Constitution Making: The Development of Federalism in Pakistan

Author(s): Craig Baxter

Source: Asian Survey, Vol. 14, No. 12 (Dec., 1974), pp. 1074-1085
Published by: University of California Press
Stable URL: http://www.jstor.org/stable/2643201 .
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CONSTITUTIONMAKING:
THE DEVELOPMENTOF
FEDERALISMIN PAKISTAN
/ CraigBaxter*

Jakistan shall be a FederalRepublicto be knownas the Islamic Re-

publicofPakistan... ." So, in part,readsthefirstarticleoftheConstitution
of 1973. So indeedreadthefirstarticleof theConstitution of 1956,butthe
AyubianConstitution of1962 omitted referencebothto a federation ofPak-
istanand tothenation'sstatusas an Islamicstate(thiswas partlyremedied
by an earlyamendment adding the description"Islamic"). In this short
phrase,containedin each of thetwoconstitutions of Pakistanenactedby
representative bodies,is summedtwoof theprincipalcontroversies of con-
stitutionmakingin thatcountry:federalismvs. a unitarysystemand an
Islamicvs. a secularstate.Boththe 1956 and the 1973 constitutions also
agreeon theparliamentary formof government ratherthanthepresidential
whichwas "enacted"by AyubKhan in 1962. Mere agreementon broad
principlesin 1956 and 1973, however,tendsto obscureboth important
differencesbetweenthe two basic laws and the debate whichled to the
presentrefinement of themeaningof each principle.
The prolongedeightand onehalfyearperiodofindependence beforethe
proclamation ofthe1956 constitution servedto setthetermsof at leastone
oftheprinciples, thatofan Islamicstate,so thatfurther debatewas notex-
tensiveduring1972 and 1973. On thetwobasic elements therewas substan-
tialdisagreement. However,themoststrenuous battlewas overtheextentof
thepowersof theprovincesand of thefederation. In a nationwhichwas
framinga newconstitution immediately aftertheloss of one provinceon
thequestionofprovincialautonomy thecontinuation ofthisdebatewas one
ofgreatconcernto thepresident and his associates.
FEDERALISM
Provincialautonomyand federalismhave been politicalcatchwordsin
thesub-continent forthebetterpartof thiscentury.Bhuttoelaboratedon
thisin a long addressto thenationon March29, 1973. He said, in part,
"Autonomy has beentheproblemfromthebeginning, sincethedayswhen

*The views expressedhereinare those of the writerand not of the U.S. Department
of State or the ForeignService.
1074
CRAIG BAXTER 1075

theBritishcame intothesubcontinent." He describedthereforms of 1919

and 1935 and wenton to say, "Even theconceptof Pakistanis based on
autonomy," referring to thedemandof theMuslimsof thesub-continent to
be freefromthedomination of a Hindu-controlled centralgovernment. He
also notedthat"ourtragicdivisionbetweenEast andWestPakistanwas over
autonomy."The subjectof provincialautonomyand federalism, therefore,
deservesmoreattention herethaneitherthenatureofan Islamicstateor the
groundrulesof thenewparliamentary system.
Federalsystems, in broad definition, are two-tier governments in which
thepowersofthefederaland of theprovincialor statelevelsare definedin
a constitutional document. The moresuccessful examplesare thosein which
independent unitsfederate voluntarily-asin theUnitedStates,Switzerland
and Australia-ina yieldingofsome,butnotall,powersto a centralgovern-
mentoverarching theconstituents. In mostcasesthepowerscededareclearly
indicatedand thosenotassignedto thecentralgovernment are specifically
reserved forthefederating units.A keyto successis thatthefederalgovern-
mentobtainsfinancialand administrative capabilitieswithwhichto carry
outtheresponsibilities assignedto it.
The case offederalism in BritishIndia is in diametricoppositionto those
ofthetypedescribedabove.Ratherthanindependent unitscomingtogether
and cedingpowersto a federalgovernment, in India an all powerful central
government devolvedpowerson subordinate provincialunits.In noneofthe
basic laws (1919, 1935, 1950 forIndia and 1956 and 1973 forPakistan)
didtheprovincial unitsas suchcombinetocedepowerto thecenter.Devolu-
tionofpowertoprovincialgovernments was a deliberate policyoftheBritish
in implementing (or delayingimplementation, dependingupon one's point
ofview) thedeclaration by SecretaryofStateMontaguin 1917 thatBritish
policywas "the increasingassociationof Indians in everybranchof ad-
ministration and thegradualdevelopment ofself-governing institutionswith
a viewto theprogressive realizationof responsible government in India as
an integralpartof theBritishEmpire."The keywordsare "gradual" and
"progressive" andMontaguaddedthat"thispolicycan onlybe achievedby
successivestages."The dyarchical systemofthe1919 Actand theprovincial
autonomy of the1935 Act were "successive stages."Representative provin.
cial bodieswereconsulted bytheSimonCommission and otherofficial bodies
createdto studyIndianaffairs priorto thepassingofthe1935 Actand their
viewsweregivenconsideration, butit wouldnotbe correctto suggestthat
voluntary associationwas partof the1935 package.
By Section5, theActof 1935 providedforthesettingup of whatis called
a "federation ofIndia,"butthiswas neverimplemented as therequirement
of theaccessionof a specifiednumberof princelystateswas notmet.Thus
thecentralgovernment levelin India continuedto operateundertheAct of
1919 untilpowerwas transferred in 1947. At theprovinciallevel,however,
substantial changesweremade immediately upon thecomingintoforceof
theAct.Nonetheless, onlya cursorylook at theAct is requiredto see that
1076 CONSTITUTION MAKING

thepowers,describedas "provincialautonomy," werecloselycircumscribed

by thewordingofthelaw notwithstanding thefactthatthelimitingpowers
wereseldomused.Amongthepowersheldjointlyor separately by thegov-
ernorgeneraland theprovincialgovernors werethesafeguarding of thefi-
nancialstandingofthegovernment, theprotection ofminorities, thepreven-
tion of seriousdisturbanceto law and orderand the assumptionof full
authority shouldtheconstitutional machinery of theprovincebreakdown
(as it did when the Congress Party ministries resignedin sevenprovincesin
1939). The delineationof powerbetweenthecentraland provinciallevels
wascontainedin theSeventhScheduleoftheAct,whichdisplayedconsider-
able ingenuity in attempting to catalogall conceivableareas of government
and to separatetheseinto"federal,""provincial"and "concurrent" lists.
The thirdcategorycontained thepotential of between
conflict the two levels
of government. This listing(e.g., marriageand divorce,printingpresses,
tradedisputes,quarantine)includesmatterswhichgenerallyrelateto pro-
vincialor local issues,buton whichregulation whichis uniform fromprov-
inceto provinceis desirable.The Actprovidedthatprovincialgovernments
couldlegislatein thesefieldsbutlegislationcouldnotbe in conflict withpre-
viouslypassedfederallaw and subsequently passedfederallaw wouldsuper-
cedeanyportionofprovinciallaw withwhichit disagreed.Although theAct
attempted to maketheprovisionsclearit was evidentthattheFederalCourt
wouldbecomeinvolvedin determining theextent,if any,of repugnancy or
supercession, had thefederalportions of the Act come into force. In what
seemsto havebeen a recognition thedrafters
of fallibility, of theActnoted
thatthelistsmightnotincludeeverything andleftit to thegovernor general,
in his discretion,to assign"any matternotenumerated" to one or theother
of thelevelsofgovernment (Section104).
Withthefailureof theCabinetMissionplan of 1946 forthetransfer of
powerto a singlesuccessorgovernment in thesub-continent, it was onlypos-
sibleforthetransfer to be made to twosuccessorsto theCrown.As noted
earliertheCabinetMissionplan mighthave led to a processby whichthe
"federating" provincesand stateswouldhave determined a portionof the
powersofthecentralgovernment. Undertheplan (paragraph15) theunion
government wouldhave thepowerto deal withforeignaffairs, defenseand
communications and "the Powersnecessaryto raise the financesrequired
fortheabovesubjects."It wouldalsohavean executive to carryoutdecisions
and to implement law enactedby theunionlegislature. The paragraphwent
on to say that"all subjectsotherthantheunionsubjectsand all residuary
powersshallvestin theprovinces"butimpliedthatit wouldbe possiblefor
theprovincesto cede additionalpowersto the union government and ar-
rangedtheprovincesintosections(or "zones") whichwouldcreatezonal
governments whosepowerswouldbe thoseceded by theprovincesin each
zone (paragraph18). The CabinetMissionplanfailedfora numberof rea-
sonswhichneednotbe discussedhere.Althoughtherewas somediscussion
ofa transfer ofpowerto individualprovincialgovernments thiswas clearly
CRAIG BAXTER 1077

impracticaland powerwas transferred to twoseparatecentralgovernments

as representedby a constituentassemblyand headedin theexecutiveby a
governor general.Thus,in bothIndia and Pakistanfederalor unionsystems
wouldbe paramount andthepowersoftheprovinces wouldbe devolvedfrom
thecenterto thesubordinate level.The IndianConstitution of 1950 and the
Pakistaniof 1956 wouldfollowthepatternof theAct of 1935 and notthe
principleoffederatingunitscomingtogether. Bothof thenewconstitutions
containedlistingsof federal(or union), provincial(or state) and concur-
powersandin eachcase thedelineation
rentlegislative followedsubstantially
thatgivenin 1935 and containedessentiallythe same circumscriptions as
thatAct.
FEDERALISM AS AN ELECTION ISSUE
The abrogationof the 1956 constitution in Pakistanby a military-cum-
presidentialcoup in 1958 and theeventual"enactment" by AyubKhan of a
strongpresidential constitution in 1962 endedforthetimebeingthefederal
natureof thepoliticalsystemof Pakistan.The impotenceof thelegislative
bodiesat thecentraland provinciallevels,thelack of opportunity fordirect
politicalparticipation, dissatisfactionin East Pakistanwitheconomicdis-
parityand in WestPakistanwithOne Unit' and theremoteness of decision
makingwereamongthefactorswhichled tothedownfalloftheAyubregime
in 1969 and itsreplacement witha martiallaw administration underYahya
Khan.In themovement againstAyuba frequent call was fordirectelections
and a returnto a parliamentary regime.
Yahya movedwithsomedispatchto meetthedemandsof thosewho op-
posedAyub.He announced-although thisis notuntypical ofa newmilitary
regime-thathe consideredhimselfa caretakerwhowouldas soon as pos-
sibleascertaintheviewsof thepeoplethroughelections.He endedtheOne
Unit systemin West Pakistanand restoredthe formerprovincesof the
Punjab, Sind,theNorthwest Frontierand Baluchistan,addingto each the
contiguous areaswhichhad beenseparatepriorto 1955.He endedtheparity
in parliamentary representation betweenthetwo wingswhichhad been a
featureofboththe1956 and 1962 constitutions and placedmembership in
thefuture NationalAssemblyon a populationbasis,givingEast Pakistana
majorityoftheseats.Furthermore, Yahya in a wellreasonedif notentirely
accepteddocument, theLegal Framework Order,set downhis viewson a
future constitution.In paragraph20 (4) he expressedsupportformaximum
provincialautonomy and notedthecentralgovernment's in
"responsibilities
relationtoexternal andinternal andtopreservetheindependence
affairs and
territorial
integrity ofthecountry." Takinga leaffromtheCabinetMission
plan,he added that"the Federal Government shall have adequatepowers
'One Unit-the fusionof the provincesand otherunits of the westernwing of Paki-
stan into a single provinceof West Pakistan-occurred in 1955 as a prelude to the
Constitutionof 1956. The action was not a popular one and was accepted only with
considerablepressurefromthe center.See G. W. Choudhury,Democracy in Pakistan,
Dacca, Green Book House, 1963,pp. 60-64,fora briefsummaryof the political activity
surroundingthe impositionof One Unit.
1078 CONSTITUTION MAKING

and financialpowersto dischargeits

includinglegislative,administrative
responsibilities.
"2
The partywhichenteredtheelectionwithviewsmoststrongly opposedto
Yahya's was theAwamiLeague. It advocatedcompleteautonomyforthe
provinces, beingtheprerogatives
withonlydefenseand foreignaffairs ofthe
federalgovernment and withall powersof taxationbeingreservedto the
provinces.These were expressedin the Six Points announcedby Sheikh
MujiburRahmanat a meetingof oppositionleadersin Lahore in 1966.3
Forreasonswhichneedno description orexplanationheretheAwamiLeague
makingprocessin Pakistanin 1972 and
was notinvolvedin theconstitution
1973.4
It is, however,oftenoverlookedthattheNationalAwamiParty (NAP)
heldviewson thedegreeofprovincialautonomy whichwerealmostidentical
withthoseoftheAwamiLeague.The NAP in East Pakistanwas an offshoot
of theAwamiLeague,whilein WestPakistanit was an agglomeration of
regionally orientedgroupsin theFrontier, Baluchistanand Sind graftedon
to theAzad PakistanParty,a leftistpartyled by Mian Iftikharuddin and
Mian MahmudAli Qasuri.The 1970 electionplatform of thefactionof the
NAP led by Kahn AbdulWali Khan called for"completeprovincialauton-
omy,leavingonlythreesubjects,namely,defence,foreignaffairsand cur-
rency,withthecenter."5The NAP (Wali faction) polled stronglyin the
Frontierand Baluchistan,winninga pluralityof the provincialassembly
seatsin each province.It was able, in coalitionwiththeJamiat-ul-Ulema-i-
Islam (Hazarvigroup) (JUI), to formgovernments in bothprovinces.
The threedistinctfactionsof theMuslimLeague held varyingviewson
center-provincial relations.That headed by Khan Abdul QayyumKhan,
whojoinedtheBhuttocabinetas HomeMinister,advocateda strongcenter
to "safeguardthecountry'ssolidarityand economicstability."The faction
whichwas a successorto thatled by AyubKhan favoreda "strongcenterin
additionto a guaranteeof fullautonomy to theprovinces,"an unexplained
contradition in terms.The CouncilMuslimLeague,headedby Mian Mum-
taz MuhammadKhan Daultana (currently Pakistan'sAmbassadorin Lon-
don) agreedwiththestandof theAwamiLeague and theNAP witha re-
stricted centralgovernment and "fullautonomy"fortheprovinces.6
The positionof thePeople'sPartyof Pakistan(PPP) is moredifficult to
determine. The partymanifestostatesthatthe PPP favorsa democratic,
parliamentary, federalsystembut does not enterinto a discussionof the
divisionof powersbetweenthetwolevelsof government. A partytheoreti-

'See David Dunbar, "Pakistan: The Failure of Political Negotiations,"Asian Survey,

12:5 (May 1972), pp. 444461, especially pp. 445-447.
8See ibid., and M. Rashiduzzaman,"The Awami League in the Political Development
of Pakistan," Asian Survey,10:7 (July 1970), pp. 574-587.
'Mujib's de facto rejectionof the Legal FrameworkOrder was later followedby his
determination to use his majorityto framea constitutionbased on the Six Points. See
Dunbar,op. cit.
'Pakistan Affairs,23:11 (June 30, 1970), pp. 3-4.
Ibid.
CRAIG BAXTER 1079

cian, J. A. Rahim,is littlemoreexplicitin a pamphletentitled"Outlineof

a FederalConstitution forPakistan,"otherthanproposinga bicamerallegis-
laturein whichone housewouldbe representative of theprovincesand the
otherof thepeople.However,Bhuttoin his initialaddressto theNational
Assemblyon April 14, 1972, said, "The People's Partyrejectedthe Six
Points. . . itwas indeeda uniqueconstitutionalproposal. .. We,too,stood
formaximumprovincialautonomy, but at the same timedesireda viable
center."The presidentnotedthattherewas "a thinline indeed between
maximumautonomy and secession."He seemedto favortheabortive1954
constitutional draftwhich"wouldhavereflected therealitiesofthesituation
betweentheeast and westwings"and "proposeda federalstructure." The
1954 draft, whichwas abandonedafterthedissolution oftheFirstConstitu-
ent Assemblyby GovernorGeneralGhulamMuhammad(an actionlater
held ultra vires), wouldhave provideda parliamentary, bicameralsystem
butwitha largermeasureofpowerto thepresident thanhas beenprovided
in the1973document.
FEDERALISM IN THE ASSEMBLY AND IN THE CONSTITUTION

Threedaysfollowing Bhutto'saddress,theNationalAssemblypassed an
"interimconstitution" whichcame intoforceon April21, 1972. The tem-
porarydocument was describedas beingbased on theGovernment of India
Act of 1935 and theIndia IndependenceAct of 1947 with"consequential
amendments." Theselatterweremainlythosepertaining to theIslamicna-
tureof thestate.The objectivesresolution, passedin 1949 and includedin
theconstitutions of 1956 and 1973,was prefixedas wellto theinterimcon-
stitution.
Coincident withthenewconstitution's comingintoforce,martial
law whichhad beenproclaimed byYahya Khan on his assumption ofpower
onMarch25, 1969was discontinued. Emergency powers,however, remained
in force.On May 1, new governorswereappointedin the provincesand
ministries enjoyingthe confidenceof the majorityof the membersof the
provincialassembliestookoffice.7 Bhuttoacceptedthedemandof theNAP
thatgovernors shouldbe appointedfromtheprovincialmajoritypartyand
designated NAP members to fillthosepostsin theFrontierand Baluchistan.
In his March29, 1973 address,thepresidentsaid thatthiswas unique in
thehistory ofthosenationsfollowing Britishcustom.Whenhe dismissedthe
twogovernors on February15, 1973,he said in thelettersof dismissalthat
"a governor undertheconstitution holdsofficeduringthepresident's pleasure
and is his agentin theprovince."8The dismissalsfollowedthestrangein-
cidentofthearmscachefoundin theIraqi Embassyand theallegationsof a
"LondonPlan" forthefurther dismemberment of Pakistan.9
7A "presidential" (viceregal) systemat the center and responsibleministriesin the
provinceswas in accord withthe Act of 1935. The ministersappointedat the center (by
the Viceroy and by Bhutto) were responsible to the chief executive and were his
advisers.
8This also followsfromthe Act of 1935 (Section 56).
'See HerbertFeldman,"Pakistan-1973," Asian Survey,14:2 (February1974), p. 137.
1080 CONSTITUTION MAKING

A constitution committee was appointedfromamongthemembersof the

NationalAssembly underthechairmanship ofLaw MinisterQasuriand rep-
resenting all partiesin theAssembly.The tripartite agreement amongthe
PPP, NAP and JUI evidentin thearrangements forgubernatorial appoint-
mentswas continued in the Assembly. The Qayyum factionof the Muslim
Leaguewas in coalitionwiththePPP and theotherpartiesseemedreadyto
go forward rapidlywiththedrafting ofthebasic law. On October20, it was
announcedthatall partieshad agreedon theframework of theconstitution,
theannouncement beingmadebythenewLaw Minister AbdulHafizPirzada,
who had replacedQasuri undercircumstances whichwill be notedbelow.
The basic elementsof thisagreement wouldbe includedin the approved
constitution butmuchlastminutehagglingwouldprecedethefinalvote.
In thedivisionof legislativepowersamongthecenterand theprovinces
an important symbolicmovetoward"maximum"provincialautonomywas
made.The listsgivenin theFourthSchedulecontainonlyenumerations of
federaland of concurrent powers,whileby Article142(c) "a Provincial
Assemblyshall,and Parliamentshall not,have powerto make laws with
respectto anymatternotenumerated in eithertheFederalLegislativeList
or theConcurrent LegislativeList."This implements theagreement of Octo-
ber20 in whichit was stipulatedthatresiduarypowerswouldbe vestedin
theprovinces.10 Whilebothfederaland provinciallegislatures may act on
thesubjectsin theconcurrent listthefederallaw willtakeprecedencein the
eventofconflict(Article143). The twolistsare themselves each dividedinto
two parts.The firstpart lists mattersgenerallyconcernedwithdefense,
foreign affairs and financialsubjectswhichare tobe considered bythepopu-
larlyelectedNationalAssembly,and any law resultingis subjectonlyto
temporary suspensionby theSenate (see below). Those subjectsgivenin
Part II are moregeneralmatters, such as railwaysand industrialdevelop-
ment,on whichnationalstandardsare desirableand forwhichtheNational
Assemblyand theSenatehave equal legislativepowerswithdifferences be-
ing resolved at a jointsitting.The federal listitselfgoes somewhat beyond
thenarrowconfinesof "defense,foreignaffairsand currency"desiredby
theNAP andsomeotherpartiesand includesmatters whichmight, in Ameri-
can terms,be includedundertherubricof interstate commerce, and others
whichcarryout theLegal FrameworkOrderdesignof adequate financial
and administrative powers.In thislatterconnection, Article149 provides
thattheexecutiveauthority of theFederationmayinstruct thesimilarau-
thority in theprovincesto perform functions to carryoutfederallaw.
A federalsystemin Pakistanis at once a difficult deviceand a potential
forunification aroundthosesymbolsand withinthoseareas of government
whichcan mostefficiently be carriedout by a centraladministration. The
compromises spelled out in the finaldocument were,undoubtedly, not re-
sponsivefullyto the demandsof all parties-some at one extremewould
10TheGovernment of 1950andthe
of IndiaActof 1935,theIndianConstitution
Pakistani Constitutionof 1956 all containedthreelists, adding provincial (or State, in
tothetwolistsgivenin thepresent
India)subjects ofPakistan.
Constitution
CRAIG BAXTER 1081

have favoredtheabolitionof provincesand a unitarysystem, whileothers

mightpreferan evenlooserconfederal form.The lattercouldpossiblyhave
serveda physically dividedPakistan,but after1971 theinterdependence of
theprovinces, if onlyin geographiccontiguity,requiredthatsomepowers
be held by a centralgovernment beyondthe threesubjectslistedby the
AwamiLeague and the NAP. An exampleis thatof railways,a situation
recognizedas earlyas the1935 Actwhena FederalRailwayAuthority was
establishedwithpowersover means of interprovincial transportbeyond
simplyrailways.The reservation of a widerangeofpowersto theprovinces
in the 1973 constitutionshouldgive Pakistanthe opportunity to exercise
that"unityin diversity" ofwhichNehruspokeso frequently withregardto
India. The questionis: willtheopportunitybe taken?
PARLIAMENTARY GOVERNMENT AND BICAMERALISM

Relatedto federalism is the provisionin the constitution for an upper

house of Parliament, theSenate.In thishouse the fourprovinceswill be
represented equally,initiallyby tenmemberseach and, followingthefirst
generalelectionunderthe new constitution, by fourteen. These members
willbe chosenbya systemofproportional representationby themembersof
theprovincialassemblies.Theywillbe joinedby three(laterfive)members
fromthefederally administered tribalareasandbytwo(nottobe increased)
fromthefederalcapitalterritory ofIslamabad.The powersoftheSenateare
limited,as notedabove,as it willhave thepowerto initiatelegislationonly
on thosesubjectsgivenin thesecondpartofthefederaland concurrent lists,
willhave onlytemporary powerto suspend,and notdefeat,bills,and will
nottakepartin votesof confidence. The Senate,however,is notsubjectto
dissolution(halfof themembership will retireeverytwoyears,theterms
beingset at fouryears), and could,in a changingpoliticalsituation,be a
bastionofa decliningpoliticalparty.The never-enacted draft
constitutional
of 1954,whichwas commended by Bhuttoin his April14, 1972 speech,in-
cludeda provisionforan upperhouse,and therewas littledisagreement on
theproposalmadein 1972.
The lower,popularlyelectedhouse,the NationalAssembly,will, as in
mostsystems derivedfromtheBritishexample,be thebodywiththegreatest
powers,bothlegislativeand supportive oftheprimeminister and hiscabinet
The existingNationalAssemblywillcontinuein office untilApril14, 1977,
unlesssoonerdissolved,a datefiveyearsafterits firstmeeting(it had been
electedin December1970,butwas notsummoned by Yahya Khan). At the
firstelectionunderthenewconstitution, its membership will be expanded
fromitspresent 14711to 210, ofwhom200 willbe electedfromsinglemem-
berconstituencies delimited accordingto populationand tenwillbe women

'1The presentassemblyincludes thoseelected fromWest Pakistan in December 1970,

of East Pakistanwho chose to join the Islamabad Na-
togetherwiththreerepresentatives
tional Assembly.
1082 CONSTITUTION MAKING

electedindirectly by thosewho had been electedfromterritorial constitu-

encies,votingseparately by province.12
The legislativepowersoftheNationalAssembly arespecified in twoways.
Article70 givesthebodytheexclusiverightto initiatelegislationin thefirst
partof thetwolegislativelists.A bill passed by theNationalAssemblyis
transmitted to theSenatewhichmayactwithin90 daysto pass thebill,with
or without amendment, or to rejectit. If it is passedby theSenate,or if the
Senatefailsto act within90 days,thebill is presented to thepresidentfor
his assentand it becomeslaw. ShouldtheSenateamendor rejectthebill,
theNationalAssemblymaypass thebill again, acceptingor rejectingany
amendments as it sees fit,and withthesecondpassingthebill is presented
to thepresident forassentand becomeslaw. Thus thepowersof theSenate
on PartI billsis limitedto a ninetydaydelay,withor without thesuggestion
of amendments. Bills underPart II maybe introducedin eitherhouse. If
theversionspassedbythetwohousesdiffer, a jointsessionmaybe heldand
theresultofthatmeeting shallbe presented to thepresident forhis assent.
Thesecondconstitutional divisionofpowerbetweenthetwohousesis con-
tainedin Article73. It statesthat"notwithstanding anything containedin
Article70 or Article71" (thetwoarticlesdescribedin theprecedingpara-
graph),"a moneybill shalloriginatein theNationalAssemblyand afterit
has beenpassedby theAssemblyit shall,withoutbeingtransmitted to the
Senate,be presentedto thePresidentforassent."Thus the Senatehas no
powerswithregardto moneybills,whether theyoriginateunderPartI or II
of thelegislativelists.On thematterof presidential assent,theconstitution
leavesno roomforpresidential refusalor veto.Article75 statesclearlythat
thepresident "shallassent"withinsevendays and if he does notdo so "he
shallbe deemedto haveassented."
The constitution does notprovidefortheestablishment of severalof the
standing committees whichare commonto nationsfollowing theBritishpat.
tern.This was one of thesubjectscontainedin therejoinderof theUnited
DemocraticFront(UDF) on April9, 1973,to Bhutto'saide memoiron his
discussionswithoppositionleaders,issued on April4. The committees re-
ferredto by theUDF apparently weretheCommittee on Estimatesand the
Committee on Public Accounts.It wouldseemthattheUDF did not study
carefully theconstitution of neighboring India nor did it look at Article67
of thenewconstitution of Pakistan. Both documentsstatethatParliament
shallmakerulesfortheconductof itsbusiness,and it is underthisgeneral
provisionthattheIndianparliament(Article118 of 1950) createdthetwo
committees and anotherwithpowerto look at publicundertakings, as sub-
ject also of theUDF rejoinder.The UDF demandthattreatiesand other
documents be laid on thetableofthehouseseemsalso tobe withinthescope
of Article67 andin a parliamentary system wouldbe expectedtobe followed.

12Women,ofcourse,mightalso contest theterritorial The reservation

constituencies.
is limitedto tenyearsorto thesecondassemblychosenunderthe1973constitution.
CRAIG BAXTER 1083

PRESIDENTIAL OR PARLIAMENTARYSYSTEM

Havingdescribedthepowersof thelegislatures underthenew constitu-

tion,it is necessaryto go back and look at one of themostcontroversial of
theprovisionsof the document:thespecial protection givento theprime
minister(and totheprovincial chiefministers).Thiscan bestbe introduced
by quotingfromBhutto'slong addresson March29, 1973. The thenpresi-
dentsaid: "I wanteda presidential systemand they[theoppositionleaders
duringthenegotiations leadingtotheOctoberagreement] said we willnever
havea presidential system.I said all right.... Thentheysaid we willhave
a systemofparliamentary democracy wherethepowerslies withtheprime
minister. I said all right.Theysaid thattheprimeministercannotbe re-
movedundercertaincircumstances. I said all right,I acceptyourformula.
Nowtheygo back and say thepresident musthavecertainpowers."'13
Bhuttostatedthathe preferred thepresidential system, althoughthePPP
Manifestocalled for a federal,parliamentary system. The controversy in-
volvednotonlytheoppositionbut also leadingmembersof his ownparty,
and led to theresignation of Law MinisterQasuri priorto theOctober20
agreement amongtheparties.In a letterthefollowing day,Qasuriwroteto
Bhuttothatthepeopleare "waitingto hear fromyou on reiteration of the
pledge to introduce a federal parliamentary form of government which
clearlyimpliesthattheexecutiveis answerableto thelegislature, theexecu-
tivepowervestsin thePrimeMinisterand his Cabinetand wheretheexecu-
tiveis also removableby the legislature."'4Followingthe Octoberagree-
ment,Qasuricriticizedthespecialprotection givento theprimeminister.'5
The agreement, which called for a federal parliamentary systemand gave
all executive powersto theprimeminister, said thatfora periodof fifteen
yearsa voteofno confidence wouldnotbe carriedagainsttheprimeminister
unlesstwo-thirds of thetotalmembership of theNationalAssemblyvoted
forthemotion.16 The oppositionsoonrepentedofits agreement to thispro-
visionand thefinaldocument containsa different formula,acceptedappar-
entlyat informal consultations betweenthePPP and theNAP duringJanu-
ary.On January3, Bhuttoin a speechin Karachisaid the oppositionwas
tryingto "wiggle"out of theagreement, threatened a unilateralPPP con-
stitution,but agreedto further meetings, whichwereheld.
The primeminister(or chiefminister)is to be electedby a majorityof
thetotalmembership of theassembly.He maybe removedby a voteof no
confidence. However,a motionofno confidence mustincludewithinthetext
thenameof a successor.Such a motionmayalso notbe movedduringthe
periodin whichtheassemblyis considering thebudgetand,if a motionis
unsuccessful, anothermotioncannotbe movedfor six months.The two-
thirdsprovisionwas droppedbutin its place was put: ". . . fora periodof
"8Thisand otherquotationsare fromthe transcriptof the address carried in FBIS,
April 2 and 3, 1973.
"Dawn, October 8, 1972.
"Dawn, December 2, 1972.
"The text of the agreementis in Dawn, October 21, 1972.
1084 CONSTITUTION MAKING

tenyearsfromthecommencing day or theholdingof thesecondgeneral

election,whichever occurslater,thevoteofa member, electedtotheNational
Assembly as a candidateor nomineeof a politicalparty,castin supportofa
resolution fora voteofno confidence shallbe disregarded ifthemajorityof
themembersof thatpoliticalpartyin theNationalAssemblyhas cast its
votesagainstthepassingof such resolution"[Article96 (5) ]. The prime
minister is thusprovidedsecurityagainstminordissidencewithinhis own
partyand his coalitionpartners, if any,by the clause just quoted and is
safefromwillynillymotionsby theoppositionwhomustagreefirmly on a
successorbeforemovinga resolution. It is notan importfromWestminster
by anymeans,butthepartiesof Pakistanare notas institutionalized or as
disciplined as thosein Britain,noris therea strongtwopartysystemwhich
can providea shadowcabinetpreparedto take overtheadministration at
shortnotice.
The powersofthepresident are minimal.He is electedby a jointsession
ofParliamentand holdsoffice forfiveyears.Thereis no vicepresidentand
a vacancyin theoffice is tobe filledbya newelection.The keyto his powers
are in Article48: "In theperformance thePresidentshall
of his functions,
act on and in accordancewiththeadviceofthePrimeMinisterand suchad.
vice shallbe bindingon him." The clear intentof the constitution is that
thereis no area in whichthepresident actsin his owndiscretion.
ISLAMIC PROVISIONS

In his March29 address,Bhuttosaid thatthe Islamic provisionswere

stronger thanthosecontainedin the1956 constitution. The republic,as in
1956,is again denominated the"IslamicRepublicof Pakistan,"butforthe
firsttimeIslam is madethestatereligion(Article2). Amongthedirective
principles,whichare not enforceable in thecourtsbut whichare to serve
as a guide to legislation,is one whichstatesthat"stepsshall be takento
enabletheMuslimsofPakistan,individually and collectively,to ordertheir
livesin accordancewiththefundamental principlesand basic conceptsof
Islam" (Article31), and anotherwhichenjoins cooperationwith other
Muslimnations(Article40). A manifestation of thelatterwas seen in the
Lahoreconference oftheheads ofMuslimstatesin February,1974, a meet.
ingwhichalso resultedin Pakistanirecognition of Bangladesh.
describedIslamicprovisionsof theconstitution
The specifically are con-
tainedin PartIX. Although thereare somevariationsfromthosecontained
in the1956 and 1962 constitutions, theeffectis likelyto be similar.It is
statedthatall lawsshallbe broughtintoaccordwiththeQuranand Sunnah
and thatno newlaws shallbe passedwhichare repugnant to them.At the
same time the personal law of non-Muslims is to be preserved. An Islamic
Councilis to be set up withthemembership drawnfrom"personshaving
knowledgeof theprinciplesand philosophyof Islam . . . or understanding
of theeconomic,political,legal or administrative problemsof Pakistan."'7
Article201 (2).
"A similarstatementwas containedin the 1962 Constitution,
CRAIG BAXTER 1085

In otherwords,theCouncilis notto be populatedsolelyby mullahsbut is

to includeas wellpersonswhohave experiencein government. The repre-
sentation is furtherdefinedas containingmembers from"variousschoolsof
thought"in Islam,memberswhohave servedat thehighestjudicial levels
(one of whomis to be chairman)and at least one femalemember,an in-
novationto saytheleast (Article228). The functions oftheCouncilare ad-
visory.Shouldthepresident, a governoror 40%oof themembership of the
NationalAssembly, theSenateora provincialassemblyso request,theCoun-
cil is toadvisetherequester as totheadherenceofa law,proposedor already
enacted,to theinjunctionsof Islam.The requestermay or maynotaccept
theadvice,althoughpublicopinionmightwellmakerejectiondifficult and,
hence,reference infrequent.The Councilis also to studyexistinglaw and
report,withinsevenyears,on theconformity of thatlaw withIslam. Again
the legislatures shall considerthe reportsbut no legislativeactionis spe-
cificallyrequired.
Pakistanis notin thestrictest sensean Islamic state,as the opposition
leadersimpliedin theirrejoinderto Bhuttoon April9, 1973.18The UDF
claimedthatthe"first, fundamental rightof a Muslimis to be ruledin ac-
cordancewithIslam." The groupwouldalso have preferred the advice of
theIslamicCouncilto be bindingand thelegislativeactionoftheassemblies
to be stayeduntilan opinionwas receivedfromtheCouncil.'9The conflict
whichbegan as soon as Pakistanbecame independentcontinuedto be
playedas modernists in Islam (and a fewalmostsilent
and traditionalists
secularists)vied overtheroleofIslam in thestate.As has been thecase in
1956 and 1962,themodernists again won out,butthetraditionalists can be
expectedtocontinueto pressfortheirinterpretation.
A CONSTITUTION FOR PAKISTAN
Thereare a numberof otherfeaturesof theConstitution of 1973 which
wouldbe worthy ofcomment werespaceavailable.However,thethreeissues
mentioned:federalism and provincialautonomy, theparliamentary system
(includingthesafeguards fortheprimeminister),and theIslamicnatureof
thestateare thoseoverwhichthegreatestcontroversy was aroused.
Constitutions can be simplywords printedon paper, or theycan be
"cornerstones ofa nation,"embodying withinthewordsthephilosophy, and
a planofactionto carryoutthatphilosophy, ofa groupofpeopleorganized
forpoliticalpurposesintoa nation-state. The proofof thelattercan onlybe
foundin time,timein whichthepeopleat largeand theirrepresentatives in
thegovernment andtheopposition adheretothespiritas wellas theletterand
cooperateto workforthenationundertherulesof thegamelaid outin the
basic law.
between an "Islamic state" and a "Muslim state"
"8Foran excellentdifferentiation
and Pakistan'sstrugglewiththe two,see Donald E. Smith,"Secularism in Bangladesh,"
Worldview,April 1973, pp. 11-16.
"Dawn, April10, 1973.
CRAIG BAXTER is a memberof theU.S. ForeignService,currentlyservingas Council-
lor at theAmericanEmbassyin Ghana.