Pakistan’s ‘Permanent Constitution’: Historical Antecedents and Original Framework
This section presents a discussion of the historical antecedents of the 1973 Constitution. It looks at the constitutional frameworks that preceded the Constitution and the major contestations involved in their making.
It then locates the original framework of the 1973 Constitution within this historical context.Prior to the 1973 Constitution, Pakistan was governed by a number of different constitutional frameworks. Interim arrangements aside, the three main constitutions were the Government of India Act of 1935 (hereinafter the ‘1935 Act’), the last pre-independence constitution of British colonial India;[881] the Constitution of 1956; and the Constitution of 1962. The 1935 Act was adopted with some modifications as the post-independence constitution pending a new indigenous constitution. The 1956 Constitution was the first ‘permanent constitution’ to be promulgated by a constituent assembly, only to be abrogated in 1958 in a military coup.[882] The 1962 Constitution was introduced after an interregnum of four years by the same military government that abrogated the 1956 Constitution, but suffered a similar fate when it was abrogated in 1969 by a succeeding military regime.[883] Two interim constitutional frameworks followed, eventually to be replaced by the 1973 Constitution.
Thus, Pakistan’s constitutional journey, like India’s, began with the 1935 Act, a colonial system of ‘bureaucratic despotism’ designed for centralised control over the native Indian population.[884] Among its main features was the concentration of executive powers in the office of the Governor General and a centralised judicial system, which was an integral component of the coercive apparatus of the colonial state.[885] While India's Constitution of 1950 was also a modulated form of the 1935 Act,[886] various factors at the time of partition led to divergent legacies of the 1935 Act in Pakistan.
The 1935 Act amplified the political power of the executive-dominated state bureaucracy over other civilian institutions in Pakistan, including the nascent founding political party, the Muslim League.[887] The historical conditions that led to the rise of the ‘over-developed bureaucratic state'[888] included severe resource constraints, a refugee settlement process of gargantuan proportions, the battle over the accession of princely states and other territories, a preoccupation with state-building and national security, and the de-prioritisation of strong representative institutions.[889] It was in these extraordinary conditions that the first Constituent Assembly of Pakistan - elected through provincial legislatures in the year prior to independence and a rump of the Constituent Assembly of India - was expected to draft a new constitution in addition to acting as the central legislature.Quite apart from the Governor General’s powers, the civil and military elite’s resistance to democratisation, and the unravelling contestations between the centre and the provinces, there were two other structural constraints that contributed to thwarting early constitution-making efforts. The first of these was the struggle between secularists and Islamic modernists, and a heterogeneous set of Islamist pressure groups with varying demands for an Islamic constitution, leading to a complex process of accommodation. The second was an ethnically defined geographical divide, which was unprecedented in modern state-formation. At the time of partition, Pakistan comprised two ‘wings', East and West, separated by more than 1,000 miles of hostile Indian territory. East Bengal or East Pakistan - situated on the eastern tip of the Indian Subcontinent - was its largest province, consisting of well over half the country's total population.[890] Added to their physical isolation was the fact that the Bengalis in the East, despite being the largest indigenous and regionally discrete ethnic group in Pakistan, were discriminated against in the upper levels of the bureaucracy and military, and had virtually no control over their industry and commerce.[891] The reluctance of the bureaucratic leadership in West Pakistan to strike a fair constitutional agreement with East Pakistan was premised on a fear of the latter's numerical dominance.[892] Hence, for the first decade, Pakistan was embroiled in a constitutional stalemate.
It was only in 1955 that the elites from both wings reached a constitutional bargain, albeit in the larger context of a rapidly worsening civil-military imbalance.[893]The 1956 Constitution emerged from this elite bargain, which was made possible only after the Constituent Assembly was dissolved and reconstituted by the Governor General.[894] Its central feature was a system of East-West representational parity, with seats in a unicameral central legislature apportioned equally between the two wings. In West Pakistan, this necessitated the dissolution of its provincial territories into a single political unit, known as the ‘One Unit' - a measure that was steamrolled against the backdrop of opposition from the smaller provinces.[895] As regards the agreement on the role of Islam, the 1956 Constitution declared Pakistan an ‘ Islamic Republic', making it one of the first post-colonial ‘Islamic States' in the world. In addition, the Constitution adopted as its Preamble the ‘Objectives Resolution, a constitutional blueprint dating back to 1949 which struck an uneasy compromise between a liberal democratic framework and Islamic principles.[896]
The 1956 Constitution was short-lived. The new military regime of General Ayub Khan that took over power in a coup in 1958 abrogated the Constitution.[897] The main motivation for the coup was the unpalatable prospect of popular elections.[898] After four years of martial law, Ayub Khan introduced the 1962 Constitution, professing that it was more in line with the ‘genius of the people'.[899] The 1962 Constitution reverted to an executive-dominated government, but at the same time attempted to construct a more secular vision of Pakistan by omitting the reference to an Islamic state and other Islam-based provisions. However, reactionary responses from ulema (Islamic scholars) ‘to make the constitution visibly Islamic' led to the re-insertion, only a year later, of most Islamic provisions contained in the 1956 Constitution.[900] In 1969, Ayub Khan was forced to resign following a massive social movement,[901] paving the way for the country's first democratic transition.
The hegemony of the ‘military-bureaucratic complex' and the oscillation between civilian and military governments have been central to constitutionmaking in Pakistan. But much as military regimes have been at the forefront of constitutional engineering since the 1950s, there have been three major fault lines in constitution-making experiments across time, whether imposed by military regimes or produced by democratic governments. These are: the design of the centre and its institutions; the division of power between the centre and provinces; and the demarcation of the role of Islam in the state. I analyse the original 1973 Constitution from the perspective of these focal contestations and the extent to which the new Constitution departed from historical settlements on these issues.
A. The Centre
Like the Indian Constitution, the 1973 Constitution is a lengthy and descriptive document that encompasses both the general outlines and administrative minutiae of government.[902] The ‘core ingredients' of the original Constitution included a bill of rights and a ‘power map'[903] establishing a democratic government based on a federal parliamentary form of government and an independent judiciary with express judicial review powers.
The parliamentary form of government in the new Constitution consisted of a titular President, a cabinet and an indirectly elected prime minister as the executive.[904] It stood apart in many ways from previous constitutions. The 1956 Constitution was essentially a cosmetic variation on the 1935 Act as it vested executive authority in a president, with discretionary powers to appoint and remove the prime minister.[905] The 1962 Constitution, on the other hand, made no pretences about military authoritarianism - it was described as a ‘Presidential Cabinet without a Prime Minister'.[906] The 1973 Constitution overcorrected for the historical president-prime minister imbalance by granting the prime minister special powers over both the president and the parliament.[907]
The bill of rights, known as ‘Fundamental Rights’, contained the full spectrum of rights ranging from civil and political rights, socio-economic rights relating to property and work, and collective rights like non-discrimination in respect of religion, access to public places and public employment (Articles 9-28).
The Fundamental Rights were directly enforceable by the provincial high courts and a centralised apex Supreme Court.[908] These ‘Constitutional Courts' were endowed with a special ‘original jurisdiction' with expansive remedial powers for the enforcement of the Fundamental Rights (Article 184(3)). The Constitution expressly provided that laws that were inconsistent with or made in derogation of the Fundamental Rights were void (Article 8). The combination of judicial power and the Fundamental Rights contained in the 1973 Constitution was unprecedented. The 1935 Act had no bill of rights and only limited judicial review powers. The 1956 Constitution had a similar framework, but was aborted before it could be implemented. The original 1962 Constitution lacked an enforceable bill of rights.Overall, the design of the cabinet government in the 1973 Constitution departed fundamentally from historical constitutional frameworks in Pakistan. While the inclusion of strong-form judicial review was ostensibly a check on parliamentary authority, the hyper-powers of the prime minister granted him and his cabinet a fair amount of autonomy from the legislature, making his position more akin to the executive in a presidential form of government. Moreover, some of the powers of the National Assembly - the directly elected lower house to which the prime minister was responsible - were made subject to checks by the Senate, an indirectly elected upper house. Thus, the broader structure of the government looked more like a subtype of the separation of powers system with a federal bicameral legislature subject to constitutional review.
B. Centre-Province Relations and Provincial Autonomy
The 1973 Constitution introduced important innovations in federal design. The 1935 Act had proposed a conditional formula for the federalisation of Indian territories that did not materialise under colonial rule. At partition, the preindependence demarcation of subterritories carried over into the new state of Pakistan.
However, the 1956 Constitution eliminated all internal boundaries in the West wing through the ‘One Unit' plan because of the East-West stalemate over the federal question. The 1962 Constitution left this One Unit structure and East-West parity intact.[909] Thus, both the 1956 and 1962 Constitutions suppressed regional territories in the West to create a ‘bipolar federation'.[910]The 1973 Constitution embodied a number of historic firsts for centre-region relations. One of these was the disbanding of the One Unit and recognition of the four main regions - Punjab, Sindh, North-West Frontier Province (now Khyber Pakhtunkhwa) and Balochistan - as de jure ethnic identity-based sub-units with their own provincial governments and law-making powers. This was in direct response to historical demands for the constitutional recognition of minority regions and ethnic groups that were otherwise dominated by the disproportionately large and historically powerful province of Punjab.[911] Another innovation was the establishment of the Senate, a federalist body for the equal representation of the provinces at the centre.
In sum, a number of political demands put forth by democratic constituencies since independence finally found expression in the 1973 Constitution. The adoption of a parliamentary system, accommodation of an ethno-regional federal structure with a bicameral central legislature and a re-distribution of power through provincial autonomy all reflected a political reversal on heated questions that had eluded past constitution-makers. That this agreement came after much acrimonious contestation between the majority party and smaller regional parties, or that it did not go far enough in accommodating minority interests, or that its full implementation was hamstrung by the majority party, or that it was suspended by a dictator shortly after its making, does not take away from the singular achievement of making a ‘permanent constitution' through a democratic process in a historical context of constitutional impasse and authoritarian government for almost a quarter of a century.
C. Religion and State
The original 1973 Constitution, like most other post-war constitutions, combined elements of history, ideology and culture. It was also distinctive in that it was an ‘Islamic Constitution', though it closely resembled its predecessors. Indeed, the Preamble was a verbatim reproduction of the Objectives Resolution and, as such, reflected a continuity in political demands since independence for an Islamic constitution. The incongruities between Islam and liberal notions of constitutionalism thus carried over to the 1973 Constitution. The Constitution contained other Islamic provisions as well. These included a preambular declaration that ‘Muslims shall be enabled to order their lives... in accordance with the teachings and requirements of Islam' (Preamble), along with a set of provisions deriving from this declaration; a provision mandating that the head of state be Muslim (Article 41(2)); and a non-justiciable ‘repugnancy clause' declaring that ‘no law shall be enacted which is repugnant to such [Islamic] Injunctions' (Article 227(1)) and establishing an advisory body for making recommendations to the parliament on whether a proposed law was repugnant (Article 228). The 1956 and 1962 Constitutions contained these provisions in broadly similar terms.[912] The only major addition in the 1973 Constitution was a kind of ‘establishment clause' that made Islam the ‘State religion of Pakistan' (Article 2).[913]
At the same time, the 1973 Constitution was unique in the degree to which Islamic principles were merged with, and in many ways made contingent on, a progressive framework for socio-economic re-structuring. The progressive character of the Constitution was a novelty, particularly its recognition of labour rights, commitment to a broadening of the economic base, latitude in allowing for an expanded role for the state in regulating private wealth and unprecedented focus on securing gender equality. Thus, although the broad ‘legitimating principle'[914] of the new political order was Islamic ideology, the latter was ostensibly a progressive vision of Islam centred on ‘an egalitarian society' (Preamble). The merger of an Islamic state with progressivist ideals was most evident in the chapter on ‘Principles of Policy', which laid out a prescriptive policy schema for guiding executive and legislative functions (Chapter 2). On the one hand, the Principles iterated the state's role in enabling ‘the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam' (Article 31(1)). On the other hand, they read like a socialist charter, directing the state to safeguard the rights and secure greater public participation of vulnerable and marginalised groups (Articles 32-39); to promote social justice through special treatment of ‘backward classes and areas’, inclusive education reform, inexpensive and expeditious justice delivery, and improved working conditions and benefits for the working classes (Article 37); and to ensure social and economic well-being through the provision of basic necessities of life and equal opportunities, and the reduction of income and wealth disparities (Article 38). The Constitution contained other socialist provisions as well, including reserved parliamentary powers to alter property relations through land reform and to nationalise private industry and business (Article 253). Thus, in many respects, the Constitution was not unlike other post-colonial Asian constitutions in their detailed references to socio-economic structures and promotion of a welfare state.[915]
Against this backdrop, the question arises as to how the 1973 Constitution has stimulated change in the political trajectory of Pakistan. Appreciating the lived utility of a constitution requires more than an understanding of its substantive qualities; it requires a long-range view of constitutional contestation and transformation in practice. Loewenstein's appraisal of constitutions on the basis of their impact is highly relevant in this regard.[916] Loewenstein argues that constitutions may be ‘normative' (in which political process conforms to the constitutional framework), ‘nominal’ (in which power structures are in conflict with constitutional norms and render them ineffective) or ‘semantic’ (in which the constitutional text describes the existing system of government without imposing binding rules on it).[917] Loewenstein’s typology is dynamic as it emphasises the degree to which political reality conforms to the norms of a constitution at a given point in time. It explicitly recognises that the meaning of constitutions is contingent on political environments in which they are embedded and that constitutions are thus evolving political documents. In Loewenstein’s terms, the original 1973 Constitution is a case of a nominal constitution. It is not a case of a failed or aborted constitution like the 1956 Constitution or of a semantic constitution like the 1962 Constitution. Conceptualising the 1973 Constitution as a nominal constitution does not gloss over its many flaws, nor does it reduce these flaws to the problem only of underenforcement. On the contrary, it makes it possible to engage, simultaneously, with the utility of imperfect constitutions as sites of struggle and contestation, and the normative value of constitutionalism.
The following section outlines a theoretical framework for understanding the 1973 Constitution as a model of resurgent constitutionalism in which a ‘nominal’ constitution may evolve into a ‘normative’ constitution over time.[918]
II.