A Lincoln Inn’s lawyer, Quaid-i-Azam always upheld the constitution and laws in the highest esteem. For Pakistan too, the constitutional struggle was the way forward. Similarly, Quaid-i-Azam considered constitutional democracy as the most suitable governance system for Pakistan.
Quaid-i-Azam Mohammad Ali Jinnah, the founder of Pakistan, finally achieved the dream of Pakistan on August 14, 1947 after a long political struggle in the parliamentary traditions. With reference to parliamentary traditions, it does not mean that the British did introduce the same parliamentary traditions in India as they were prevalent in Britain. No, it was not the case. Only a glimpse of it was introduced in British India and that also, only since the implementation of the Government of India Act 1909. Some more reforms were introduced under the Acts of 1919 and 1935, but all the federal and provincial legislatures functioned under the veto power of the Governor-General at the federal level and governors in the respective provinces. The Speaker used to be elected from amongst the parliamentarians. The elections to these assemblies were held after every three years, save certain special circumstances. The last elections under the British rule were held in 1945-1946. It was on the basis of these elections that Constituent Assembly of Pakistan was formed in 1947 and the Provincial Assemblies of Sindh, Punjab, Khyber Pakhtunkhwa (then NWPF), East Pakistan were also formed on the basis of these elections. Thus, when Pakistan was created, the state inherited these elected bodies. As for the province of Balochistan, the provincial assembly was formed under the Constitution of 1956, but under the Act of 1935, there was no provision of Provincial Assembly for Balochistan. Instead, there was Shahi Jirga composed of chiefs of all major tribes of Balochistan coupled by the Quetta Municipal Committee. An extraordinary joint session of the Shahi Jirga and elected members of the Quetta municipality was held on June 29, 1947 in Quetta to decide on the issue of whether Balochistan should join the Hindustan Constituent Assembly or the Constituent Assembly of Pakistan. Fifty-four members unanimously decided to join the Constituent Assembly of Pakistan. Eight non-Muslim members were absent.1 The administrative head of Balochistan was known as Agent to Governor-General.
Quaid-i-Azam became part of this constitutional and parliamentary democracy in January 1910 when he was first elected as a member of the Imperial Legislative Assembly being the Federal Legislature of the country. It was after a lot of struggle on the part of Quaid-i-Azam that the parliamentary traditions came to be established in British India. Though with the creation of Pakistan, a lot yet remained to be done to make a new Constitution for Pakistan based on the parliamentary traditions of a modern state. In this paper, I have explained that Quaid-i-Azam wanted constitutional supremacy in the country and he also wanted parliamentary democracy to flourish in Pakistan. At the same time, he also believed that the Constitution of Pakistan should not only protect all state interests, but also the interests of an Islamic state in the modern world as determined in the Holy Quran and traditions of the Holy Prophet (PBUH). Quaid’s thoughts, sayings, and his career in the parliament need to be studied so that the students of constitutional and Islamic polity are not confused and a clear picture emerges before them.
Creation of Constituent Assembly of Pakistan
As part of the Partition Plan of June 3, 1947, Constituent Assembly of Pakistan was created by the Government of India Act 1947 passed by the British Parliament in July 1947. First session of the Pakistan Constituent Assembly was held in Karachi on August 10-14, 1947. Quaid-i-Azam was elected as its first President on August 11, 1947. The Assembly had to perform two functions: first as a constitution making body for Pakistan; and second, as stated by Quaid-i-Azam in his first speech after election as its President, as “Federal Legislature of Pakistan”.2 “The first and the foremost thing that I would like to emphasize”, the Quaid continued, “is this – remember that you are now a sovereign legislative body and you have got all powers”.3 The concept of sovereignty in the modern Islamic state needed to be further clarified which was later done by Prime Minister Liaquat Ali Khan in the Objectives Resolution, passed by the Constituent Assembly in March 1949. Under the 18th Constitutional Amendment of 2010, this resolution has been made part of the Constitution of Pakistan 1973 in Article 2A.4 Under the Objectives Resolution, it has been recognized in the Islamic sense that sovereignty belongs to Allah Almighty which is delegated to the state of Pakistan through its people who exercise it by electing their representatives to the Federal Legislature, which is also a constitution making body or the body which can amend the constitution by two-third majority of its members. In this way the federal legislature is the sovereign body of the state of Pakistan. In his first address to the Constituent Assembly, the Quaid also made it clear: “I shall always be guided by the principles of justice and fair play without any, as is put in the political language, prejudice or ill will in other words, partiality or favouratism. My guiding principle will be justice and complete impartiality, and I am sure that with your support and cooperation, I can look forward to Pakistan becoming one of the greatest nations of the world”.5 Until the time of framing a new constitution, Pakistan adopted the Government of India Act 1935 with certain amendments as the provisional constitution of Pakistan. The state of Pakistan was run under this adopted Constitution of 1935 until the time of promulgation of Constitution of Pakistan 1956.
Pakistan to be an Islamic State
Quaid-i-Azam declared in his radio address to the people of the United States of America in February 1948 that Pakistan was going to be an Islamic State. Specifying his thoughts in this connection, the Quaid said: “The Constitution of Pakistan has yet to be framed by the Pakistan Constituent Assembly. I do not know what the ultimate shape of this constitution is going to be, but I am sure that it will be of democratic type, embodying the essential principles of Islam. Today, they are as applicable in actual life as they were 1300 years ago. Islam and its idealism have taught us democracy. It has taught equality of men, justice and fairplay to everybody. We are the inheritors of these glorious traditions and are fully alive to our responsibilities and obligation as framers of the future constitution of Pakistan. In any case, Pakistan is not going to be a theocratic state – to be ruled by priests with a divine mission. We have many non-Muslims – Hindus, Christians and Parsis – but they are all Pakistanis. They will enjoy the same rights and privileges as any other citizen and will play their rightful part in the affairs of Pakistan”.6
The Role of State and the Federal Government
Under Article 7 of the Constitution of Pakistan 1973, “The State means the Federal Government [Majlis-i-Shoora (Parliament)], a Provincial Government, a Provincial Assembly and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess”.7
The federal government is the custodian of the state and enjoys supreme authority over all provincial and local governments. Therefore, the federal government of Pakistan is the custodian of the State. In his presidential address of August 11, 1947, the Quaid also made it clear: “The first duty of the government is to maintain law and order, so that the life, property and religious beliefs of its subjects are fully protected by the State”.8 The other duty of the state, the Quaid emphasized is: “Now, if we want to make this great state of Pakistan happy and prosperous, we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor”.9 Quaid also wanted that the state should not discriminate people of any particular area over the other, but what Quaid actually wanted was that people belonging to different areas and regions of Pakistan should be treated equally without any discrimination of “colour, caste or creed” because they all are “equal citizens of this State with equal rights, privileges and obligations”.10
The question arises why a government comes into power under the constitution? Answering, himself, Quaid, in his public address at Dacca (now Dhaka) on March 21, 1948, said: “The government can only have for its aim one objective – how to serve the people, how to devise ways and means of their welfare, for their betterment”.11
In his Dhaka address of March 21, 1948, Quaid touched another vital issue as to how the government comes into power and how can it be removed from power. In both of these matters, the Quaid said that the government should come into power through elections to the federal and provincial assemblies. But if the government does not perform in the interest of the people, the procedure outlined in the constitution should be adopted through the vote of no confidence, which is to be exercised as provided in the constitution. If the government fails to perform before the expiry of its term, it should be removed by the parliament as provided in the constitution. “Constitutionally, it is in your hand to upset one government and put another government in power if you are dissatisfied to such an extent”.12
When Pakistan came into being, the federal government was formed on the basis of the elections of 1945-1946. On this basis, members of the Constituent Assembly of Pakistan were notified by the Government of Lord Mountbatten. It was also on this basis that the first session of the Constituent Assembly of Pakistan was notified by Viceroy’s office. All this was done on the basis of parliamentary democracy which means that supremacy of the parliament is an integral part of the Constitution of Pakistan. The government formed on the basis of majority in the parliament was to continue in office according to the ideals of Quaid-i-Azam. Moreover, the Government formed in this way was to be termed as people’s government. Speaking at a function arranged by the gazetted officers at Chittagong on March 25, 1948, Quaid explained: “It is people’s Government, responsible to the people more or less on democratic lines and parliamentary practices”.13
How Can the Government be Changed?
When Quaid-i-Azam visited East Pakistan (currently Bangladesh), he noticed that there was certain ill-will against the East Pakistan government headed by Khawaja Nazimuddin, the Chief Minister. The opposition was holding demonstrations against this government. Responding to this issue, the Quaid warned that the provincial government cannot be removed through street mongering or mobbing. Speaking on this issue in his farewell address to the people of East Pakistan over Radio Pakistan on March 28, 1948, Quaid said: “The Government and its policy may be changed by the votes of the elected representatives of the Provincial Legislative Assembly. Not only that, but no government worthy of the name can for a moment tolerate such gangsterism and mob rule from reckless and irresponsible people, but must deal with it firmly by all means at its disposal.”14
The government is required to act fairly and independently. It should not think in terms of the people who voted for them or not, but act fairly. The government must adopt fair attitude towards people of all walks of life. The government was required to function keeping the above party considerations in mind. Addressing the gazetted officers at Government House Peshawar on April 14, 1948, Quaid advised: “Everyone should realize that there is a fundamental and vital change of the entire Government and the Constitution under which we are working. You should try to create an atmosphere and work in such a sprit that everybody gets a fair deal, and justice is done to everybody. And not merely should justice be done but people should feel that justice has been done to them”.15
Role of Bureaucracy Under the Government
A government can smoothly function if the bureaucracy of the country duly supports them. Speaking in this connection on April 14, 1948, Quaid said: “Whichever Government is formed according to the Constitution and whoever happens to be the Prime Minister or Minister coming into power in ordinary constitutional course, your duty is not only to serve the Government loyally and faithfully, but at the same time, fearlessly maintaining your high reputation, your prestige, your honour and the integrity of your service. If you will start with that determination, you will make a great contribution in the building up of Pakistan, of our conception and our dream – a glorious State and one of the greatest nations in the world”.16
Quaid’s Efforts for Constitutional Advance Under the Colonial Period
Under the Government of India Act 1909, Jinnah was elected, as already mentioned, as a member of the Imperial Legislative Council in January 1910. This Council was a sort of a federal parliament whose members were elected from all the provinces of India. Quaid-i-Azam was elected against the Muslim seat from Bombay. He fearlessly represented the case of Muslims in the federal legislature. At the same time, he worked for constitutional advance so that the largest number of representatives should go to the assemblies and work for freedom. Quaid-i-Azam wanted freedom of the country through constitutional process, which is why he earned fame as a great constitutionalist. His belief was that all the political parties should join hands with each other and work against the colonial masters collectively. But for practical purposes, he worked for the unity between two major parties – Indian National Congress and All India Muslim League. This unity was to be based on some constitutional document. That is why, he first tried to unite the Congress and the Muslim League in 1915 and through the meetings of their committees and sub-committees, evolved a joint charter which was approved in Lucknow in December 1916. This charter is known as the Lucknow Pact 1916, approved by both the Congress as well as the Muslim League, which meant that the British Government should frame a new constitution for India on the basis of basic points agreed upon between these two major political parties. The nature of this constitutional arrangement was attainment of home rule, which meant freedom in internal affairs and administration of India by which the representatives elected by the people of India should run the government under the home rule policy. Only foreign affairs, currency, defense and communication were to be in the hands of the British Viceroy and his ministers. The Lucknow Pact 1916, being drafted mainly by Jinnah, worked as a great pressure over the British government. The British government first tried to hamper the unity between Congress and Muslim League through Gandhi and Jawarharlal Nehru. Still, as a pressure from the Lucknow Pact, a new constitutional document known as Government of India Act 1919 was introduced by the British Parliament. In this way, the British government tried to meet the demands of Indian politicians to some extent, but the unity between the Congress and Muslim League was shattered after 1921. Under the conflicting circumstances, Jinnah still had hoped to unite Congress and the Muslim League, but all his efforts were in vain due to the Nehru Report of 1928. This shattered the hope of Jinnah to create unity amongst different political ranks of the country. In 1916, the Congress leaders were interested in unity, however, in 1928, the Congress leaders were no longer in favor of unity with the Muslim League leaders as they pressurized the British to ignore the Muslims and hand over power to the Congress leadership. Jinnah opposed them and worked for bringing unity amongst different Muslim political parties. During 1930-1932, the British tried their best to evolve a common constitutional formula by holding three Round Table Conferences in London in 1930-1932, but all these efforts failed because the Congress leaders were not ready to continue to grant separate electorates to the Muslims and other minorities in India under the new constitution. When these conferences failed, there was pressure from Quaid-i-Azam and Allama Mohammad Iqbal and leaders of other minorities, the British government – at their own and as already granted under the Acts of 1909 and 1919 – announced the Communal Award in 1932 and White Paper in 1933 by which minorities’ right of separate electorates was restored. In order to influence the British government, Quaid-i-Azam prolonged his stay in London for four years and when he was sure enough that the British Parliamentary Committee had accepted the Muslims’ and other minorities’ demand of separate electorates, the Quaid sailed from London to Bombay in December 1934. Thus, the Government of India Act 1935 was later passed by the British Parliament. The elections held under this Act in 1945-1946 proved to be such in which the Muslim League candidates for provincial and federal legislatures won with 90 percent majority.
Thus, the elections of 1945-46 are very crucial in the history of not only Pakistan Movement but in the overall freedom struggle in British India. While it justified Quaid-i-Azam’s claim for Pakistan demand for the Muslims of South Asia, it also established beyond any doubt that All India Muslim League (AIML) was really the sole representative political organization of Muslims of British India. It also established Jinnah’s claim that Indian National Congress was, without any reservation, a political organization of the Hindus of South Asia. Jinnah’s oft-repeated utterances that Congress was representative of all the Hindus of British India stood justified by these election results. It also confirmed that smaller Muslim political organizations, apart from AIML, like the Ahrars, Khaksars, Jamiat Ulema-i-Hind, etc., lost in the elections despite Congress’ funding, and their candidates forfeited their securities against the Muslim League candidates.17
The writer is Ex-Prof. Quaid-i-Azam Chair & Director, National Institute of Historical & Cultural Research, Centre of Excellence, Quaid-i-Azam University, Islamabad.
1. Times of India, June 24, 1947.
2. S. M. Burke, Jinnah: Speeches and Statements 1947-1948, Karachi, Oxford University Press, 2000, p.25.
4. M. Abdul Basit, The Constitution of the Islamic Republic of Pakistan, Rawalpindi, Federal Law House, 2022, p. 23.
5. S. M. Burke, Jinnah: Speeches and Statements 1947-1948, p. 29.
6. Quaid-i-Azam Mohammad Ali Jinnah – Speeches and Statements as Governor-General of Pakistan 1947-1948, Islamabad, Govt. of Pakistan, Ministry of Information & Broadcasting, Dept. of Films and Publications, 2012 (first published in 1989). Foreword of this book has been written by Pakistan’s former Prime Minister, Benazir Bhutto, p. 157.
7. Basit, Constitution of Pakistan 1973, p. 25.
8. S. M. Burke, Jinnah: Speeches and Statements 1947-1948, p. 26.
9. Ibid., p. 27.
10. Ibid., pp. 27-28.
12. Ibid., p. 145.
13. Ilbid., p. 162.
14. Ibid., p. 173.
15. Ibid., pp. 194-195.
16. Ibid., p. 192
17. Riaz Ahmad, Pakistan Movement: New Dimensions, 1935-1948, Islamabad, Alvi Publishers, 2017, p. 211.
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