Name: Musawir Jamal

Roll number: 298

Section: B

Semester: 5th

Exam: Mid Term

Paper: The Constitutional and Political History of Pakistan

College: Khyber Law College University of Peshawar

Q1)

Ans) The Objective Resolution and its Importance in the Constitutional History of Pakistan:-

Objectives Resolution is one of the most important documents in the constitutional

history of Pakistan. It was passed by the first Constituent Assembly on 12th March
1949 under the leadership of Liaquat Ali Khan. The Objectives Resolution is one of
the most important and illuminating documents in the constitutional history of
Pakistan. It laid down the objectives on which the future constitution of the country
was to be based and it proved to be the foundational stone of the constitutional
development in Pakistan. The most significant thing was that it contained the basic
principles of both Islamic political system and Western Democracy. Its importance
can be ascertained from the fact that it served as preamble for the constitution of
1956, 1962 and 1973 and ultimately became the part of the Constitution when the
Eighth Amendment in the Constitution of 1973 was passed in 1985.
Objective Resolution was presented in the Constituent Assembly by Liaquat Ali
Khan on March 7, 1949 and was debated for five days by the members from both the
treasury and opposition benches. The resolution was ultimately passed on March 12.
Following were the main features of the Objectives Resolution:
1. Sovereignty of the entire Universe belongs to Allah alone.

2. Authority should be delegated to the state trough its people under the rules set by Allah.

3. Constitution of Pakistan should be framed by the constituent assembly.

4. State should exercise its powers through the chosen representative.

5. Principal of democracy, freedom, equality, tolerance and social justice,as inshore by Islam should
be followed.
6. Muslims shall alive their lives according the teaching of Quran and Sunnah.

7. Minorities can freely profess and practice their religion.

8. There should be Federal form of Government with the maximum autonomy for the Units.

9. Fundamental rights including equality of status, of opportunity and before law, social, economic
and political justice, and freedom of thought, expression, belief, faith, worship and association,
subject to law and public morality should be given to all the citizens of the state.

10. It would be the duty of the state to safeguard the interests of minorities, backward and depressed
classes.

11. Independent of judiciary should be guaranteed.

12. Integrity of the territory and sovereignty of the country was to be safeguarded.

13. The people of Pakistan may prosper and attain their rightful and honoured place amongst the
nation’s of the world and make their full contribution towards international peace and progress and
happiness of humanity.

Liaquat Ali Khan explained the context of the resolution in his speech delivered in
the Constituent Assembly on March 7, 1949. He termed the passage of the
Objectives Resolution as “the most important occasion in the life of this country,
next in importance only to the achievement of independence.’. He said that we as
Muslim believed that authority vested in Allah Almighty and it should be exercised in
accordance with the standards laid down in Islam. He added that this preamble had
made it clear that the authority would be exercised by the chosen persons; which is
the essence of democracy and it eliminates the dangers of theocracy. It
emphasized on the principles of democracy, freedom, equality, tolerance, and social
justice and it says that these should be part of future constitution.

But when it was debated in the session of the Constituent Assembly, it was opposed
and criticized by minorities’ leaders. A non Muslim, Prem Hari proposed that the
motion should be first circulated for evoking public opinion and should then be
discussed in the house on April 30, 1949. He was supported by Sris Chandra
Chattopadhyaya, who proposed some amendments in the resolution. To him, since
the committee of Fundamental Rights had finalized their report, there was no need
for this resolution to recommend these rights. He added that the Objectives
Resolution was amalgamation of religion and politics; hence it would create
ambiguities with relation to its application in constitutional framework. He wanted
time to study and understand the Objectives Resolution.
While discussing rights of religious minorities, Chandra Mandal opposed the
resolution by saying that ‘why ulemas are insisting on this principle of Islam whereas
India has Pandits but they did not demand things like that. Individual do have religion
but state had not. So we think it a great deviation in our beloved Pakistan.’ Kumar
Datta opposed it by saying that ‘if this resolution came in life of Jinnah it would not
have come in its present form. Let us not do anything which lead our generation to
blind destiny.’ Other Hindu members also proposed some amendments in the
resolution and recommended that some words like ‘…sacred trust”, “…within the
limits prescribed by Him”, and “… as enunciated by Islam” should be omitted. Some
new words should be inserted like “as prescribed by Islam and other religions”, and
“National sovereignty belongs to the people of Pakistan”, etc.

Mian Muhammad Iftikharuddin was the only Muslim member in the house who
opposed the resolution. To him the resolution was vague and many words used in it
do not mean anything. He further suggested that such a resolution should not only
be the product of Muslim League members sitting in the assembly alone. Rather it
was supposed to be the voice of seventy million people of Pakistan.

On the other hand Objectives Resolution was strongly supported by Dr. Ishtiaq
Hussain Qureshi, Maulana Shabbir Ahmad Usmani, Sardar Abdurrab Nishter, Noor
Ahmad, Begam Shaista, Muhammad Hussain and others. In order to counter the
allegations they argued that Islam governs not only our relations with God but also
the activities of the believers in other spheres of life as Islam is complete code of
life.

After a great debate finally the resolution was adopted by the Constituent Assembly
on March 12, 1949. Liaquat Ali Khan assured the minorities that they will get all the
fundamental rights in Pakistan once the constitution based on the Objectives
Resolution will be enforced. However, this resolution created a division on the
communal lines as the Muslim members except for Mian Iftikharuddin voted in favor
of it and the non Muslim opposed it. It created a suspicion in the mind of minorities
against majority. Since, the Resolution has yet not been implemented in Pakistan in
the true spirit, the doubts in the minds of the minorities still exists.

Q2)

Ans) Molvi Tameezud Din Case:-

1. BACKGROUND OF THE CASE:

Right after the emergence of Pakistan, as an independent state, a central legislature,

called as the first Constituent Assembly, was formed which was regulated under the
Government of India Act, 1935. The responsibility and the functions of that Assembly was,
twofold, i.e., firstly making a constitution for the state and secondly to legislate as a
Supreme Legislature of the country. The Assembly comprised of a president and 76
members. There was a Governor General as the Head of the state.

(1) CONVENTION:

According to a convention, which was later on developed as a rule, a bill was to , be

signed by the Governor-General after passing from the assembly, for becoming a
law.

(2) POWER TO DISSOLVE PM:

Moreover, the Governor-General could dissolve any minister, in accordance with the
Article 10 of the Government of India Act, 1935, which he did to the previous Prime
Minister Khawaja Nazimuddin, on March 1953, and then assigned the office of PM to
Muhammad Ali Bogra who was acting at that time as ambassador in U.S.A.
The Prime Minister achieved two amendments in the Constitution which stands
as follow:
(i) He, firstly, added in the Constitution 16th July, 1954, Article 223-A (containing all
type of writs).
(ii) Secondly, he repealed Article 10 in the Constitution, by virtue of which
Governor-General could dissolve the ministers.
Mr. Muhammad Ali Bogra did not get both the enactments sanctioned from the
Governor-General, Malik Ghulam Muhammad. PM did, all this, due to the
apprehension of being dissolved.
But on the other hand, Governor-General observed another method. He dissolved the
whole Assembly on 24th April,1954, claiming that it had become ineffective, because
of the failure in achieving its goal (Constitution making) within a due course of time.
Governor-General used the following words:
“The Constituent Assembly as at present Constituted has lost the confidence of the
people and can no longer function.”

2. FACTS OF THE CASE:

After the dissolution of the Assembly on 24th April, the president of the Assembly, late
Maulvi Tamizuddin Khan challenged the proclamation as unconstitutional, illegal, ultra
vires, without jurisdiction and inoperative.
He asked for a writ of mandamus;
“To restrain the government from interfering with the exercise of his functions as
president of the Assembly.”
And for a writ of quo-warranto with a View:
“To determine, the validity of certain appointments to the Governor-General’s Council
of Ministers.”
The full bench of the Chief Court of Sindh decided unanimously in the favor of Maulvi
Tamizuddin Khan and allowed his writ petition.
An appeal to the Federal Court against the decision of the Sindh Court was filed by
the government. The Federal Court decided the case, by the majority of four to one,
in favor of the Government and rejected Maulvi Tamizuddin Khan’s petition, on 21
March,1955.

3.JUDGMENTS OF THE COURTS:

(1) JUDGMENT OF THE SINDH CHIEF COURT:

The main points in that judgment were as under:

(a) Overruling of the Objections:

Court overruled the objection taken on behalf of the Government that S. 223-A of
Government of India Act, 1935 which invests the Court’s powers to issue writs had not
received the assent of the Governor. General.
It was held that the Indian independence Act, 1935, did not provide that the assent of the
Governor-General was necessary. Interpretation of Article 10:
it was also held that the new Article 10 of the constitution limits the power of the
Governor-General to have his own choice of ministers.

(2) THE FEDERAL COURT JUDGMENT:

The most significant point in the judgment of the Federal Court was that it did not go
into the question whether the Constituent Assembly was rightly dissolved by the
(governor-General. Rather, the following observations were made:

(1) Rejection of the validity of Section 223-A:

They rejected the validity of Section 223-A of the constitution asserting that it had not
yet been received the assent of the Governor-General, so the courts cannot issue any
type of writ.

(2) Governor-General as Constituent Part:

Court further held that the Governor-General is a constituent part of the legislature, by
virtue of the section aforesaid.

4. DISSENTING REMARKS OF JUSTICE CORNELIUS:

Justice A.R. Cornelius wrote a strong dissenting Opinion presenting following reasons:
There is no obligation that all laws made by the Constituent Assembly of a constitutional
nature require the assent of the Governor-General for their validity and operation because:
(a) Our practice demonstrates the denial of allegiance to the British Sovereign, for example,
Muhammad Ali Jinnah refused to take oath as per the British Tradition; and secondly
Governor-General Ghulam Muhammad did not send his assent upon the accession to British
throne of Queen Elizabeth II, as was tradition. Which means we are governing this region in
a different way.
(b) The derivation of the powers of the Constituent Assembly under Section 6(1) of the
Indian Independence Act, 1935 overlooked the fact that it is the creation of supra-legal
power to discharge the supra-legal function of preparing a constitution for Pakistan.
(c) The Constituent Assembly was to be placed above the Governor-General, the
Chief Executive of the state, for two reasons, firstly that the
Constituent Assembly was a sovereign body, and secondly because the statutes
under which the Governor-General was required to function, were within the
competence of Constituent Assembly to amend.
(d) There could be no doubt that neither the British Sovereign nor the
Governor-General, as such was part of the Constituent Assembly

5. CONCLUDING REMARKS:

The leading judgment was that of Chief Justice Muhammad Munir with which three
other judges concurred. This judgment in Tamizuddin Khan’s case paved the way for
future justifications by the judiciary of patently arbitrary, malicious and capricious acts
of the executive on hyper technical grounds of self-serving theories or concepts.

Q3)

Ans) Basic Principal Committee:-

Basic Principle Committee parliamentary committee appointed by the first constituent
assembly of pakistanset up under the provisions of the Indian Independence Act, 1947
for making recommendations for framing the Constitution of Pakistan. With this end in
view, the Constituent Assembly passed a resolution called Objective Resolution in March
1949 defining the aims and objects of the new Constitution.

After passing the Objective Resolution the Constituent Assembly appointed a committee
of all the parties on 12 March 1949 to frame an outline in accordance with the Objective
Resolution on the fundamentals of the future constitution of Pakistan. This committee
consisting of 24 members was known as the Basic Principle Committee (BPC). It was
also authorised to co-opt a maximum of 10 members from persons other than the
members of the Constituent Assembly. The Prime Minister of Pakistan was appointed the
convenor of the BPC. The Basic Principle Committee established 4 sub-committees: (i)
sub-committee to make lists of the fundamental rights of the citizen, (ii) sub-committee to
determine the principles of franchise, (iii) judicial sub-committee, and (iv) sub-committee
to prepare the outline of the federal and provincial Constitution and of distribution of
powers.

The BPC set up a special committee known as Talimaat-i-Islamia consisting of scholars

well versed in Islamic jurisprudence to advise on matters relating to Objective Resolution.
The BPC empowered all of the sub-committees to co-opt a maximum of three technical
experts to give advice, if necessary. The Basic Principle Committee submitted an Interim
Report on 7 September 1950. The Interim Report envisaged a parliamentary system with
a bicameral legislature, consisting of the House of the Units and the House of the People.
In the former, all the units of Pakistan were to have equal representation, while the House
of the People was to be elected on the basis of population. The Committee did not
mention the number of seats in the House of the People. The Interim Report proposed for
the establishment of a strong centre. The President was given the power of proclaiming
an emergency and suspending the constitution. Urdu was recommended as the only
state language.

The Interim Report created much suspicion and opposition in East Bengal. East Bengal
opposed the draft vehemently on the ground that it would lead to domination by West
Pakistanis. Protesting the Interim Report and mobilising public opinion in favour of
establishing provincial autonomy, a group of lawyers, journalists and political workers
formed a Committee of Action of Democratic Federation in October 1950 in Dhaka. The
Democratic Federation organised a provincial convention in Dhaka on 4-5 November
1950. The convention, presided over by Ataur Rahman Khan of Awami Muslim League,
proposed an alternative constitution which recommended a republican form of
government with full autonomy to the provinces. Only foreign affairs, currency and
defence were to be placed under the jurisdiction of the central government. The
convention proposed for a unicameral legislature, the members of which would be
elected on the basis of population. The convention demanded that both Bangla and Urdu
would be the state languages of Pakistan.

These counter constitutional proposals made by the Democratic Federation in the

convention received spontaneous support from the people. A strike was observed on 12
November 1950 demanding the approval of the above constitutional proposals. In view of
the criticism from East Bengal, the final consideration of the Report was postponed and
suggestions were invited from the public on the Interim Report. The Constituent
Assembly then appointed a sub-committee headed by Sardar Abdur Rab Nishtar to
examine the suggestions and criticisms on the Interim Report. The sub-committee made
requisite investigations on the suggestions received, and submitted its report to the
Basic Principle Committee in July 1952. On the basis of this report the BPC prepared its
Second Draft Report for submission to the Constituent Assembly.

The Second Draft Report of the BPC was presented before the Constituent Assembly on
22 December 1952. The Report had the following features: (i) the parliament would
consist of two Houses; the House of Units was to consist of 120 members, 60 of whom
were to be elected from East Bengal. The seats for West Pakistan were allocated thus:
Punjab 27, Sind 8, NWFP 6, Tribal Areas 5, Bahwalpur 4, Baluchistan and Baluch states 4,
Khairpur 2 and Capital Karachi 4. The House of People was to consist of 400 members to
be distributed as follows: East Bengal 200 members to be elected directly, and 200
members were to be directly elected from West Pakistan. (ii) The report proposed that to
elect the head of the state, and in case of a conflict between the two Houses, a simple
majority in a joint sitting of the both Houses would decide the issue. The Second Draft
Report of BPC thus highlighted the principle of parity between the two wings of Pakistan.

The Second Draft Report of BPC met the same adverse reception like the Interim Report.
This time the Punjabis opposed the proposals on the ground that it would establish
Bangali domination. The opposition from the Punjab to the Second Draft Report forced
the Constituent Assembly once more to postpone its deliberation for an indefinite period.
Before the Constituent Assembly could accept the Second Draft Report, the cabinet of
Khwaja Nazimuddin was dismissed (16 April 1953), and Mohammad Ali Chaudhury of
Bogra was appointed the prime minister. As the distribution of seats among the various
provinces in the central legislature made by BPC was unacceptable to East Bengal and
the Punjab, the new Prime Minister emphasized modifying the arrangements of
distribution of seats. He was successful in bringing a compromise between the two
wings of Pakistan by putting before them a new proposal. According to this formula, the
central legislature would be bicameral with equal powers for both Houses. The Upper
House was to consist of 50 seats, of which 10 would be for East Bengal and 40 for West
Pakistan. The Lower House was to have 300 seats of which 165 would be for East Bengal.

The differences between the two Houses were to be settled through a joint sitting, and
the necessary majority in a joint session would have to include thirty percent of the
members of each wing. Thus under this formula, although East Bengal had only ten seats
in the Upper House, parity was maintained in both Houses taken collectively. Provision
was made that in case the two Houses failed to come to an agreement they would be
dissolved by the head of the state.

In the light of Muhammad Ali's formula, the amended report of the BPC was adopted by
the Constituent Assembly on 21 September 1954. This final report was a 80-page long
document. It had 17 parts, the main subjects being the executive, the legislature,
amendment of the constitution, the election process, the judiciary, relations between the
centre and the units, the language of the republic, etc. The final report of the BPC was
then sent to a drafting committee of constitutional experts to make the draft of the
Constitution ready for discussion in the Constituent Assembly to be held on 27 October
1954. But on 24 October 1954, and just before the completion of its work, the Constituent
Assembly was dissolved by the Governor General on the ground that 'the constitutional
machinery has broken down' and the Constituent Assembly 'has lost the confidence of
the people'. Thus with the dissolution of the First Constituent Assembly, the Basic
Principle Committee was automatically abolished. However, the deliberations of the BPC
were of considerable value to the next Constituent Assembly which enacted the
Constitution of Pakistan of 1956.