Lessons from Constitutional History

Lesson from Constitutional History

Acts/facts occupy specific political contextual frames of time and space. With the passage of time facts are interpreted differently at different times and under different circumstances, depending on the ever-changing lenses of various social political and economic schools of thought. As a student of law, and particularly of constitutional law and history of Pakistan, I wish to make certain factual observations. One can go deep into dialectical debates about reactions to certain actions, though unconstitutional and illegal but needed and required at a specific time in the ‘Supreme National Interest’, now more popularly known as the ‘Law of Necessity’. But the historical facts indelibly remain that they occurred.

[Mr. Anwar Syed’s letter appeared in your paper as response to comments made by Mr. A.R.Siddiqui regarding Mr. Jinnah’s role as Governor General vis-à-vis than Prime Minister Liaqat Ali Khan. He made these comments on article “Constitutional History of Pakistan” by Mr.S.M.Zafar published earlier and subsequently certain observation were made by some other foreign based writer. This provoked me as well to comment on this historical issue. As a student of law and particularly of constitutional law and history of Pakistan, I am afraid that I could not agree more with the observation of Mr. A.R.Siddiqui for unveiling a very important fact. Political scientists may view such acts/facts in a specific political contextual frame of time and space and one can also go deep in the dialectical debates about reaction to certain actions, though unconstitutional and illegal but needed and required at a specific time in the “Supreme national interest” which is popularly called the “Law of necessity”. But historical facts remain as they occurred and that remain as it is. With passage of time facts are interpreted differently at different times in different circumstances by various social, political and economic schools of thoughts.]

The constitutional history of Pakistan is as chequered and shameful as it is relatively short. One need not travel very far in the past to find its roots in the year 1861.This was the year when the Indian Councils Act was enacted. This was the first ever push for self government and of representative government which was not quite substantive democracy, but rather its obverse. Under this Act some Indians were nominated in the Viceroy’s advisory, and a lower level, council. The proportion of British nominated non-official Indians in the councils was increased by another Act in 1892. In 1909, the Minto-Morley reforms extended the links between higher and lower councils. “Thus building bridges which local men with power and pelf…”, as Pakistani scholar Ayesha Jalal writes, the lower casts and Muslims were the main construct.

This Act not only survived but was extended under 1919 Montague-Chelmsford reforms and later on all these were incorporated into the Government of India Act of 1935.This Act in its character was the largest Bill ever passed by the mother Parliament-- the British House of Commons. It was aptly commented upon, “the overriding character of an imperial power which set apart its subjects in block with interests fundamentally antagonistic to rulers”. This Act was primarily designed to exert effective central control on a colony through the offices of Viceroys and later on, through Governor Generals. These offices were meant to exercise the real despotic power while the physical centre was at six months distance from Indian shores. The government of India Act of 1935 was the lengthiest piece of legislation ever debated and passed by the House of Commons. It took around eleven years to make, pass and enact. It was declared to be the most monstrous legislation by opposition MP’s in the House of Commons, and not fit for a civil society. Treasury benches had to exert protracted effort to convince the House that the legislation was not for the civil society of England but to spread Pax-Britannica to the colony of India, the jewel in the crown of the British Empire. And this is the same Act—the Government of India Act 1935-- was adopted as the Constitution of India and Pakistan on the eve of transfer of power (not independence, as is wrongly held till to date).

The so-called constitutionalist, Mr. Mohammad Ali Jinnah, stepped into the shoes of the Representative of Her Majesty the Queen of England, as Governor General, the chief executive of the newly born dominion of Pakistan. He was also elected President of the Constituent and Legislative Assembly. This Assembly in its own blend was elected indirectly on the basis of limited franchise. In addition, Mr. Jinnah was also the president of the ruling party, the Muslim League. With regard to his status as a great constitutionalist, an opinion may aptly be quote: “There cannot be any constitutionalist in pre partition days as there was no constitution as such. A lawyer well versed in Anglo-Saxon law has a different connotation”. Another fact remains that the British of transfer of power deleted the clause in the Act of 1935 which gave the Viceroy the power to dismiss the provincial government or legislative council. This truncated Act then became the Constitution of Pakistan. An early clause remained wherein the Viceroy, in his own discretion, had power to take any actions in the pursuance of maintenance of law and order and the policies of her Majesty the Queen of England. Another fact is that no viceroy ever invoked the said clause, in spite of the fact that period between 1935 to 1947-- from the British point of view-- was the most turbulent period in British colonial history, but Mr. Jinnah invoked that very clause and dismissed the elected ministry (not the assembly) in N.W.F.P. It took quite long period of time to launch Muslim League government in that province, in which period no elections were held. Such actions by Mr. Jinnah may well be seen as being very much desired and nationalistic, but it must also be seen as the invocation of the ‘Law of Necessity’ for the first time in Pakistan as well.
Facts remain that Mr. Jinnah also presided over cabinet meetings, took most decisions unilaterally and, under the 1935 Act, acted as the representative of the Queen. The role of the Prime Minister remained ceremonial. The facts also say that after Mr. Jinnah’s unfortunate demise, Mr. Liaqat Ali Khan got incorporated a clause in 1935 Act which empowered the dismissal of governments and assemblies and continued to use viceregal powers by dismissing the Punjab and Sindh governments.

The final scene witnessed that Governor General Ghulam Mohammad, invoked the same clause in 1954 to dismiss Prime Minister Nazimuddin which was earlier used by Mr. Jinnah to dismiss the N.W.F.P. government. And then the Governor General gave the death blow to the Constituent and Legislative Assembly by putting a lock on the gates and surrounding the building with police when its members came to attend the session. And for doing so the same clause of the same monstrous Act was invoked which had been invoked earlier. The legitimization of such acts by courts and by public opinion is also a sad and shameful fact of history.

Mr. Jinnah’s actions may be brimmed with acute desire of nation building but definitely his viceroyal attitude and acts vis-à-vis other institution of states are factual and will remain the facts of the constitutional history of Pakistan. A student of history of constitution will have to oversee the successive chain of events to learn from the past and prepare to prevent such events antagonistic to polity and society do not occur in future. We must all learn from history and shun prejudice towards individual personalities. Seeing Mr. Jinnah historically and objectively might call for a partial revision in the dominant perspective which regards him a constitutional lawyer. One must not avoid those facts which may be unfortunately responsible for the dismal political and constitutional scenario at present on the screen of the country called Pakistan.

But we never seem to learn from history.