly elected through the existing provincial Assemblies in May 1955, as mandated by an executive order of the Governor-General.^[94] This would be the Assembly that ratified Pakistan’s first Constitution in 1956.

II.