law

1. CONSITUTIONAL
DEVELOPMENT OF
PAKISTAN 1947 TO 1958
BY: Z. A. SAHITO

2. CONSTITUENT ASSEMBLY 1947-54
 UNDER INDIAN INDEPENDENCE ACT 1947
 ELECTED MEMBERS OF 1946 ELECTION WERE MEMBERS OF C.A
 MEMBERS WERE 69 AFTER INDEPENDENCE THEY WERE CHANGED TO 79
 MAIN FUNCTIOS;
 DRAFT FUTURE CONSTITUION OF COUNTRY
 AND TO ACT FEDERAL LEGISLATURE (UNDER MODIFIED GOI ACT 1935)

3. CONSTITUIONAL ISSUES
 FEDERALISM(TO MAINTAIN UNITY IN COUNTRY’S DIVERSITY, EAST AND WEST WING)
 DIVISION OF POWER ( DIFFICULT AS IT WAS TO BE DIVIDED AMONG CENTRE AND PROVINCES)
 REPRESENTATION (B/W EAST AND WEST WING AS THERE WAS DIFFERENT POPULATION AND
SIZE. ALL OF THEM WERE SENSITIVE TO THEIR ISSUES)
 TO SOLVE REPRESENTATION ISSUE C.A FORMED BASIC PRINCIPLE COMMITTEE (BPC). THEY GAVE
TWO REPORTS BUT WERE NEVER ACCEPTED BY EAST AND PUNJAB. PRINCIPLE OF PARITY WAS
NOT APPRECIATED.
 THEN MUHAMMAD ALI BOGRA FORMULA WAS GIVEN AND SURPRISINGLY AFTER ALMOST 7 TO 8
YEARS BOTH WINGS AGREED. BICAMERAL LEGISLATURE, UPPER HOUSE WITH EQUAL
REPRESENTATION, IN LOWER HOUSE POPULATION WILL BE CONSIDERED. BOTH WINGS WILL
HAVE EQUAL REPRESENTATION IN JOINT SESSION.
 SEPARATE (WEST) OR JOINT(EAST) ELECTORATE, IN 1957 JOINT WAS ADOPTED
 NATIONAL LANGUAGE ISSUE
 PARLIAMENTARY OR PRESIDENTIAL FORM OF GOVERNMENT
 ISLAMIC OR SECULAR STATE

4. OBJECTIVE RESOLUTION
 MAIN ISSUES;
 SCOPE OF LEGISLATION? WHO WILL DECIDE ISLAMIC NATURE OF LAWS?
POSITION OF WOMEN, VOTE AND WORK? WHAT ABOUT RELIGIOUS MINORITY?
ANOTHER IMPORTANT ONE WAS WHAT KIND OF INSTITUTIONSHAVE TO BE
CREATED TO TRANSLATE THE NOTION OF SUPREMACY OF QURAN AND SUNNAH.
 C.A ADOPTED MIDDLE COURSE AND MODERNIST APPROACH. ISLAMIC PRINCIPLES
AND MODERN NOTIONS OF GOVERNANCE WERE AMALGAMATED

5. MAIN FEATURES;
 SOVEREIGNTY BELONGS TO ALLAH ALONE
 AUTHORITY DELEGATED BY HIM IS A TRUST AND WITHIN PRESCRIBED LIMITS
 CONSTITUION WILL BE FRAMED
 STATE WILL EXERCISE ITS POWER THROUGH REPRESENTATIVES OF ITS PEOPLE
 PRINCIPLES OF DEMOCRACY, FREEDOM, EQUALITY, TOLERANCE, SOCIAL JUSTICE WILL BE FULLY
OBSERVED
 MUSLIMS LIVE LIFE ACCORDING TO INDUCTIONS OF ISLAM
 NON MUSLIMS WILL HAVE FREEDOM TO PRACTICE THEIR FAITH
 PROVISIONS FOR SAFEGUARD OF LEGITIMATE INTEREST OF MINORITIES AND DEPRESSED
CLASSES
 PAKISTAN SHALL BE A FEDERATION
 PEOPLE OF PAKISTAN SHOULD PROSPER AND ATTAIN RIGHTFUL PLACE IN COMITY OF NATIONS

6. IMPORTANCE AND OBJECTIONS
 OBJECTIVE RESOLUTION IS FIRST AND BASIC DOCUMENT OF CONSTITUTIONAL HISTORY OF
PAKISTAN WHICH BECAME PREAMBLE OF ALL THE FUTURE CONSTITUTIONS.
 A FRAMEWORK PROVIDING MECHANISM TO ACHIEVE GOALS.
 IT EMBRACES CENTRALITY OF ISLAM AND LINKS TO PRE-INDEPENDENCE PERIOD.
 INTERESTINGLY, ALL AIML LEADERS WERE NOT IN FAVOR OF AN ORTHODOX STATE.
 THEREFORE, THEY TOOK MIDDLE WAY, ABIDING BY ISLAMIC LAWS AND INTERNATIONAL
DEMOCRATIC VALUES.
 HOWEVER, THERE WERE OBJECTIONS BY NON MUSLIMS THAT GOVERNMENT WAS TRYING
TO AMALGAMATE RELIGION AND POLITICS AGAINST THE SPIRIT OF DEMOCRACY.
 THEY OPPOSED SHARIAH AS THEY BELIEVE IT WAS NOT ADEQUATE FOR MODERN TIMES.
 NON MUSLIMS FEARED THAT IT WOULD ENCOURAGE RELIGIOUS EXTREMISM IN SOCIETY.
 TERM MINORITIES’ RIGHTS ULTIMATELY PROMOTED INEQUALITY IN SOCIETY.

7.  1ST BPC CRITICISM
 CRITICIZED THROUGHOUT THE COUNTRY AND BOTH WINGS WERE NOT SATISFIED
 RELIGIOUS GROUP CRITICIZED AS THEIR WAS NOTHING ABOUT ISLAMISATION
 REPRESENTATION ISSUES; EP WAS OF THE VIEW THAT THEIR MAJORITY HAS BEEN
DENIED
 EP’S POPULATION WAS SLIGHTLY MORE THAN WP BUT IT WAS TREATED AS SMALL
PROVINCE.
 SO DOMINATION OF WP WAS INTOLERABLE FOR EP AND URDU AS NATIONAL
LANGUAGE WAS NOT ACCEPTABLE FOR EP
 2ND BPC CRITICISM
 THIS TIME IT WAS WP PARTICULARLY PUNJAB CONDEMNED THE REPORT BECAUSE
UPPER HOUSE EQUAL REPRESENTATION WAS NOT ACCEPTABLE TO THEM.
 THIS WAS DECLARED AGAINST THE PRINCIPLE OF FEDERATION. HOWEVER WP
FAVORED EQUALITY IN UPPER HOUSE ONLY. POLITICAL CRISIS REMOVED THEN PM AS
WELL
 MUHAMMAD ALI BOGRA FORMULA CRITICISM
 A DIFFICULT PROCESS THOUGH WIDELY ACCEPTED
 TWO NATIONAL LANGUAGES ACCEPTABLE FOR BOTH WINGS.
 THIS EXHIBITED THAT DEADLOCK WAS BUT…

8. Constituent Assembly Dissolution
 IN 1954, GOVERNOR GENERAL GHULAM MUHAMMAD DISSOLVED THE CA
 THAT WAS CHALLENGED IN SINDH HIGH COURT BY THEN PRESIDENT OF CA
MOLVI TAMEEZUDDIN.
 THE COURT DECLARED THE DISSOLUTION ILLEGAL BUT THE FEDERAL COURT
UPHELD THE GOVERNOR GENERAL ACTION BUT ASKED FOR SETTING UP AN
ELECTED CA.
 2ND CONSTITUENT ASSEMBLY IN 1955, GG GHULAM MUHAMMAD CALLED A
CONVENTION ON MAY 10, 1955.
 ALL ITS MEMBERS WERE TO BE ELECTED INDIRECTLY (BY PROVINCIAL
ASSEMBLIES)

9. One Unit Scheme October,1955
 ALL PROVINCES IN WEST WERE HELD AS ONE UNIT AND EAST AS OTHER UNIT.
 BOTH PARTS WERE TWO UNITS AND COULD BE ADDRESSED EQUALLY.
 BUT PRESENCE OF SEVERAL PROVINCES IN WEST HAD COMPLICATED THE ISSUE OF
WEST PAKISTAN REPRESENTATION IN CA.
 HOWEVER, ONE UNIT SCHEME ASSIST THE TASK OF CONSTITUTION MAKING TO BE
ACHIEVED SUCCESSFULLY.
 PREVIOUS COMMITTEE REPORTS WERE UTILIZED BY NEW ASSEMBLY COMPLETED ITS
WORK.
 PRESENTED THE DRAFT ON JANUARY 9,1956.
 THERE WERE CERTAIN AMENDMENTS AND IT WAS APPROVED ON JANUARY 29, 1956
 ENFORCED ON MARCH 23, 1956. EVENTUALLY PAKISTAN HAD BECOME AN ISLAMIC
REPUBLIC.

10. SALIENT FEATURES OF 1956
CONSTITUTION
1. NATURE (13 Chapters, 240 Articles & 6 Schedules)
2. WRITTEN CONSTITUTION (Not flexible, Simple 2/3 majority was required)
3. PARLIAMENTARY SYSTEM (Supremacy of Parliament)
 PRIME MINISTER (PM was head of Govt assisted by the cabinet. President was ceremonial
and head of the state)
 ONE HOUSE PARLIAMENT (National assembly with 300 members plus 10 women seats.
Principle of parity was observed)
4. FEDERAL SYSTEM ( 3 list federal, Provincial & concurrent. There were 2 provinces)
5. PROVINCIAL STRUCTURE (Elected assembly Chief Minister & his cabinet had real
powers. Nominal head was Governor. Center head overriding powers & emergency
powers, clause 191 & 193)

11. SALIENT FEATURES OF 1956
CONSTITUTION
6. INDEPENDENT JUDICIARY (Supreme, High & Subordinates courts. SC had power
of interpretation of constitution)
7. FUNDAMENTAL RIGHTS (Civil & Political rights but suspended in emergency)
8. DIRECTIVE PRINCIPLES OF STATE POLICY (These principles provided guidelines
for policy making)
9. ISLAMIC CHARACTER (Name, Objective resolution, Directive principles & no law
could be made to violate Islamic principles)
 WORKING OF THE CONSTITUTION: It worked from 23rd March 1956 to 7th October
1958. No election were held and constitution was abrogated.

12. CONTINUED….
 Maximum efforts were made to ensure equality between center &
provinces.
 Bengali leaders had been demanding autonomy.
 Art 31; was approve that their demands were met properly.
 A question arised on joint & separate electorate.
 EP supported joint & WP supported separate electorate.
 After taking opinions of provincial assemblies, joint electorate was
finalized.
 Constitution could not be implemented as Congress & Awami league
refuse to sign Islamic provisions.
 A political dead lock prevailed until a Military Coup dismissed the govt &
the constitution 1958.

13. MOULVI TAMEEZ U DIN’S CASE
BASIC FACTS:
 The CA amended sections 9,10,10A,10B of GoI Act 1935.
 These amendments reduce the power of governor general.
 Governor general reacted and dissolved CA on 24th October 1954.
 GG issued a proclamation.
 Moulvi Tameez-u-din was president of CA so he challenged the
proclamation in Sindh chief court.
 He prayed for writ of mandamus & writ of quo warranto.

14. CONTINUED…..
WRIT OF MANDAMUS:
To restraint respondents from giving effect to the proclamation and from
interfering will be exercise of his functions as President of CA.
WRIT OF QUO WARRANTO:
To oust ministers of the cabinet (respondents 2-10) appointed by GG.
GOVERNMENT’s REPLY:
Sec: 6(3) of the Indian Independence act 1947, gave the GG of each
dominions full power to assent any law of legislature of the dominions.
And Sindh Chief court has got no jurisdiction to issue any writ and Section
223-A which was inserted by the CA in the GoI act, 1935 giving writ
jurisdiction to the court, was never assented by the GG of Pakistan.

15. Situation on Ground
 The laws or any amendment made in GoI act, 1935 were never sent for
approval to GG from 1947 to 1954. So many laws were in operation and many
cases had been decided or were under trial in this regard.
 GG was not having power to dismiss assembly and to issue Emergency power
ordinance ,1955 under GoI act 1935.
 Under Indian Independence act, 1947, GG was bound to give his assent to the
laws made by the CA till the new constitution.

16. SIND CHIEF COURT’S DECISION
 Sindh Chief Court decided in favor of Maulvi Tamizuddin
 The proclamation issued by the GG was invalidated
 Objection against S.223-A was overruled.
 Objection against new S.10 was overruled.
 The word “law” in S.6(3) has reference only to ordinary law and not constitution.
 CA was a sovereign body and was not subject to checks and balances.
 CA not only had powers to amend S.6(3) of Indian Independence act but whole act itself.
 Rule 15 was properly framed by CA with regard to dissolution.
 The Indian Independence act does not contain express provision for dissolution.
 Legislatures are created by statute so statute should provide for their dissolution.
 Bracton’s maxim, “ that which is not otherwise lawful is lawful by necessity.”
 The argument GG was having His Majesty’s prerogative to dissolve the CA was not valid.

17. Govt’s Appeal
 Govt: filed an appeal in Federal Court headed by Justice Munir.
 Could GG (a nominee of the Queen) imply his power to deny the laws of the
CA. ( a representative body)?
 Has the CA lost its representative mandate in 1954 as it was elected in 1946?
 The Federal Court decided in favor of the Govt: on 21st march, 1955.

18. FC’s Decision