"New" Pakistan's Constitution, 1973

Author(s): G. W. Choudhury
Source: Middle East Journal , Winter, 1974, Vol. 28, No. 1 (Winter, 1974), pp. 10-18
Published by: Middle East Institute

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 "NEW" PAKISTAN'S CONSTITUTION, 1973

G. W. Choudhury

J AKISTAN's search for a stable constitution or a viable political order seems to

Jbe unending. Constitution making in Pakistan began as soon as the country
got its independence in 1947; the process was started by the founder of
Pakistan, Qaid-i-Azam Mohammed Ali Jinnah himself, who became the President
of the first Constituent Assembly in August 1947. The last President of undivided
Pakistan, General Yahya Khan, was reported to be ready to announce a constitution
for a united Pakistan just a few hours before the fall of Dacca to the Indian army
on December 16, 1971. The turbulent political history of Pakistan during its two
decades of existence has been significantly noted for acute and constant tensions
and deadlocks over this process. The couintry had already had three constitutions,
two periods of martial law and numerous constitutional drafts before its dismem-
berment.' Once Pakistan's elder statesman, Sir Mohammed Zafrullah Khan,
lamented: "The problem of a constitution has become a nightmare for Pakistan
-something that is blocking everything of a positive character and giving rise to
the worst form of political rivalry and political jobbery."2 Ultimately it was the
failure of Pakistan to provide a constitution wherein the people of two geographi-
cally separated parts or "wings," as they were termed, could live together as
equal partners in a federal or even a confederal arrangement, which led to its
tragic dismemberment in December 1971.
It was expected that after the separation of its eastern part (Bangladesh),
"New" Pakistan should have no special difficulties or problems in framing a
constitution. But, unlike Bangladesh Pakistan's constitution making in 1972-73
was a complicated task and marked by several acute clashes between the govern-
ment and the opposition parties both inside and outside the Constituent Assembly.
The old and complicated issues faced by constitution makers in Pakistan were
revived: the relationship between the state and religion, i.e. controversy over
details of an "Islamic Constitution"; distribtution of powers between the center
and the provinces; the kind of executive suitable for Pakistan-all these old issues
generated lengthy and heated debates in the country even after its dismemberment,

1. For details see my Constitutional Development in Pakistan (2nd Edition, London, 1970).
2. Pakistan Observer (Dacca), August 30, 1955.

/\ G. W. CHOUDHURY is Visiting Fellow at the Southeast Asian Institute of Columbia Unii-

versity. He is former Professor of Political Science at the University of Dacca.

10

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 "NEW" PAKISTAN'S CONSTITUTION, 1973 11

when unity in truncated Pakistan was vital for its survival. The controversy over
an "Islamic State" -an issue which has a lengthy record behind it3-took a dramatic
turn when the "secular oriented" Bengalis were no longer present in the Con-
stituent Assembly and the orthodox elements in the western part of the country,
though defeated in the general elections of 1970, gathered together to put up a
brave fight to preserve cherished Islamic values and traditions. The defeat by
the Indians and the consequent sense of national humiliation seemed to have given
a fresh vigor to the forces of Islamic tradition in New Pakistan. Rightist groups
were anxious to "protect" properly "the land of the pure" (Pakistan) by ensuring
adequate Islamic provisions in the constitution. Zulfikar Ali Bhutto, who became
both the President of the country and of the Constituent Assembly was, however,
not enthusiastic about rigid Islamic provisions. He did not look with favor on
proposals put forward by the representatives of the tribal groups in North Wes
Frontier Province and Baluchistan for revival of old Islamic custom such as cutting
off the hands of a thief or putting women behind the buirka (veil). Neither could
Bhutto, with his vague slogan of "Islamic Socialism," ignore rightist elements,
particularly at a time when his party had no majority in these two turbulent
provinces of Pakistan. Political agitation and turbulence were rife in those provinces,
so the old issue of state vs. religion was given again serious thought and attention.
Finally, Mr. Bhutto did the same as his predecessors-establish a series of
"Islamic provisions" in the constitution with no or little practical meaning. The
Islamic provisions in Mr. Blhutto's constitution lhave hardly anything new to add
to those in the constitutions of 1956 and in Ayub Khan's constitution of 1962.
The identification with Islam begins, as in the two previous constitutions, with the
preamble: "Whereas the sovereignty over the entire universe belongs to Almighty
Allah alone and the auithority to be exercised by the people of Pakistan within
the limits prescribed by Him is a sacred trust." Reference to "the sovereignty of
Allah" was made in the two previotus constittutions but in order to avoid such
complicated questions stulch as how to determine "limits prescribed" by God, Ayub's
constitution made the text much simpler. The other parts of the preamble are more
or less replicas of earlier versions of 1956 and 1962.4
The Islamic provisions of the constitution are detailed in part IX of the con-
stitution. The most important of these is Article 227-comparable to Article 198
of 1956 and Article 198 of 1962-which lays down: "All existing laws shall be
brought in conformity with the injunctions of Islam as laid down in the Holy
Quran and Sunnah. . .. and no law shall be enacted which is repugnant to injunc-
tions of Islam." While such a provision appears to have far-reaching implications

3. See Binder, Leonard, Religion and Politics in Pakistan (Berkeley, 1961) and Rosenthal,
Erwin I. J., Islam in the Modern National State (Cambridge, England, 1965).
4. See the preamble to The Constitution of the Islamic Reputblic of Pakistan (passed by the
National Assembly of Pakistan on April 10, 1973), Karachi: Pakistan Publications, 1973.

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12 THE MIDDLE EAST JOURNAL

and might be expected to engender radical reforms in legal and social systems in
Pakistan in pursuance thereof, Pakistan has long been accustomed in actual
practice to such high sounding constitutional phrases without any change either in
its legal system or in socio-religious spheres. This has been made possible by the
elaborate and complicated procedure provided in the constitution itself to give effect
to the great implications of such an article. Subsequent sub-clauses of the Article
227, as in the case of the two previous constitutions, are aimed at watering down
any radical changes, if any at all. When Ayub framed his constitution in 1962,
he had a much simpler and perhaps more honest version of this highly contro-
versial article but Ayub was soon forced to introduce amendments to camouflage
the real issue by providing all sorts of high sounding phrases with no practical
meaning. Mr. Bhutto has followed the same path to satisfy the orthodox.
There is again provision for an Islamic Council, borrowed from Ayub's con-
stitution; the Council is another showpiece for public consumption, with no real
power except an advisory role vis-a-vis the legislatures, which may or may not
accept its advice; the legislatures, both central and provincial can act in the public
interest, without waiting for the advice of the Council-exactly similar were the
provisions in Ayub's constitution and nobody during the Ayub era even bothered
to examine the role or the functions of "The Islamic Council." The fate of Mr.
Bhutto's "Islamic Council" is bound to be similar but it will satisfy the public
demand for an "Islamic State" just as Ayub's satisfied the same demand.
There was a more useful body in earlier constitutions-The Islamic Research
Institute. The Research Institute was, at least, engaged in a large-scale program
of study and research under reputed scholars like Dr. I. H. Qureshi or Dr.
Fazlur Rahman. If Islamic ideology is to be a potent factor in the development of
a better society in Pakistan, there is great need for its proper understanding and
appreciation. The Constitutional Commission of 1960-61 recommended the estab-
lishment of an institution to do proper research on Islam which would help in
reconstituting the society on a truly Islamic basis, rather than empty and deceptive
clauses.5
Apart from Part IX of the constitution which is devoted specifically to "Islamic
provisions" there are articles and clauses in the constitution which may also be so
described. Thus, the President of Pakistan must be "a Muslim" (Article 41(2)).
This qualification for the President, which raised great controversy and was
resented by non-Muslim minority groups, notably the Hindus of East Pakistan
(Bangladesh), has been retained in all constitutional drafts and documents; it is,
in a sense, unnecessary because the great bulk of the population is Muslim,
particularly after the secession of East Pakistan, but its retention has been
found necessary to satisfy public demand for an Islamic State. Then there are

5. See the Report of the Constitution Commission 1961, Government of Pakistan, Karachi.

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 "NEW" PAKISTAN'S CONSTITUTION, 1973 13

"principles of policy" which lay emphasis on the Islamic character of the constitu-
tion: "Steps shall be taken to enable the Muslims in Pakistan, individually and
collectively, to order their lives in accordance with the fundamental principles
and basic concepts of Islam. . . ." There are many other similar references to
Islamic ideology. "Principles of policy" are, however, not enforceable in a law
court; they may serve as a guide to the state authorities if they care to accept
guidance. So the framers of the new constitution, like their predecessors in 1956
and 1962, are generous in making proclamations of Islamic ideology in the "prin-
ciples of policy" without risk or difficulty.
One of the main objectives of Pakistan's foreign policy has always been to
foster closer ties, political, diplomatic, cultural, economic and in some cases even
military, with other Muslim countries. This aspect of Pakistan's foreign policy,
which has deep-rooted links in its culture and to its history, has been given
expression in the new constitution just as it was in the earlier ones. Article 40
of the new constitution says "The State shall endeavour to preserve and strengthen
fraternal relations among the Muslim countries based on Islamic unity...
Greater emphasis has been given on promoting unity among the Muslim countries
under this constitution than in any of the previous ones. "New" Pakistan needs
now more than ever the help and support of Muslim countries. Incidentally, it was
during the crisis on Bangladesh and the Indo-Pakistan war of 1971 that Pakistan
got unqualified support, moral, diplomatic and material from her "brotherly Muslim
countries." The closer ties were dramatized by Mr. Bhutto's "journey of renais-
sance" to twenty countries of the Middle East and Africa "to thank them for the
support extended by them to Pakistan during the critical days of 1971" in early
1972.6 Pakistan's most significant links with Iran are, however, based not on
Islamic ideology but on the realpolitik prevailing in South Asia and the Persian
Gulf, particularly in the context of recent Soviet expansionist designs seemingly
in accordance with the traditional Russian interest "in the general direction of
the Persian Gulf."7
Article I of the new constitution designates Pakistan "an Islamic Republic of
Pakistan" as was the case with the 1956 constitution. Ayub, at first, omitted any
reference to Islam in nomenclature of the Republic but soon he was forced to
introduce an amendment in his constitution and he redesignated Pakistan as an
"Islamic Republic."
Under the new constitution "Islam slhall be thle State religion of Pakistan"
(Article 2): This is new, as in none of the previous constitutions was Islam made
the "State religion." The significance and implications of this are yet to be seen.

6. Z. A. Bhutto, Journey of Renaissance, Karachi: Pakistan Publications, 1972.

7. J. C. Hurewitz, Diplomacy in the Near and Middle East, Vol. II, Princeton, 1956,
229-30.

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 14 THE MIDDLE EAST JOURNAL

Parliamentary System

The relationship between the executive and legislature has been a complicating
factor in constitution making. Pakistan began its political career under a parliamen-
tary system modelled on the Westminster variety. But the parliamentary system in
Pakistan was soon converted into a "viceregal" system-the real powers were
exercised by a small elite composed of the top civil servants and subsequently of
army generals.8 The viceregel system was given formal constitutional sanctity in
Ayub's constitution of 1962. Mr. Bhutto's preferences for a viceregal system or
"presidential dictatorship" are well known. When Ayub was engaged in framing
his constitution, he appointed a Constitution Commission in 1960 headed by a
former Chief Justice of Pakistan, the late Justice Mohammed Shahabuddin, a man
of highest integrity. Ayub, however, was put into an embarrassing situation when
his self-appointed Constitution Comnmission recommended a genuine presidential
system and not the one which Ayub had in his mind. Ayub thereupon appointed
a Committee of his Cabinet to give final shape to his constitution. The committee
was headed by his Foreign Minister Manzoor Qader and, significantly, not by his
Law Minister, a Bengali, the late Justice Mohammed Ibrahim. The Report of this
Cabinet Committee is still unpublished, but this writer had the opportunity of
reading its contents while he was a member of the Pakistan Cabinet in 1969-70
and may vouch that Manzoor Qader and Bhutto were the real architects of the
anti-democratic provisions in the constitution of 1962. Though the Report has
never been published, the people are not unaware of Bhutto's r6le. Justice Ibrahim
disclosed the story to many including the present writer, who substantiated
Ibrahim's account by reading the Report itself.
When Bhutto succeeded Yahya Khan, he chose to remain as the "Chief
Martial Law Administrator"-the first "civilian" Martial Law Administrator in
Pakistan. Then, in the interim constitution which was adopted soon after the
emergence of Bangladesh, Bhutto became the President, Prime Minister and
President of the Constituent Assembly. His political opponents, particularly the
chief of the National Awami Party, Wali Khan, accused him of having "dictatori
powers." Mr. Bhutto, according to Wali, wanted both the "21-gun salute" and
the "powers of a Prime Minister."9 Though there was an accord between Mr.
Bhutto's ruling party and opposition groups on the new constitution in October
1972, acute differences soon arose over two issues: powers of the Prime Minister
and the quantum of regional autonomy to be given to the federating units. There
were violent clashes between the ruling and opposition groups on March 23, 1973,

8. See my Democracy in Pakistan (Dacca and Vancouver, 1963).

9. See "Serious difficulties underlie third try at durable constitution" by Michael Hornsby in
The Timnes, London, March 22, 1973.

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 "NEW" PAKISTAN'S CONSTITUTION, 1973 15

which turned out to be "Pakistan Black Friday" when three w

in the National Assembly over the making of the constitution
streets of Rawalpindi.10
Mr. Bhutto wanted to modify the agreed parliamentary system by providing
that a two-thirds majority would be needed to succeed in a no confidence motion
against the Prime Minister with further requirements that his successor be named
in the same motion. Bhutto's Law Minister, M. A. Kasuri, gave categorical
assurances that the new constitution would provide an unqualified parliamentary
system but Bhutto was not in a mood to fulfill his pledge to the opposition groups;
this led to Kasuri's resignation from Bhutto's Cabinet and boycotting of the
Assembly by the opposition parties. Pakistan was drifting towards a constitutional
crisis. Only two weeks before the adoption of the new constitution it was reported:
"Amid increasing turmoil and an opposition boycott, President Z. A. Bhutto is
facing his most serious political crisis since taking over this deeply troubled nation
in December 1971."1l Subsequently Bhutto was successful in arriving at a com-
promise over the modified version of the parliamentary system: a Prime Minister
slhall be elected by the votes of the majority of the total membership of the
National Assembly (Article 91(3)); the real executive authority will be vested
in the Prime Minister as the President "shall act on and in accordance with the
advice of the Prime Minister and such advice shall be binding on him" (Article
48(1 ) ). The parliamentary system in Pakistan's new constitution differs in certain
basic features from the Westminster model as it makes the advice of the Prime
Minister binding by statutory provisions rather than relying on convention as in
the British system, which has been copied in India, Ceylon and older members
of the Commonwealth. As regards vote of no confidence against the Prime Minister,
Pakistan's new system again differs from the Westminster formula by providing
tl1at a resolution for a vote of no confidence will not be passed unless it names the
successor to the Prime Minister (Article 96(2)) and the bill must be passed by
"a majority of the total membership of the National Assembly" and, more signifi-
cantly, the vote of a member belonging to one political party shall be disregarded
if the majority of the party does not support the vote of no confidence. Thus,
there slhall be no scope for any "dissenting or rebel group" inside the ruling party
of Mr. Bhutto for the next ten years. (Article 96(5)).
Blhutto seems to have provided all these safeguards against what he terms
"political instability" which characterized Pakistain during the era of the parlia-
mentary system in 1947-58. Ayub also provided a number of devices against politi-
cal inistability, but ultinmately those safeguards were denounced as attempts to
perpetuate personal rule. Bhutto's political opponents like Wali Khan and Air

10. Far Easternt Econoiiiic Review, April 2, 1973.

1 1. The New, York Timies, March 29, 1973.

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16 THE MIDDLE EAST JOURNAL

Marshal (retired) Asghar Khan have already denounced these provisions as nothing
but clever devices to continue Bhtutto's rule. Whether the quasi-parliamentary
system provided under Bhutto's constitution will have the same fate as Ayub's
quasi-presidential system is yet to be seen. Political happenings in 'New' Pakistan
since Mr. Bhutto has come to power in 1971, however, could give little comfort
to the friends of democracy in Pakistan.

The Center-Provinces Relationship

Of all the issues confronting the framers of the constitution in Pakistan, the most
difficult and complicated one was the relationship between the central authority
and the federating units. It was the most crucial issue in undivided Pakistan.
Sheikh Mujibur Rahman, the present Prime Minister of Bangladesh, presented a
"six-point program" limiting the powers of the central authority to two items
only: Defense and Foreign Affairs (excluding external economic relations) with
no power over taxation or any control over the country's fiscal, monetary or
budgetary policies in 1966. It was nothing but a veiled scheme of secession, and
the Pakistan government's failure to make Mujib modify his extreme demands
led to the tragic events of 1971. It was expected, after these, that demands for
extreme regional autonomy would disappear. But uinfortunately regional tensions
and conflicts marred the constitution making process in Pakistan even after its
dismemberment. There was fear of domination by the Punjabis, who account for
more than 60 per cent of the "New" Pakistan's population of 60 million. The
Punjab was the most developed province in undivided Pakistan and still is, after
the great events of 1971. The "wild West of Pakistan"-the two provinces, Balu-
chistan and the North-West Frontier-are large in area but meager in population
and economically underdeveloped. Like the Bengalis in undivided Pakistan, the
Baluch and the Pathans are anxious to protect their interests by demanding re-
gional autonomy. There are differences among the peoples, traditions, cultures
and languages of the "New" Pakistan as there were in the old.'2
A federal constitution attempts to reconcile the apparently irreconcilable claims
of national sovereignty and state sovereignty. The problem becomes acute when
there is great diversity and lack of lhomogeneity in the peoples constituting a fed-
eral union. Many new countries of the Afro-Asian world, including India, "the
most successful democracy in Asia" have similar, if not greater diversity. There
is no reason why a genuine federal soltution should not be successful in Pakistan.
What is needed and what the previous central governments in Pakistan failed
to generate in East Pakistan is a sense of confidence in the national government

12. Hornsby, The Times, loc. cit.

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 "NEW" PAKISTAN'S CONSTITUTION, 1973 17

and to give the peoples of smaller provinces-Baluchistan, North-

and Sind-adequate shares in the decision making pro2ess at the nati
The federal structure as provided uinder Bhutto's constitution differ
if at all, from the one under Ayub's constittution. There is only on
jects reserved to the federal government. All other matters, inc
powers, are left to the provinces. Such was the arrangement und
stitution: there is a large degree of decentralization in legislative
administrative and financial matters, the center's hold over the pr
tinue as in the previous political orders. The crux of the whole relation
the center and the provinces in Pakistan today lies in the financ
eralism implies an allocation not only of legislative powers but f
ministrative as well. Bhutto had genuine difficulties: regional as
be satisfied but the process of decentralization must not go so f
opportunities for separatist tendencies to grow and flourish. Pakis
a viable national government to combat the danger of disintegratio
West" of Pakistan, there are, at present, internal turbulences wh
to have help from "outside sources." The seizure of the Russian a
through the Iraqi Embassy in Pakistan; the clandestine radio bro
Baghdad on behalf of "greater Baluchistan," Afghanistan's recent
new Afghan President's threat to revive the old issue of "Pakhtu
indicative of Pakistan's strong need for an effective authority at t
with centrifugal forces. Unless taken care of in time and adequate
may lead to disastrous consequences, as the emergence of Bangladesh h
The federal structure as provided in Parts V and VI of the cons
to be fair to both regional aspirations and national needs for securi
Much will depend how the system works in actual practice. The
in the previous constitutions failed in the task of national integrat
tion of East Pakistan has removed the most serious regional challen
nationalism in Pakistan. There are still threats but with wise handl
and political issues there is no reason why a federal solution shou
a failure in Pakistan. An eclipse of democracy and the rise of a p
not responsive to popular control, were the basic factors for the f
systems. Bhutto's political order is, in theory, democratic but som
since he took over power, such as arbitrary dismissal of the two p
ernors in Baluchistan and North-West Frontier provinces and rep
provincial cabinets in those two provinces by his own party men throu
unconstitutional measures, bode ill for future stability and natio
of the new Pakistan. The abiding forces of Islam and the fear of
sion are there and it only needs constructive leadership to forge na
the country. Pakistan's further fragmentation will have far reachi
on the peace and stability in strategically important areas not ver
southern boundaries of the Soviet Union. The Soviet Union, at pr

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18 THE MIDDLE EAST JOURNAL

to be pushing hard with the Asian Collective Security system; Iran and Pakistan
constitute two major obstacles in the Soviet expansionist designs.
Before we conclude our discussion on Pakistan's new political order and its
prospects, we may refer to two significant provisions of the constitution: one re-
lates to the dangers of "abrogation of constitution." Twice the constitution was
abrogated in Pakistan: in 1958 by Ayub Khan and in 1969 by Yahya Khan.
Bhutto seems to be aware of threats from what he terms "Bonapartic influence"
in the Pakistan army. The armed forces of Pakistan, particularly its younger and
dedicated officers, seem to have concern over Mr. Bhutto's lack of political integ-
rity and a credibility gap between his words and performances. He had already
resorted to purging the army on personal rather than any genuine grounds. His
constitution provides elaborate provisions against "high treason" if anybody tries
to abrogate the constitution. But a successful coup, if it occurs, will make the
whole constitution including the Article 6 on high treason for abrogation of the
constitution meaningless. The article, therefore, seems to be of dcubious utility;
it only reflects Mr. Bhutto's personal anxieties for power.
The second significant clause in the constitution is with regard to "province of
East Pakistan" (now Bangladesh); the constitution lays down that it "shall be
appropriately amended so as to enable the people of East Pakistan, as and when
foreign aggression in that province and its effect are eliminated, to be represented
in the affairs of the federation." It again illustrates the wide gap between Mr.
Bhutto's profession and practice. Mr. Bhutto, according to many, played a sig-
nificant role in the split of the country and he is, more than anybody else in
Pakistan, ready to recognize Bangladesh and forget the past; he has already got
a resolution passed by his National Assembly to enable him to grant recognition
to Bangladesh; this may be his honest conviction and a proper step in accordance
with the realities in the subcontinent but, if so, there is no need for such a pro-
vision in the constitution for public consumption only.

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