University of California Press is collaborating with JSTOR to digitize, preserve and extend access to Asian Survey.

Transcription

1 Pakistan: Constitutional Issues in 1964 Author(s): Ralph Braibanti Source: Asian Survey, Vol. 5, No. 2, A Survey of Asia in 1964: Part II (Feb., 1965), pp Published by: University of California Press Stable URL: Accessed: 23/08/ :12 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. University of California Press is collaborating with JSTOR to digitize, preserve and extend access to Asian Survey.

2 PAKISTAN: CONSTITUTIONAL ISSUES IN 1964 RALPH BRAIBANTI Clarification by the Pakistan National Assembly and by the judiciary of four important constitutional issues makes 1964 second in importance only to 1962, the year the second constitution was promulgated. Pakistan continues to be a constitutional system with a political process restrained by the ordinance-making power, indirect elections, the ambiguity of a presidential apparatus functioning in a setting conditioned to parliamentary practice and by the uncertain allocation of powers between center and provinces. Nevertheless, developments in 1964 suggest that the legislature, suspended during forty-four months of martial law, has not been a totally irresponsible political force and that the judiciary has continued to manifest its resiliency as a countervailing force to executive power. Together they have succeeded in giving the polity of Pakistan a coherence which it lacked and have placed that polity quite clearly (in concept, if not in operation) within the ambit of western constitutional presidential systems. Fundamental Rights: The first important development was the first amendmento the Constitution approved by the National Assembly on December 25, 1963 and assented to by the President on January 10, By enumerating and defining fundamental rights and rendering them justiciable, this amendment put an end to one of the most vexing problems created by the 1962 Constitution. The first Constitution of 1956 had enumerated twenty fundamental rights, alleged violations of which could be contested in the high and supreme courts. The congruence of these rights with the peculiarly expansionist interpretation of the writs (mandamus, certiorari, quo warrant, prohibition and habeas corpus) provided a ready means of securing their enforcement. Enumeration, justiciability and writs 1 assumed the sanctity of a legal triadic deity, especially among the legally trained, who number some 40,000 in Pakistan. During the fortyfour months of martial law (October 7, 1958-June 8, 1962) the courts strained to assert the transcendence of fundamental rights irrespective of martialaw efforts to oust their jurisdiction. While the doctrine that fundamental rights transcended written law was never asserted unambiguously, the implication that they did seemed to become increasingly clear. When the new Constitution was promulgated by President Ayub in 1962, no feature provoked greater opposition than elimination of these rights and the power of the courts to enforce them. The legal community, which 1 Fuller explanation of the writ jurisdiction can be found in Ralph Braibanti, "Public Bureaucracy and Judiciary in Pakistan," in J. La Palombara, ed., Bureaucracy and Political Development (Princeton, 1963), pp See also chapter on legal research in Ralph Braibanti, Research on the Bureaucracy of Pakistan (Duke Univ. Press, forthcoming 1965). 79

3 80 P A K I S T A N generally supported the justiciability of fundamental rights, found it difficult to understand why one of the most distinguished of their group, Manzur Qadir, who is said to have drafted the 1962 Constitution, acquiesced in the elimination of fundamental rights as justiciable doctrine. It was largely this sense of having let the law down that provoked the newly appointed Foreign Minister, Muhammad Ali Bogra to refer to Manzur Qadir on the floor of the National Assembly as a "Rasputin-like, young upstart politician." 2 Subsequently, the bar associations of Chittagong, Khulna, Gujrat, Peshawar, Lahore, and Karachi passed resolutions opposing Manzur Qadir's appointment as Chief Justice of the High Court of West Pakistan, and Manzur felt obliged to issue a formal statement denying and explaining the vicious allegations against him which by now had become personal rather than ideological.3 Such was the power of the legal triad to stir the basest passions when threatened. The Constitution Commission, headed by the venerable and widely respected former Supreme Court Justice M. Shahabuddin, reported that 98.39%o of the 6,269 questionnaires answered (and presumably of the 565 persons interviewed) favored enumeration of fundamental rights in the new Constitution.4 Question 22, which dealt with this issue, was phrased in such a way as to link justiciability with enumeration; hence we may assume a like number favored court enforcement as well. The cogent, wise answers of former prime minister, Chaudhry Mohamad Ali, which were leaked to the press and published in toto in the Pakistan Times 5 clearly revealed his view that rightshould be enumerated and enforceable. The Constitution Commission concurred; while there were four notes of dissent on other issues, the Commission was united in its view on fundamental rights. But the report of the Constitution Commission was virtually the only one of thirty-three reports of martial law inquiry commissions which was not accepted by President Ayub Khan. The 1962 Constitution, promulgated on March 1, 1962 (made effective June 8, 1962) did not list rights or render them justiciable. It included instead Part II, listing sixteen "principles of law-making" and twenty-one "principles of policy."' The responsibility for determining if laws enacted were repugnanto the principles of law-making was vested in the appropriate legislature. Advice might be secured from the Advisory Council of Islamic Ideology. Jurisdiction of the 2 A version of Muhammad All's statement may be found in Pakistan Times, June 12, 1962, p. 1 Muhammad Ali did not mention Manzur Qadir by name but the implication was clear. The Pakistan Times mentioned Qadir as the object of Muhammad Ali's "frontal attack" in a report of the incident in its issue of June 12, 1962, p. 1. Muhammad Ali apologized later for exceeding "parliamentary conventions in attacking a person who was not there to answer it," Pakistan Times, June 14, 1962, p. 1. In the same issue, the Pakistan Times editorialized that Muhammad Ali had been "unreasonable" in his attack. 3 Pakistan Times, Aug. 4, 1962, p. 1; Aug. 7, 1962, p. 7; Aug. 9, 1962, pp. 1, 5. 4 Government of Pakistan, Report of the Constitution Commission, Pakistan (Karachi, 1961), pp Pakistan Times, June 13, 1960, pp. 1 ff.

4 RALPH BRAIBANTI 81 courts was specifically barred. The "principles of policy," a somewhat vaguer set of ideological injunctions, were to be adhered to by all organs of state, each of which was to judge its own adherence thereto. Again court jurisdiction was expressly denied. It seemed, therefore, in the natural order of things that the first amendment to the 1962 Constitution restored fundamental rights to the constitutional eminence which the 1956 Constitution had conferred on them. The amendment abolishes the term "principles of law-making and of policy" and restores the earlier term "fundamental rights and principles of policy." It amends Art. 30 by clearly allowing any aggrieved person to apply to the appropriate court for an "order giving directions" to any person or authority, includin government, to enforce these rights. When read with Art. 98(2) which empower superior courts to issue orders in five categories of action identical to the five extraordinary writs (but without using their Latin designations), this amendment effectively recreates the pre-martial law congruence of "rights and writs" which had become a hallmark of Pakistan's constitutional development. The new amendment defines ten rights, i.e., (1) security of person and freedom of movement, (2) freedom of assembly, association and vocation, (3) freedom of speech, (4) freedom of religion, (5) property rights, (6) equality of citizens, (7) access to public places, (8) discrimination in services, (9) preservation of culture, script and language, (10) abolition of untouchability. A new freedom added to the list is the eighth regarding discrimination in services. This prohibits discrimination based on race, caste, religion, sex, residence, or place of birth in making appointments to the public service. To permit the attainment of parity particularly with reference to Bengali representation, posts may be reserved for a fifteenyear period to secure adequate representation of "persons belonging to any class or area." Thus, the issue of parity in the public services (already guaranteed by Art. 240 of the unamended 1962 Constitution) has been given additional constitutional cognizance and its status and justiciability have been restored to the position held under the 1956 Constitution. This, of course, is a reflection of the greater sensitivity accorded the problems of Bengali "notions of separatism" since the riots provoked by the arrest of the late S. I. Suhrawardy in January A Presidential System and Judicial Review: A second major departure in constitution doctrine was achieved in 1964 by judicial construction rather than by legislative amendment. A series of judgments have now quite clearly moved the apparatus of government within the ambit of what is commonly regarded as presidential rather than parliamentary. The 1956 Constitution provided for the parliamentary form which had been earlier set out by the Indian Independence Act of 1947 and its predecessor instrument, the Government of India Act of Considering the governmental trauma leading to martial law in 1958, the Constitution Commission, noting that 47% of opinion solicited preferred a presidential form,

5 82 P A K I S T A N recommended presidential government with a strong legislature and a delicately contrived system of checks and balances similar to the pattern in the United States.6 But the 1962 Constitution, while providing for strong executive power, did not clearly design a format in which legislative and executive powers were clearly separated. Moreover, what little learning and experience legislators possessed, was with the parliamentary system. Hence it was not surprising that the form of government which emerged was an uncertain mixture of the two systems with the advantages of neither. Cabinet ministers usually attended legislative sessions and answered questions during the question period. The appointment of parliamentary secretaries by the president from among the ranks of legislators and the absence of strong legislative committees with substantiv expertness and staff capable of focusing on relevant legislation contributed further to this ambivalence. It was, however, the dual appointment of cabinet ministerserving in the National Assembly which precipitated what might well be the most momentous decision in the history of the law of Pakistan. This decision halted what appeared to be an inevitable drift towards greater ambiguity and established the structure of government as being clearly presidential. The 1962 Constitution unambiguously provided in Art. 104 that a legislator who might be appointed a minister or to any other "office of profit in the service of Pakistan" could no longer be a member of the Assembly. This provision suggested a presidential system. But Art. 224 of the Constitution permitted the presidento make adaptations "for the purpose of removing difficulties" impeding the implementation of the Constitution. He was granted this power for three months during which time the new paramount instrument was to be put in working order. Pursuant to this authority, President Ayub issued an order allowing ministers appointed from the Assembly to retain their seats as legislators.7 This order was, in effect, an amendmento the Constitution to be in force indefinitely. An appeal made to the High Court of East Pakistan challenging the validity of the President's order resulted in a unanimous judgment written by the present Chief Justice of the East Pakistan High Court, M. Murshed.8 The High Court reasoned that to allow ministers to serve in the Assembly was to alter the very nature of the Constitution. The Constitution was intended to bring into operation a presidential system of government 6 Report of the Constitution Commission, op. cit., pp President's Order No. 34 of Removal of Difficulties (Appointment of Ministers) Order, Text in Gazette of Pakistan, Extraordinary, June 12, 1962 and All- Pakistan Legal Decisions (PLD) 1962, Vol. XIV, pp According to a statement in the National Assembly by A. K. M. Fazlul Quader Chowdhury (who was later to be Speaker of the National Assembly), the President issued Order No. 34 of 1962 because East Pakistani members of the National Assembly refused to accept appointments as ministers unless they could also retain the seats in the Assembly. National Assembly of Pakistan, Debates, Vol. I, No. 5, June 19, 1962, p Mohd. Abdul Haque v. Fazlul Quader Chowdhury, PLD 1963 (Dacca) 669.

6 RALPH BRAIBANTI 83 in which the executive was to be completely separated from the legislature. But the President's "amendment" would have changed that system to an "anomalous Parliamentary form." This would not have been mere "adaptation" of a technical nature, but a major change which could only be made by the normal amending process. "By one sweep of the pen," wrote Justice Murshed, "a vital provision of the Constitution has been wiped out without resorting to a special and massive machinery of amendment... Exactly one month after the Murshed judgment, the Supreme Court handed down a unanimous fifty-four page judgment, upholding the High Court's decision.9 Both of the courts, however, were compelled to deal with another provision of the President's Order (article 6) which deprived the courts of the power to judge the validity of the Order. The two courts dealt with this issue in somewhat different ways, although they concurred in invalidating this ouster of jurisdiction. Significantly, the Supreme Court went beyond the issue of the validity of the President's Order. Declaring that order null and void, the Supreme Court unequivocally established the principle of the inherent prerogative of the courts to interprethe Constitution and to review legislation for its constitutionality. This power of judicial review had been in doubt because Art. 133 specified that only the legislature could decide if it had the power to make a law under the Constitution. After a comprehensive examination of this provision, Justice Murshed had concluded that Art. 133 was intended to apply only to that section of the Constitution dealing with the distribution of powers between the center and the two provinces. This view was not overturned by the Supreme Court, but Chief Justice Cornelius placed the matter of the court's power... on a more general ground, namely, the ground that a written Constitution necessarily connotes the existence of Courts which will, in a graded hierarchy, examine and finally decide the questions which are certain to arise in great number, of whether an act of a statutory authority or a law passed by a law-making authority under the Constitution is, or is not, in contravention of the Constitution. Each of the remaining four justices wrote concurring opinions; three of these placed even greater emphasis on the power of judicial review. Indeed, the Supreme Court's decision in this case is as much a landmark in Pakistan's constitutional development as Marbury v. Madison was in the United States. Central-Provincial Distribution of Powers: A third major change in the polity of the state was achieved by judicial construction in the distribution of powers between the central and provincial governments. The Constitution of 1962 provides for a significant devolution of legislative powers to the two provincial governments in a pattern which departs significantly from earlier structural arrangements. The central, concurrent, and provincial lists of powers which the 1956 Constitution had inherited as cate- 9 Mr. Fazlul Quader Chowdhury v. Mr. Mohd. Abdul Haque, PLD 1963 (SC) 486.

7 84 PA K I STA N gories from the Government of India Act of 1935 were replaced in the 1962 Constitution by a list of forty-nine central government powers in the Third Schedule. These powers include defense, foreign affairs, interprovincial and foreign trade and commerce, insurance, posts, telecommunications, and tourism. All other powers are presumed to be reserved to the provinces except, however, that the central government has power under Art. 131 to enact legislation when the national interest in relation to security, economic financial stability, planning or coordination or achievement of uniformity in different parts of the nation requires it. Obviously, subsequent interpretation by the central government of when such national interests are paramount can change the whole nature of centralprovincial relations and bring into effect a unitary state. It would be reasonable to expect the judiciary to constructhe restraints within which these ambiguous powers are to flow. Prior to 1964, the most important case,10 decided by the East Pakistan High Court, seemed to favor an expansionist view of the prerogative of the central government. In this case the President had issued an ordinance governing the settlement of industrial disputes. Labor and industrial relations, not being listed within the forty-nine central government powers of the Third Schedule, might be assumed to have been powers reserved to the provinces. But the preamble to the ordinance indicated that it was issued under the "national interest" doctrine of Art Although this was challenged by the petitioner on the ground that it usurped provincial power, the Dacca High Court dismissed the challenge in one brief paragraph. Apparently, the doctrine thus enunciated was that when the central government declares a subject to be within the national interest doctrine of Art. 131 and when the statute so specifies, there is no question as to the supremacy of nationa legislation. In 1964, the West Pakistan High Court dealt somewhat more comprehensively with the issue of allocation of powers in an eight-page judgment." In this case, the validity of the West Pakistan Criminal Law (Amendment) Act was challenged on the ground that criminalaw had already been enacted by earlier central governments as a concurrent power and therefore the provincial government did not have the power to enact in a federal field. The judgment made quite clear that the earlier division of powers in the 1962 Constitution "rests on an entirely different basis." Under the 1962 Constitution, criminal law is not enumerated as a central government power; therefore, it is presumably left to the provinces. The High Court noted that the central government had not declared criminalaw as a central power under the national interest doctrine of Art The implication here may be that the central government's power to legislate in the national interest must be first declared, or that power becomes a provincial power. The provinces, by virtue of the residual doctrine, have such powers as agri- 10 Clzit!agong Mercantile Employees' Association v. Chairman, Industrial Court of East Pakistan, PLD 1963 (Dacca) Manzoor Ahmad v. Commissioner, Lahore Division, PLD 1964 (Lah.) 194.

8 RALPH BRAIBANTI 85 culture, education, commerce, industry, land and inland water transportation, law and order, water and power development. May these powers be preempted by the central government even if already exercised by the provinces if the center invokes Art. 131? Presumably so, since the Chittagong decision moved industrial disputes to the ambit of central government control. The doctrine of prior declaration of interest or preemption under Art. 131 has great potential for modifying the pattern of central and provincial powers. A progressively more comprehensive view of what is in the "national interest" may produce the same effect as judicial construction of the commerce and equal protection of the laws provisions did in the constitutional development of the United States. There are, of course, other modes by which the central government can assert its authority, not the least of which is the presidential ordinance-making power, and central appointment of provincial governors. Political realities of the two disparate provinces and the prevailing temper of the nation seem to indicate a significant devolution of power to the provinces as is reflected in the Manzoor Ahmad decision. In accordance with this pattern several central government corporations have been reorganized into two provincial corporations and there has been a quickening of the administrative impulse in provincial governments. While the high courts, at least, have given some definition to the nature of Art. 131 and its effect on central-provincial relations, the Supreme Court has not yet ruled on this issue and a "classic" judgment remains to be issued. Public Liberties: A significant advance in civil liberty was made by the Supreme Court in 1964 in a case involving the dissolution of the orthodox Muslim group, Jamaat-e-Islami, headed by Maulana Abul A'la Maudoodi.'2 This group, which figured prominently Pakistan's religio-political life previously, had organized as a political party with offices scattered throughout both provinces. The government had long been at odds with the Jamaat and had attempted to restrict its activities. The governor of West Pakistan extended the 1908 Criminal Law Amendment Act to the whole of the province and, under its terms, immediately declared the Jamaat to be an unlawful association. Notice of the law's extension and designation of the Jamaat appeared in the same issue of the Gazette of Pakistan on the very day that the government sealed the Jamaat's headquarters. The major issue of the case, however, was the right of the state to ban the Jamaat. The government alleged that the Jamaat was a subversive organization and had to be banned immediately under the Criminal Law Amendment Act which deals with emergency situations. The Jamaat, denying these allegations, contended that it was a political party and as such could be banned only by the Political Parties Act III of 1962 which provided for usual due process. Since that act was a central statute, the Jamaat 12Abul A'la Maudoodi v. Government of West Pakistan, PLD 1964 (Kar.) 478. Supreme Court of Pakistan, Criminal Appeal No. 43 of 1964 and Civil Appeal No. 19-D of 1964, decided on Sept. 25, 1964.

9 86 P A K I S T A N raised the issue of central-provincial powers by contending that lawful banning under the Political Parties Act could be accomplished only by the central government and not by the provinces. The High Court of West Pakistan dismissed the Jamaat's appeal and found for the government. In an identical case, the High Court of East Pakistan ruled against the government. In a 159-page decision, the Supreme Court overruled the High Court of West Pakistan on the ground that banning the Jamaat violated one of the fundamental rights, i.e., freedom of association, which had been added to the Constitution as the first amendment. Chief Justice Cornelius held that the allegations against the Jamaat should have been ascertained by judicial inquiry. Questioning the constitutionality of the 1908 law under which the Jamaat was banned, Cornelius took the opportunity once again to affirm the.right of judicial review of legislative acts. He extended this right to review of executive acts, as well. By instructing both courts to review the banning of the Jamaat in the light of principles of due process, Cornelius seemed to imply consideration of a formula for balancing the need of order with the demands of liberty. Thus in the Maudoodi case, we find not only a libertarian view of freedom in defiance of the executive, but an explanation of the doctrine of judicial review to include executive as well as legislative action. Summary: Within the short span of one year the structural aspects of Pakistan's polity have been given a form which they lacked under the unamended, uninterpreted 1962 Constitution. Its form remain still different from western constitutional systems largely because the electoral process remains indirect and utilizes the apparatus of Basic Democracies rather than universal suffrage. The Franchise Commission in its long awaited report issued in recommended universal adult franchise as the basis of election of the president and members of the national and provincial assemblies. Two of the five commissioners dissented and held that indirect elections as prescribed by the 1962 Constitution were more suitable for the nation's precarious condition. The National Assembly did not accept the Franchise Commission's majority recommendation, however. Thus indirect elections, as part of the governing apparatus, continue to distinguish Pakistan's system from that of such Asian states as India and Japan and from most western constitutional systems. A presidential form of government modeled after the American system has been forged within a federal structure which has some unitary features and certain qualities blended from indigenous elements. This mosaic has been wrought by a martialaw government which has not been tyrannical yet has not been above tampering with basic freedoms. Yet, significantly, the post-martial law government was pushed (as in the cases of 13 Full text in Gazette of Pakistan, Extraordinary, Aug. 23, 1963, pp. 637a-637t. This excellent report includes a valuable historical survey of the electoral process in India and Pakistan.

10 RALPH BRAIBANTI 87 presidential form and of fundamental rights) into directions it disliked. Its control of fiscal and foreign policy has enabled it to sustain an infusion of western technology and ideology which have profoundly influenced developments since Ironically, while foreign policy may be drifting somewhat away from close identity with the United States, the internal development of administration and of the judiciary have remained unmistakably within the western ambit and have even moved away from British norms in the direction of American values. Largely under the impact of massive United States technical assistance in administrative, educational, and rural development reform, the structure of these basic institutions is becoming increasingly American, though the ideological filling remains ambivalent. Although in its sense of generalism and in its corporate ethos, the higher bureaucracy remains decidedly elitist and introspective, its technique is being influenced by American administrative doctrine. That the ideological radiation of such technique will change its elitist quality seems not unlikely. The judiciary, within the short span of one year, has once again demonstrated its capacity to infuse in the larger society western juridical norms. By doing this almost in defiance of a strong executive it has probably prevented the rise of tyranny devoid of a rule of law and the progressive deterioration of a post-martial law polity mired in ambiguity. The judiciary, although far more oriented towards British than American law, has bridged the gap between British parliamentary and American presidential practice more effectively than either the legislature or the executive. Already its decisions begin to reflect more relevant American precedent, although not nearly to the same extent as in Indian law. In 1964, the judiciary showed itself to be a powerful force in the political system of Pakistan and that year may well be said to have been a year of great judicial decisions. Selected Reading Choudhury, G. W. Democracy in Pakistan. Vancouver: Univ. of British Columbia, Haq, Inamul. "Current Strategic Thinking and Pakistan," Pakistan Horizon, XVII: 2 (Second Quarter 1964), Inayatullah, ed. District Administration West Pakistan: Its Problems and Challenges. Peshawar: Academy for Rural Development, Sayeed, Khalid B. "Pakistan's Foreign Policy: An Analysis of Pakistani Fears and Interests," Asian Survey, IV:3 (March 1964), "Pathan Regionalism," South Atlantic Quarterly, LXIII:4 (Autumn 1964), RALPH BRAIBANTI, Professor of Political Science at Duke University, was chief advisor to the Civil Service Academy in Lahore from 1960 to His last visit to Pakistan was in December 1964 and January 1965.