By SHAHZADO SHAIKH
Quaid-e-Azam’s Vision: A Democratic Pakistan
Indian Independence Act of 1947 (British Act of Parliament) designed the new
legal system for independence. Section 18(3) provided for continued validity of
colonial system and its laws. However, section 6 provided that ‘the legislature
of each of the new Dominions shall have full power to make laws for that
Dominion, including laws having extra-territorial operation’.
Section 18(3), rather than section 6, played more important role in determining
Pakistan’s indigenous politico-legal system. Until adoption of Constitution of
1956, Pakistan was governed under arrangement of 1935 Government of India Act,
as modified by Indian Independence Act, and as adopted by Pakistan (Provisional
Constitution) Order, 1947.
Under this arrangement, certain parts of the laws of England had been preserved
by the Constitution of India, also [Art. 372(1)]. Such parts of English law as
were in force before commencement of the Constitution, and had not been altered,
repealed or amended, remained the law of the land until they were expressly
repealed.
Pakistan adopted entire colonial political, constitutional and legal legacy,
without Islamic modifications. Entire system continued to retain British
colonial character. It could not be altered by the stroke of pen by one man,
even the supremo like the Quaid himself. It would have been totally undesirable,
being dictatorial and autocratic. Despite frequent constitutional and political
disruptions, the system mainly retained its colonial character.
Under initial proposal, First Constituent Assembly was suggested to frame a
constitution for whole of British India. But Muslim League demanded separate
assemblies, for drafting constitutions of Pakistan and India. Pakistan’s
Constituent Assembly was created by Notification of Government of India on 26
July 1947, and convened on 10 August 1947. It acted as Legislature also during
transition period.
Some people criticize that Jinnah’s decision to become Governor General was the
first blow to parliamentary democracy in Pakistan. But this decision has to be
analyzed and appreciated both in the light of the constitutional arrangement in
place under 1935 Act, the Indian Independence Act, as adopted by Pakistan
(Provisional Constitution) Order, 1947, and the political situation under which
Jinnah had to exercise his constitutional authority, for nurturing the new
sapling.
A specific provision as was available in British North America Act and other
Dominion constitutions binding the Governor General to the advice of the Cabinet
or Council was not available in the Provisional Constitution Order for Pakistan.
Therefore Governor General of Pakistan was constitutionally a more empowered
Governor General, in the Vice Royal mould.
In addition, there were other reasons also as to why Pakistan was not a fully
functioning democracy, at its birth. It mainly comprised regulated provinces and
areas of British India, with following features:
-executive was excessively strong,
-elected institutions were weak,
-undeveloped middle class, and
-feudal aristocracy.
The above geo-polity needed a strong Governor General. Jinnah’s successors to
the office did not have the stature or the caliber that he had. Thus, Pakistan’s
democracy soon fell perpetually victim to factionalism and dictatorship.
In original GOI Act1935 all executive authority was vested in Governor General
who in some matters would act on the advice of his ministers whom he alone chose
in his discretion and in other matters such as maintenance of law and order,
safeguarding of the financial stability and credit of the federal government,
rights of minorities, rights of Indian states etc., he would act in his
individual judgment.
Section 8 of the Independence of India Act 1947 (“IOI Act 1947”) radically
modified the above arrangement, while simultaneously empowering the Governor
General to adapt the GOI Act 1935 as he pleased.
Campbell Johnson argued in his book “Mission With Mountbatten” that Ninth
Schedule of Government of India Act 1935 (“GOI Act1935”), strengthened Governor
General and gave him powers to ensure passage of bills in the form that had been
recommended by the Governor General. However, from 19 July 1947 onwards, the
Ninth Schedule was no longer available (Sayeed, 1992).
An obvious distinction between Dominion of Pakistan and Dominion of India was
the “Section 93” which empowered central government to dismiss provincial
legislatures. Pakistan omitted Section 93 [later Art.92-A, and then notorious
Art. 58(2)B], but India adopted it. Nehru, as Prime Minister, made use of
Section 93.
On May 22, 1948, section 102 of Govt of India Act, 1935, was amended in
Pakistan, on the plea that country faced economic emergency, so that Central
Government could declare emergency and legislate in Provincial List.
On July 16, 1948, Article 92 (A) was introduced in Govt. of India Act, 1935, so
that Governors could impose Governor Rule, in Emergency when Govt. could not be
run according to Law. Before independence similar provision in Art. 93, was
agitated as being exploitative during 2nd War.
On August 27, 1948, under Art. 102 of Act 1935, Emergency was declared on the
plea of muhajir influx and economic dangers. On January 26, 1949, under Article
92 (A) of Govt. of India Act, 1935, Governor Raj was imposed in Panjab.
Under Public & Representation Office Disqualification Act (PRODA), public
representatives were selectively disqualified by Governor General in his
discretion, up to 10 years, for corruption.
It may be more interesting to analyze dismissal of Khan Ministry, in NWFP,
ordered by Jinnah, soon after independence:
June 3rd Plan, agreed by Congress and Muslim League, envisaged a referendum in
NWFP to determine which constituent assembly the province would join. Congress
got Sir Olaf Caroe, governor of NWFP, removed who was alleged to be partial
towards Muslim League. He was replaced by Rob Lockhart, who enjoyed confidence
of Congress and its ministry in the Frontier.
On 27th June, 1947, Ghaffar Khan announced “to establish … an independent
state..”. He said that the British were planning on making NWFP the base of
operations against Russia and that the “arrival of Gen Montogomery and his
meetings with Mr. M A Jinnah are significant”. He announced the boycott of the
upcoming referendum.
Refusal to participate thus looked like an attempt to disintegrate the procedure
before it had begun.
On 2nd July, 1947, Pakistan Times carried a story by API with Peshawar Dateline
of 30th June, that “The idea of an independent Afghan state between Punjab and
Afghanistan was supported by the Kabul newspaper, Islah, the semi-official organ
of the Afghan Government.
The referendum held under a governor who enjoyed the confidence of the Congress,
with a Congress government in the province, still resulted in a landslide
victory for the Muslim League on the Pakistan question.
Dr. Khan Sahib had said that he would resign if Pakistan got 30% of the
electorate. Pakistan polled more than 50% of the total electorate. But Dr. Khan
Sahib didn’t resign. He claimed that he commanded legislative majority.
The option was to ask Dr. Khan Sahib and his ministry to resign, failing which
NWFP ministry was to be dismissed and invite the leader of the opposition to
form a new ministry, or use section 93 and bring NWFP under federal rule on or
before 14th of August, 1947. Mountbatten refused to dismiss the NWFP ministry as
he ought to have done, leaving it as a legacy for the new state of Pakistan.
Given the situation, Dr. Khan sahib’s ministry was dismissed under Government of
India Act 1935 after the creation of Pakistan on Jinnah’s orders. Jinnah used
his powers under Section 51(5) and not Section 93 (which was omitted by Pakistan
though a variant of it i.e. 92-A was introduced in July 1948) to instruct the
governor to dismiss the ministry and replace it with a Muslim League ministry.
It was argued that it was not merely a question of party politics and democracy.
A government in power, that had opposed accession of the Province to Pakistan,
posed more problems to the stabilizing process of the new state, than what was
obvious in the politics. Pakistan, faced with tremendous odds and already being
cash strapped, could not afford fresh elections in NWFP. Abdul Qayyum Khan, the
Congress turncoat now in Muslim League, managed to show his majority to form
Muslim League government. By January 1948, Muslim League had won over 7
Congressmen and by the budget session, the League government was brought in
place.
It has been observed that Jinnah’s decision to become Governor General was not
in contradiction to the established dominion constitutional norms in British
Empire. In the given situation, the choice was between choosing a common
Governor General, which could hurt Pakistan’s interests, or Jinnah should take
the mantle himself. The new state had to be guided by a Governor General capable
of performing functions of higher control and co-ordination which formerly
vested in him under the prevalent constitutional arrangement. Furthermore,
people expected role of an impartial arbiter from Jinnah. Nehru wrote in his
book “Discovery of India”- the only Muslim League politician of noted ability
was Jinnah.
Yasser Latif Hamdani has referred to Sayeed who quoted examples of Lord Elgin
and Lord Dufferin, as strong Governor Generals in the formative phase of
democratic dominion of Canada. Australia and Ireland can also be relevant
examples of having such first Governor Generals of the Dominions. Mountbatten
presided over not just every major decision of the Indian government, he even
commanded and directed Indian troops in Kashmir.
In spite of serious circumstances, Jinnah resigned from presidency of Muslim
League soon after independence. It was later, on October 2, 1950, that Working
Committee of Muslim League, recommended that ban placed on holding public office
along with offices in Muslim League, be removed. These recommendations were made
to clear way for Liaquat Ali to become President of Muslim League, which had
fallen vacant due to resignation of Ch. Khaliq.
In this specific political perspective and constitutional frame, it will also be
interesting to examine what democracy meant to different stakeholders in the new
country.
The widespread use of the term ‘democracy’, and its application in different
forms of governments and institutions has confounded its concept. It is,
therefore, important to understand basic notion of democracy and its variable
nuance in a particular polity.
Issue of precise form of
parliamentary democracy is distinct from issue of parliamentary sovereignty.
Discussion of parliamentary democracy pertains to executive powers viz-a-viz
legislative powers, whereas concept of parliamentary sovereignty deals with
people’s right to make their laws unfettered and unrestricted.
Western democracy, in academics and in theory, is generally considered as the
government of the people, by the people, and for the people.
In words of the Quaid western democracy did not exist anywhere in the world in
the strict sense of this ideal.
(Jamiluddin Ahmad, Speeches and Writings of Mr. Jinnah,
Vol. I. Sh. Muhammad Ashraf, 1968), p. 226)
Speaking in a meeting of Muslim University Union Aligarh, on March 10, 1941, the
Quaid observed:
“ I have asserted on numerous occasions that democratic parliamentary system of
government they have in England and other western countries is entirely unsuited
to India.”
(Jamiluddin Ahmad, Vol. I, op. cit., pp. 122-133)
In his article on “The Constitutional Maladies in India” published in the Time
and Tide (London) in January 1940 he strongly criticized western democracy and
considered it as unsuitable to united India.
(Jamiluddin Ahmad, Vol. I, pp. 122-133)
But there was other specific argument and explicit logic also behind these
assertions, in their political perspective. Western democracy means majority
rule. In undivided India it meant Hindu rule as they were in perpetual majority,
and Muslims were in perpetual minority.
Speaking on the occasion of session of All-India Muslim League held at Lahore in
March, 1940, when Lahore resolution was passed, the Quaid “exposed the
absolutist character of democracy which the Congress High Command wished to
impose on the whole of India…”
(Waheed-uz-Zaman, “The Quaid-i-Azam’s Vision of Pakistan. The Pakistan Times,
August 14, 1979, p. III:
Jamiluddin Ahmad, op. cit. p. 170)
According to Jamiluddin Ahmed, the Quaid often criticized democracy in his
speeches in Legislative Assembly.
(Jamiluddin Ahmed, Vol 3, I &II)
In this political perspective, there was yet another reason for his distinct
views. Speaking on a reform scheme at Sibi Darbar on February 4, 1948, he
remarked:
It is my belief that our salvation lies in following the golden rule of conduct
set for us by our great law-giver the Prophet of Islam. Let us lay the
foundations of our democracy on the basis of truly Islamic ideals and
principles.
(Speeches and Statements as Governor-General, (edition, 1989), p.56)
While employing terminology of Islamic democracy, he clarified that he never
meant theocracy. Islamic democracy is different from theocracy. He asserted
that:
…. In any case Pakistan is not going to be a theocratic State to be ruled by
priests…We have many non-Muslims — Hindus, Christians, and Parsis — but they are
all Pakistanis. They will enjoy the same rights and privileges as any other
citizens and will play their rightful part in the affairs of Pakistan.
Broadcast to the people of the United States of America on Pakistan (February
1948)[1] Ahmed, p. 239
He was of the view that theocracy both as a concept or a system is purely a
western product.
(Khurshid Ahmad, Western Fundamentalism)
Quaid’s statements and decisions have been discussed in different perspectives.
But it is very important to analyze and understand his statements, which define
different dimensions and contours of democracy, in the context of the occasion
and the audience.
Islamic democracy was presented as a system of government in which sovereignty
belongs to Allah and legislative functions are carried out by elected
representatives according to Shariah through Majlis-i-Shura. Government business
is conducted according to the injunctions of the Quran and the Sunnah. Neither
ruler, nor parliament, nor individual, nor institution can act in absolute
manner in any matter. Only the injunctions of the Quran and the Sunnah provide
standard for behaviour in society. Rule of Islamic democracy lies through Sharia
law.
With whatever terminology, it is qualified, whether Islamic democracy, Socialist
democracy, etc., etc., according to International Encyclopedia of Social
Sciences, it “is harder to pin down” democracy.
(Encyclopedia of Social Sciences,
Vol. 4. ed. 1968, pp. 112-20)
Quaid-e-Azam Muhammad Ali Jinnah was a supremo as President, Muslim League,
Governor-General of Pakistan (14 August 1947 – 11 September 1948), Speaker of
National Assembly (11 August 1947 – 11 September 1948), and President,
Constituent Assembly, which acted as Legislature also during transition period.
His role was of basic importance in setting trends for different democratic
traditions and institutions in the new born country. Yet he did not provide any
draft for parliamentary or any other brand or degree of democracy. He quite
categorically expressed his views, in this regard:
The constitution of Pakistan has yet to be framed by the Pakistan Constituent
Assembly. I do not know what the ultimate shape of this constitution is going to
be, but I am sure that it will be of a democratic type, embodying the essential
principles of Islam…
(Speeches and Statements as Governor-General, (edition, 1989), p.65)
The Constituent Assembly has got two main functions to perform. The first is the
very onerous and responsible task of framing the future constitution of Pakistan
and the second of functioning as a full and complete sovereign body as the
Federal Legislature of Pakistan.
(Address to the Constituent Assembly of Pakistan (11 August 1947)
India’s Constitution was passed on 26 November 1949. Pakistan’s First draft of
the Constitution, prepared in 1950, contained Objectives Resolution, a policy
provision, made into a preamble, as the first product of Constituent Assembly.
It was noted that it reflected construct and configuration of India’s Objectives
Resolution, adopted by India’s Constituent Assembly, more than three years
earlier, on 22 January 1947.
Introduction of Objectives Resolution in first Constituent Assembly of Pakistan
on 7 March 1949, set a general direction and frame for law makers. Basic
Principles Committee was constituted by first Constituent Assembly on 12 March
1949, to report in accordance with the Resolution.
Jinnah did not himself unfold the draft of the constitution, which could have
fettered Pakistan Constituent Assembly from deliberating freely and taking
decisions independently in the consultative process of the Constituent Assembly.
While he laid due stress on Islamic principles, he ruled out theocracy, saying:
"Pakistan is not a theocracy or anything like it. Islam demands from us the
tolerance of other creeds."
Delay in drafting the Constitution was also due to the effort to satisfy
secularists, sectarians, and federating units. From 1949 to1956, all the three
draft constitutions incorporated that laws should be in accordance with Islam.
In constitutions of 1956, 1962, and 1973, Islam was, although, given central,
but largely symbolic, role. Question of Pakistan’s national identity as Muslim
state has significant impact on political and legal developments. There still
echo divergent voices from civil society, not in consonance with political
consensus, on role of Islam in legal system.
Furthermore, there were not only complex systemic issues involved but there were
basic and fundamental questions which were to determine the very nature and
content of the constitution itself.
The Quaid was also conscious of the ground realities and conspiracies hatching
around. He asserted:
You have to stand guard over development and maintenance of democracy…
(Address to the officers and men of the 5th Heavy Ack Ack and 6th Light Ack Ack
Regiments in Malir, Karachi February 21, 1948.)
He addressed emotions and agitating actions, at all levels, in categorical
terms:
It is in your hands to put the Government in power or remove the Government from
power, but you must not do it by mob methods. You have the power; you must learn
the art to use it; you must try and understand the machinery. Constitutionally,
it is in your hands to upset one Government and put another Government in power
if you are dissatisfied to such an extent.
(Address, Public Meeting, Dacca, 21 March 1948)
With the removal of foreign domination, the people are now the final arbiters of
their destiny. They have perfect liberty to have by constitutional means any
Government that they may choose. This cannot, however, mean that any group may
now attempt by any unlawful methods to impose its will on the popularly elected
Government of the day. The Government and its policy may be changed by the votes
of the elected representatives….
(Broadcast, Radio Pakistan, Dacca, 28 March 1948.)
Muslims in Pakistan want to be able to establish their own real democratic
popular government. This government will have the sanction…of the people of
Pakistan and will function with the will and sanction of the entire body of
people in Pakistan, irrespective of caste or colour….
(Interview to the Daily Worker, London, 1944.)