After the great tragedy of the fall of Dhaka in December 1971, the remaining Pakistan seemed like a rudderless ship without a Constitution.
Another war with India had broken just when a draft of the Constitution was on the anvil during the last days of country’s second military ruler General Agha Muhammad Yahya Khan. However, the draft Constitution never saw the light of the day.
PPP Founding Chairman Zulfikar Ali Bhutto was handed over power by General Yahya to become the President of the remainder Pakistan and in the process also earn the rare distinction of becoming the first-ever Civilian Chief Martial Law Administrator. Making a new Constitution was one of the top priorities for the new President, among other matters of national importance.
The National Assembly, as a consequence of the general elections held on December 7, 1970 and the separation of East Pakistan, held its first session no earlier than April 14, 1972 at the State Bank of Pakistan building in Islamabad. The first NA session was attended by 144 members from West Pakistan and two from former East Pakistan, Nurul Amin and Raja Tridev Roy, who had opted for Pakistan.
The interim Constitution was adopted by the NA which provided for a Presidential form of government under the circumstances which prevailed at that time. Under this provision the National Assembly was not to be dissolved earlier than August 14, 1973. Besides, the National Assembly had also adopted a Resolution to prepare a draft of the permanent Constitution. Accordingly, a Constitution Committee, headed by Mian Mahmud Ali Kasuri and comprising 24 members, held its first meeting on April 22, 1972.
During its deliberations, the Committee was particularly conscious of the unfortunate constitutional history of Pakistan and past failures. It identified the causes which had led, on more than one occasion, to the breakdown of the constitutional machinery of the country. This had opened the way for the usurpers and dictators to assume power at the cost of the oppressed people and the country.
As the people’s representatives, the Committee members strived to arrive at a constitutional arrangement which would preclude any recurrence of past failures. The draft of the Constitution tried its utmost to do away with the dichotomy between the fiction and reality of the executive authority.
It also provided effective deterrents against any attempt to subvert the Constitution by declaring this offence as committing High Treason carrying a punishment for the crime, the death penalty. The provision still exists, despite several other amendments here and there, but, unfortunately it has never been invoked and implemented or enforced against the violators.
Many rulers after Bhutto tried to amend the Constitution according to their narrow views. It is essential that in the future, we do everything in our power to avoid this situation
There was also a consensus among the Committee members that the future Constitution of Pakistan should provide for a Federal and Parliamentary form of government in which the Executive will be fully answerable to the National Assembly.
In the course of its second session, which commenced from May 18, 1972, the Committee held general discussions regarding the Preamble, the introductory provisions, Fundamental Rights, Principles of Policy, the Judiciary and the Services of Pakistan.
However, due to the debate in the National Assembly on the Simla Agreement signed by President Bhutto and Indian Prime Minister Indira Gandhi for the withdrawal of troops and the release of Pakistani Prisoners of War (POWs), the Committee could not proceed.
On October 9, 1972, Mian Mahmud Ali Kasuri stepped down as the Chairman and Abdul Hafeez Pirzada was unanimously elected as his successor. In view of the impending constitutional discussions for which the President had invited the leaders of all parliamentary parties and groups, the Committee decided to defer its further deliberations till the outcome of the political talks.
The discussions between the parliamentary parties’ leaders had greatly facilitated the task of the Committee which, accordingly, decided to incorporate in the draft of the Constitution the provisions of the Constitutional Accord.
The Committee decided to incorporate in the preamble the Resolution which the first Constituent Assembly had passed on March 12, 1949. The preamble further reaffirmed Quaid-e-Azam’s declaration that Pakistan would be a democratic State based on the Islamic Principles of social justice. The Committee also described Pakistan as a Federation to be known as the Islamic Republic of Pakistan.
After due deliberations, the Committee decided that the provisions of the Constitution should apply to the Provinces of Balochistan, North-West Frontier, Punjab and Sindh, the Islamabad Capital Territory and Federally-Administered Tribal Areas (FATA) and such other States and territories as are, or may be included, in Pakistan’s future. A new Article that Islam shall be the State Religion of Pakistan was also included.
Under Article 5 “any person who abrogates or attempts or conspires to abrogate, subvert or attempts or conspires to subvert, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of High Treason”. Additionally, it was specifically provided that there shall be no protection under the Fundamental Rights to any offender from punishment retrospectively with effect from March 23, 1956.
The Committee in particular deliberated upon the provisions relating to civil liberties and property rights. A strong view was expressed that unless rights to property were made subject to the public interest, the country could not achieve social and economic justice. Accordingly, the Parliament was given the authority to prescribe a ceiling on property. The Parliament was also empowered to make laws for resumption and confiscation of property acquired by unfair means.
Many times, subsequent rulers tried to amend the Constitution according their narrow views. It is essential that in the future we do everything in our power to avoid this situation, and protect our precious Constitution for our coming generations.
The writer is Lahore-based Freelance Journalist, Columnist and retired Deputy Controller (News) Radio Pakistan, Islamabad and can be reached at zahidriffat@gmail.com
Published in Daily Times, June 25th 2018.
Source: https://dailytimes.com.pk/257489/the-making-of-the-1973-constitution/
