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The Pakistan constitution of 1956

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The Pakistan constitution of 1956

  1. 1. The Constitution of 1956Introduction:Thr first constitution was introduced in Pakistan on 23 March 1956.23 rd March as you know is animportant day in the history of Pakistan. You would recall that on 23rd March 1940 The LahoreResolution was presented for approval in the annual session of ML held at Lahore. So when thisconstitution was introduced it was decided that it should be introduced on such a day of historicalimportance. Therefore on 23rd March this constitution was introduced.Details:The 1956 Constitution of Pakistan had 234 articles and 6 schedules in which the whole constitutionalframework and principles for governance and power management have been outlined. ThisConstitution describes Pakistan as Islamic Republic of Pakistan that is the official title of the Pakistanistate. If we look at the provisions of the constitution we will find that there is an impact of Govt ofIndia Act1935 and the 1st Interim constitution of 1947 on this constitution. Some of the articles of theIndian Act of 1935 and the 1st Interim constitution have been incorporated in this constitution withsome adjustments and modifications here and there and in certain cases language is very similar if notthe same. So in a way there is some continuity from the previous document to this document.Although it is different from theprevious one in most respects but there in some continuity.Features:And now we will discuss the basic features of The 1956 Constitution, so that you had an idea of whatkind of constitutional system came into being with the introduction of the Constitution. What kind ofstate institutions were created, what kind of relationshipOf different state institutions with each other with the public at large, how the power was distributedand how the power was to be exercised.Parliamentary System:The 1st significant feature of the 1956 Constitution is that it provides for a parliamentary system ofgovt.under the parliamentary system of govt the executive authority is vested in the president but heexercises the executive authority on the advice of the PM except in thematters which are left to thediscretion of the president. To simplify this statement, under the parliamentary system you draw adistinction between the functions of the head of the state and head of the govt.President is the headof the state and his powers are limited, heperforms certain limited functions underhis discretion butmost of his powers are exercised by the head of the govt and that is the PM So the PM and his cabinetare the executive heads of the state. He is the head of the state and PM is the head of the govt.and he exercises thesepowers as prescribed in the constitution although in theory those powers maybe assigned to the president. There are certain functions which head of state performs usually theseare limited functions cerem-monial functionsThe précised nature of the powers of the president under parliamentary system may vary fromconstitution to constitution; some constitutions give more powers to the president andsomeconstitutions less. However the guiding principle is that the powers of the president would belimited and in most cases ceremonial with the exception of certain discretionary powers( a power inhis own judgment)which he exercises i.e. certain non controversial appointment are made by thepresident, key and important appointments and certain other powers; but the real authority of govt of
  2. 2. running the administration day to day affairs of the state is the job of the PM.The runs the govt andthat is what was provided in The 1956 Constitution of Pakistan.In this case the president was to be elected; there was an elected president and he was to be electedby the members of the NA and Pas for a period of 5 years. And the minimum age for the presidentwas 45 years. And under this constitution the office of the president could only be held by a Muslimthat was a condition provided in the constitution. The president was part of the legislative process ofthe state. All laws passed by the parliament were to be presented to the head of the state that waspresident for his approval. He could sign those; he couldrefuse or reject those laws. If he signs thenthose laws become part of the constitution.He can return the laws for reconsideration to the NA.He has the power to reject a law passed by theNA.and in that case the assembly can again pass that law with or without changes. Then the optionsof the president in parliamentary system is limited to say noPrime Minister:The real power is exercised by the prime minister who was appointed under this systemby thepresident. But there was a condition on that the constitution provided that the president wouldappoint a person as PM who in his opinion commanded the support of the majority in the NA.So if inthe NA a party has got a clear majority then the president is bound to ask the leader of that party toform a govt.but if no party has no clear majority then president hassome discretion in invitingthe leader of a party or of a coalition to form a govt.But the overriding principle is that the person whois appointed PM must command the majority support in the NA. A follow up of this principle is that ifthe PM looses majority in the parliament that PM cannot hold on to his office as PM.Under the 1956 Constitution the president could remove the PM but this power was to be exercisedonly if the president was sure that the PM doesn’t have the majority in the NA.In this respect that is whether the PM has the majority support or he has lost the support thepresident was to be the sole judge. If president is convinced that for one reason or the other the PMhas lost the confidence of the NA then he could ask the PM to resign. But there is a conventionconstitutional convention that he could ask the PM to demonstrate his support on the floor of thehouse. But under 1956 Constitution, President was not obliged to ask him to show his strength. Hecould if he convinced can remove the PM.PM was the person who would run the govt under the 1956 Constitution with the help of a cabinet,cabinet of ministers and whole cabinet ministers some time there are state ministers or deputyminister so the cabinet as a whole including PM were responsible to the NA,It mean that they wereanswerable to the NA,the members could question them about their policies and in the ultimateanalysis the PM and his cabinet must enjoy the support of the majority members and if that is not thecase the NA could remove the PM and his cabinet through what is known as vote of no confidence.This means that if majority of the members of the NA voted against the PM he could not continueeither he would resign or the president remove him and ask the person who now command themajority to form the govt.and if no govt can be set up then the president can go for general elections.So this was the situation under the 1956 Constitution that was the parliamentary system of govt.Infact, this was the system functioning before 1956 Constitution was enforced that is under the 1947Interim Constitution.One House Parliament:The 2nd important feature of this constitution is that it created one house parliament which was namedas the National Assembly. It had one chamber one house, traditionally in federal systems of govt thereare two houses one for the representation of the constituent units of a federation and 2nd for therepresentation of the people. However under the 1956 Constitution one house that is NA wasprovided; the reason was that with the integration of the provinceof West Pakistan in October 1955that we have already discussed that there were two provinces of Pakistan East Pakistan and West
  3. 3. Pakistan. So since there were two provinces they decided to form one house the other principle agreedto was parity or equality between the two provinces or which are describe sometime two wings ofPakistan. Parity means that both provinces have equal representation in the NA.So because ofintegration of East Pakistanand because of the principle of parity only one house was createdNA consisted of 310 members out of these 300 were general seats and 10 were reserved for womenand the general seats were to be elected directly on the basis of universal adult franchise and on thattime it meant that the people of age 21 or above have the right to vote and ultimately in 1957 the NAopted for joint electorate previously separate electorate as inherited from the British India, but in1957 he principle of joint electorate was adopted.This single house Assembly had all legislative powers in law making in respect for the subjects thatwere either assigned to the federal govt or were in the concurrent list. That we will discuss slightlylater and after law has been passed by the NA it would go to the president for his signatures and as Ihave describe couple of minutes ago president could either sign it return it or reject it. But theAssembly has all the legislative powers.So for as financial powers are concerned the budget that is the income and expenditures for thefederal govt had to be passed by the NA.and the NA had the powers o accept or reject it or rejectparticular request for funds in the budget it had the power to do that with the exception ofconsolidated fund list. There are certain items of expenditures for the state ofPakistan. That cannot bechanged through simple majority that is consolidated fund list and I give you couple of examples forexample salary of the president under the 1956 Constitution was the part of the consolidated fund list,salaries of the judges of the Supreme court and the high court that is superior judiciary, salaries of themembers of the federal public service commission and there are certain other you know importantoffices for which funding is provided and if they want to change these there had to be a specialprocedure.So with the exception of this consolidated fund list rest of the budget could be rejected straight awayif the assembly wanted. The general tradition in the parliamentary system is if the budget is rejectedby the NA, it is consider to be a vote of no confidence in the cabinet and consequently govt collapses.So the assembly had the financial powers to assert its authority.The overriding authority of the assembly was that it had the control over the executive that is the PMand the cabinet and I have describe that how the NA could remove the PM from the office and had thepowers to ask questions, move resolutions, adjournment motions, criticize the govt or makesuggestions or proposals for the govt.So the govt was responsible to the NA by the Constitution of1956.Federal System:The 3rd feature of the 1956 Constitution was the federal structure. This constitution establishedfederation in Pakistan and this federation at that time comprised two provinces which were Eastand West Pakistan plus other areas which were under the direct control of the federal govt.The powers were distributed between the centre and the provinces. Three lists of powers or subjectswere given in the constitution one which consider the federal list of conclusive items which were theexclusive concern of the federal govt.which means that the NA can legislate all the subjects whichmentioned in the federal list.The 2nd was the provincial list and provincial assembly could make laws for provincial list. Third listwas concurrent list which included the items for which the NA and provincial assembly could legislate.However if the NA had made a law it had priority over the law made by the provincial assembly. Thisprinciple of division of subjects into three categories was adopted from the 1 stInterim Constitution andthe Govt of India Act 1935.But the only difference was the subjects have three lists.Provincial Structure:
  4. 4. This constitution provided for a provincial structure, each province had a provincial legislature electeddirectly by the people and even in the provinces parliamentary system was introduced that is the CMwould be the head of the govt.CM is to be responsible to the provincial assembly. The way through PMis responsible to the NA.The governor would be appointed by the president in consultation with thePM.This governors functions were ceremonial; the provincial executive power was exercised by the CMnot by the governor.In this federal that Pakistan adopted centre was strong although provincial autonomy was given to theprovinces but centre was strong. Traditionally centre in Pakistan has been strong going back to theBritish period. So the tradition of the strong centre was existed because there were certain powerswith the centre that enabled it to step in the provincial domain. For example emergency powers, ifthere were a threat to political or economic stability due to internal or external reasons let say warfrom outside or for certain development within Pakistan that threaten stability of the country thefederal govt could exercise emergency powers. It means that if federal govt exercises emergencypowers the domain and the autonomy of the provinces could be restricted.There was another power which allowed the centre to step in the provincial domain or in the provincialfield. If for some reason there is a constitutional breakdown in a province that the provincial govtcannot function or central govt has come to the conclusion that provincial govt and CM cannot functionin accordance with the constitution then president could ask the governor to take over theadministration. So sometimes this could be called as presidential rule and the federal govtin Pakistan did exercise this power to change govt.Although provincial autonomy was there but centrewas strong under the 1956 Constitution.Independent Judiciary:The next feature of the constitution was the establishment of an independent judiciary. When youhave a written constitution as was the case with the 1956 constitution and when you have a federalsystem of govt then you need an independent judiciary. The judicial system started with the SupremeCourt on the top then each province had a high court then there are lower courts under the highcourts but the term superior is used only for SC and provincial high courts.The superior judiciary had to play an important role so far as the interpretation of the constitution wasconcerned, if there was any problem, if there is a dispute between various govts, provincial govtcentral govt or different provincial govts then the matter could be taken to the high court or the SC ofPakistan. Superior judiciary also have powers with reference to fundamental rights given in theconstitution or if some citizen have complaints against govt the superior judiciary have power to issuewrits which means that it could order the govt to do certain things or it could order the govt not to docertain things, it could order the govt through Hybeas Corpus to produce the person before the court.So that the court can adjudicate the matter. So there was an independence judiciary in the 1956Constitution.Fundamental Rights:Another important feature of the constitution pertain to Fundamental Rights under the constitutionevery citizen irrespective of caste creed or area, they are provided with certain basic and civil andpolitical rights, certain protections and securities are offered by the constitution to all citizens. Theconstitution provided for certain political rights civil rights for example some of the rights like freedomof press, personel freedom, freedom to express your views ,freedom of religion to practice a religionand to form political organizations, these are all basic rights which are provided in the 1956Constitution. However Fundamental Rights are not unconditional because the rights of the one personbecome the obligation of the other person, rights and duties go together, my right is your duty andyour right is my duty.
  5. 5. Therefore grant of FR doesn’t mean that a person can do what he wants, within the parameters of theconstitution FR are to be exercised and under special circumstances the state can suspend thoserights. If there is state of emergency due to any reason the govt through the president can suspendthe civil and political rights and to exercise extraordinary power. So in other word FR are to beexercised but within the defined limits. And if a person thinks that his rights are violated by a personor by the govt he can go to the judiciary for the rehabilitation and restoration of the rights. So in awayjudiciary also play the role of a protector of civil and political rights; primarily it is the duty of the govtto look after the rights of the citizens.Directive principles of State policy:There are certain principles given in the constitution as the guidelines as the directives for state policymaking for the rulers who are holding state positions in govt.There are certain principles which shouldserve as guidelines. This constitution provided these principles I may mention one or two here to showthat what kind of these principles were one basic principle was that the state would create conditionsto enable the Muslims to live in accordance with the teachings and principles of Islam.There were other principles for providing employment, jobs and looking after the interests of thepeople. These directive principles were only advisory in nature that is one could not go to the courtsthat one or two principles are not implemented and court should issue an order. So these could not bechallenged in the courts. But these were only guidelines and advisory in nature.Islamic Character:The next feature was its Islamic character. The name of the state under the Constitution of 1956 wasThe Islamic Republic of Pakistan. The preamble of the constitution is based on the ObjectiveResolution. The Objective Resolution had outlined the basic principles of those constitutionalframework and all those principles are incorporated in the preamble. Preamble of a constitutionoutlined the goal, objectives and the aspirations and desires about the political system you want tocreate.Therefore like the OR the preamble which is always in the beginning of the constitution, in fact anyconstitution starts with a preamble where you declare your intention as to the type of system you wishto create, So preamble therefore is very important to understand the ultimate goals. The sovereigntyover the entire universe belongs to Almighty Allah alone and then you find the texts of the OR in thepreamble where the framers tried to put together the basic notions of Islamic polity as well as themodern state notions like the democracy and rights.So the sovereignty of Allah was in the preamble of the constitution of 1956 and it continued to be inthe subsequent constitutions. You also have several other provisions in the constitution which linkPakistani political system and constitution to the principles and teachings of Islam. The constitutionsays that there will be no law in Pakistan that is in conflict with the principles and teachings of Islamand all the existing laws were to brought in conformity with the provisions of Islam. For this purpose acommission was to be appointed that was to look into the existing laws and see if they are in conflictwith the existing laws and teachings of Islam. If found some conflict that law has to be changed. Sothe emphasis on Islam was very clear.So for as the issue whether any law is Islamic or not the NA had the ultimate power to make or not tomake a law. There was no supra national assembly body to decide that ,the assembly was to makelaws and make sure that the existing laws would not violate the teachings and principles of Islam. Theother alternative was that one could go to the superior if one finds that there is a conflict between theIslamic laws and the ordinary laws of the state of Pakistan. This emphasis reflected the nature of the
  6. 6. Pakistan Movement and the desire of the Pakistani leadership as reflected in the OR to identify thatthe state of Pakistan with Islam.Working of the Constitution:Before I conclude let me say a few words about the working of the constitution. This constitution wasintroduced on 23rd March 1956 and functioned till 7th October 1958.OnOctober 7th the military tookover power under the leadership of the then commander in chief General Ayub Khan who abrogatedthe constitution along with the then president Iskander Mirza and assume power under martial lawand this brought an end to the 1956 Constitution. This brings an end to our discussion about the 1956Constitution.