Daily Times

The dismissal of the North-West Frontier Province (NWFP, now Khyber Pakhtunkhwa) government has long been cited as an example of an early streak of authoritarianism in Pakistan’s history. It is said much of Pakistan’s later crisis of democracy has its roots in this decision. This sound bite has been used by many critics of Jinnah as being one grave example of lack of statesmanship at a critical juncture. I have a different view and I will endeavour to explain why.

We must examine whether Jinnah’s actions vis-à-vis the NWFP Assembly in that first week of independence were unconstitutional. If these actions were not unconstitutional, were these undemocratic and malicious under a veil of constitutionality? Finally, if we conclude that these actions were either unconstitutional or undemocratic, were these actions responsible for Pakistan’s subsequent crisis of constitutionalism and democracy, which manifested itself in the form of prolonged periods of direct military rule in the country.

To begin with, it is important to note again that Pakistan opted to omit Section 93 powers, which allowed the central government to dismiss provincial legislatures. India, on the other hand, retained these powers and used the same on several occasions to dismiss provincial legislatures. The dismissal of the Khan Ministry in NWFP, however, was not a dismissal of the legislature. The governor of NWFP, Sir George Cunningham, acting on the advice of the Governor-General under Section 51(5), dismissed Dr Khan Sahib as the chief minister and invited Abdul Qayyum Khan of the Muslim League to form the government. Therefore, the issue of constitutionality of the action does not arise per se.

Now the real question is whether this meant a dismissal of a democratically elected government and whether this action taken at the behest of Jinnah was indeed undemocratic or malicious. To address whether the decision was democratic or not, let us consider the facts. Dr Khan Sahib became the premier after the 1946 election on the basis of 30 members in a House of 50. Out of these 30 members, 12 were Hindu MLAs. It may be pointed out that the weightage given to the Hindu community was 24 percent against an actual population of six percent in the province; 11 of these 12 Hindu members moved to India at independence. Of the remaining 19, two belonged to the Jamiat Ulema-i-Hind, an ally of the Congress Party. Congress proper had won only 16 seats out of a total of 38 Muslim seats. Therefore, Dr Khan Sahib enjoyed the support of 19 members in a House of 39, already a minority government. Later the Jamiat Ulema-i-Hind members also parted company and so did a Congress member Mian Jaffar Shah, leaving Dr Khan Sahib with only 16 members in a House of 39. As for the procedure adopted to effect a ministry and get the requisite support, the newly formed League ministry had to show its numbers by the next budget session, which it did.

Even otherwise Dr Khan Sahib had lost all moral authority to govern after the referendum a couple of months before independence, which had returned 51 percent votes in the Muslim League’s favour. While in recent years some have tried to argue that the referendum was questionable, the truth is that Congress had not only endorsed the referendum but had successfully procured the removal of Sir Olaf Caroe, who it deemed inaccurately as pro-League, as governor, replacing him with Sir Robert Lockhart to preside over the said referendum. Even Dr Khan Sahib had confidently declared that if the League received 30 percent of the votes in the election, he would resign. Dr Khan Sahib himself agreed that the referendum was as proper or improper as the election that had gotten him into power and this was promptly reported to the Viceroy by Rob Lockhart, Congress’ governor of choice. Lockhart went on to advise Dr Khan Sahib that the right and proper thing to do was to resign immediately. The governor also expressed concern that the continuation of a ministry so utterly hostile to the new state would be untenable and that the Viceroy should consider dismissing the NWFP government under section 93, which would be the best course available. In public, of course, both Dr Khan Sahib and Bacha Khan continued to declare that the referendum was improper and fraudulent. To this end, it is important to quote Kanji Dwarkadas, who in his letter of July 26, 1947 said: “An American journalist who has returned to Delhi from the Frontier has told me that…the Frontier referendum was run on fair lines and not as Dr Khan Sahib and Abdul Ghaffar Khan have explained it. He found Dr Khan Sahib to be muddled headed and both Khan brothers are now rather sore with the Congress for having let them down.”

As a liberal democrat with close to four decades of parliamentary experience in the Indian legislature, Jinnah was repulsed by the idea of dismissing any Legislative Assembly. Therefore, in early August, he suggested instead that if given a chance the Muslim League could form a coalition government with non-Muslim representatives, which would give the Muslim League legislative majority and thereby bypass the Section 93 dismissal. As mentioned earlier, this Section 93 was in any event not available after August 14, 1947. Rob Lockhart was of the view that if a change was to be made, in the fitness of things, it had to be made quickly because he recalled that Dr Khan Sahib had warned of a mass movement, which he “would try and keep non-violent”. Lord Mountbatten failed to heed either advice and consequently it fell to the Governor-General of Pakistan to take a decision that he had hoped to avoid.

The Khan brothers were openly hostile to Pakistan. They had boycotted the referendum citing that it did not have the option of NWFP remaining independent or worse joining Afghanistan. Bacha Khan had on June 27, 1947 called for an independent and free Pathan state based on Islamic principles and social justice. Dr Khan Sahib meanwhile continued to distribute arms licences to his party men. Similarly, consider the police intelligence report of August 5, 1947 that said: “It is rumoured in some circles that Congress and Red Shirt supporters might start civil disobedience after the 15th of August if the Congress Ministry is made to vacate the office. It is reported that the Faqir of Ipi will declare jihad against the British and the Hindus after the Id and that the Zalmai Pakhtoon Party would fight the Muslim League for the attainment of Pathanistan” (See No 220, National Documentation Centre, Islamabad, 1996, 263-264, The Referendum in NWFP).

In the circumstances, which government was going to allow an openly hostile government to continue in power, especially when that government had lost its majority in the Legislative Assembly? In the US for example, President Abraham Lincoln had dismissed not one but five state legislatures in the South in the immediate aftermath of the civil war. Jinnah, on the other hand, had not dismissed the legislature but had ensured an in-House change. Therefore, in the view of this writer at least the dismissal of the Khan Ministry was constitutional, democratic and morally responsible.

(To be continued)

The writer is a lawyer based in Lahore. He is also a regular contributor to the Indian law website http://mylaw.net and blogs on http//globallegalforum.blogspot.com and http://pakteahouse.net. He can be reached at yasser.hamdani@gmail.com