THE 1956 CONSTITUTION

The second Constituent Assembly delivered Pakistan’s first Constitu­tion in 1956. It enjoyed only brief historical existence as the highest law of the land. Altogether, the first Constitution could have set back some of the centralising and authoritarian tendencies of the foundling state as the Constituent Assembly was engaged in wresting power back for the political sphere against the claims of discretionary and arbi­trary executive authority.

Given the broad basis of the anti-Bhtish agitations that had led to independence, it remained a fairly settled matter that the Constitution would contain a list of fundamental rights somewhat in conformity with the American Bill of Rights. Thus, the list of such enumerated rights included ‘familiar liberties such as equality of status, of oppor­tunity and before law; social, economic, and political justice; freedom of thought, expression, belief, faith, worship, and association’.^[123] In addition, ‘the federal government, the National Assembly, a provi­sional government or legislature, or any local authority’^[124] were barred from making any laws repugnant to any of the fundamental rights and to the extent that any such law was repugnant, it could be held to be void.

The machinery for redressal of rights violations by citizens or affected parties was that of a refashioned superior court system. The Supreme Court had replaced the old Federal Court and a system of High Courts was established for each of the provinces. Courts were given broad powers and writ jurisdiction was constitutionally conferred.

The balance of powers between executive and legislature was deeply contested within the Constituent Assembly debates. This Constitu­tion provided that representative actors would exist at the pinnacle of both branches of government. While the 1935 Act had enabled the Governor-General to appoint a cabinet and allow it to retain power subject to his pleasure, this power was whittled down for the President, so that the acts of summoning, proroguing or dissolving the National Assembly were to be undertaken ‘on the advice of the cabinet’. The President was to appoint the Prime Minister ‘in his discretion’ from amongst the members of the National Assembly as the person ‘most likely to command the confidence of the majority of the members of the national assembly’. As with the colonial Governor-General, the President retained the right to promulgate laws, called Ordinances, a continuing power that is described further in the Executive Chapter.^[126]

In terms of regional politics, federal, concurrent and provincial lists of legislative competence established initially by the 1935 Act were car­ried over in form.^[127] The powers accorded to provinces were increased and important areas including industries and railways were apportioned to them. Residuary powers, those subjects not enumerated within the lists, were to be assumed by the provinces. However, as against the demands of members from East Pakistan, the issues involved with fis­cal transfer and the like were not settled towards equal sharing between the two wings.

Already by the 1950s, strong biases in economic development had emerged which were blatantly tilted against the eastern wing. For exam­ple, state institutions in the 1950s such as PICIC (Pakistan Industrial Credit and Investment Corporation) and PIFCO (Pakistan Industrial Finance Company) concentrated on industries in West Pakistan.^[128] Similarly, there was a strong anti-East bias through the provisioning of finance and loans for further institutional and infrastructural develop­ment.

As counter to the above, a major accommodation to Bengali sentiment was made in the pronouncement that Urdu and Bengali would share the status of official state language. By the time of the Constitution’s promulgation, political elites in the East were seeking reconciliation with the centre.^[130] They welcomed guarantees for greater representation within the bureaucracy and military being offered at the time.

Lastly, this Constitution declared that Pakistan was an Islamic nation and that within an elapse of six years existing laws would be brought into conformity with the guidance provided by the Quran and Sunnah.^[131] All laws held to be repugnant to the Quran and Sunnah would also be considered to be void. However, the question of repug­nancy and thus voidability was to be addressed within the National Assembly itself. There was not, at this point, a deferral to the courts for making declarations about the correct interpretation or application of what could cumulatively be understood as Shariat.

V