After the great tragedy of the Fall of Dhaka, the remaining Pakistan was, in many ways, like a rudderless ship without a Constitution.
PPP founding chairman Zulfikar Ali Bhutto became the President of the remaining Pakistan and, in the process, earned the rare distinction of becoming the first-ever civilian Chief Martial Law Administrator (CMLA). This was neither shocking nor surprising in a country where the Commander-in-Chief of the Army could assume the highest office of the land, the presidency, while still retaining uniform. The making of the Constitution was, therefore, one of the top priorities for President Zulfikar Ali Bhutto, among other matters of national importance, as he sought to put things together in what remained of Pakistan after East Pakistan had parted ways.
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 on April 14, 1972, at the State Bank of Pakistan building in Islamabad. The first 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 draft Constitution prepared by the Committee sought to eliminate the dichotomy between the fiction and reality of executive authority.
An interim Constitution was adopted by the National Assembly on April 17, 1972, which provided for a presidential form of government under the prevailing circumstances. It also dealt in some detail with the distribution of powers between the Centre and the provinces, namely Punjab, Sindh, NWFP (now Khyber Pakhtunkhwa), and Balochistan.
Besides, the National Assembly adopted a resolution on April 17, 1972, in pursuance of Article 8 of the National Assembly (Short Session) Order, 1972, to prepare a draft of the permanent Constitution by August 1, 1972. Accordingly, a Constitution Committee, headed by Mian Mahmud Ali Kasuri and comprising 24 members, was constituted in light of the resolution.
The Constitution Committee held its first meeting on April 22, 1972. During its deliberations, the Committee remained particularly conscious of Pakistan’s unfortunate constitutional history and past failures. It identified the causes that had led, on more than one occasion, to the breakdown of the constitutional machinery of the country. This had opened the way for usurpers and dictators to assume power at the cost of the people and the state.
The Committee, according to details available from official documents and the Gazette of Pakistan, was of the considered view that the vagueness and dichotomy in past constitutional instruments regarding the source and exercise of power had enabled unscrupulous adventurers to systematically destroy democratic institutions and processes one after the other.
As representatives of the people, elected directly through adult universal franchise for the first time, the Committee members strove to arrive at a constitutional arrangement that would preclude any recurrence of past failures. The draft Constitution prepared by the Committee sought to eliminate the dichotomy between the fiction and reality of executive authority. It also provided effective deterrents against any attempt to abrogate or subvert the Constitution by declaring such acts as High Treason, punishable by death. This provision remains in place despite subsequent amendments, but has, unfortunately, never been invoked or enforced against violators.
During general discussions, there was consensus among Committee members that the future Constitution of Pakistan should provide for a federal and parliamentary form of government in which the executive would be fully answerable to the National Assembly. Parliament was thus made the true embodiment of the will of the sovereign people.
In its second session, which commenced on May 18, 1972, the Committee held general discussions on the Preamble, introductory provisions, Fundamental Rights, Principles of Policy, the Judiciary, and the Services of Pakistan. After deliberating on various proposals and amendments, the Chairman was asked to submit a draft Constitution for consideration in the latter half of June 1972.
However, due to debate in the National Assembly on the Simla Agreement signed by President Zulfikar Ali Bhutto and Indian Prime Minister Indira Gandhi regarding troop withdrawal and the release of Pakistani prisoners of war (POWs), the Committee could not proceed according to its original schedule. It therefore decided, in its meeting held on August 13, 1972, to request an extension until December 31, 1972, for submission of the draft Constitution and its report, which was duly approved by the National Assembly.
Its next meeting was held on October 9, 1972. On that date, Mian Mahmud Ali Kasuri stepped down as Chairman, and Abdul Hafeez Pirzada was unanimously elected as his successor. In view of impending constitutional discussions, for which the President had invited leaders of all parliamentary parties and groups, the Committee decided to defer further deliberations pending the outcome of political talks.
Discussions between parliamentary leaders were held from October 17 to 20, 1972, during which all major constitutional issues of a fundamental nature were settled.
The Constitutional Accord of October 20, 1972, was welcomed by the Committee. It greatly facilitated its work, and the Committee decided to incorporate its provisions into the draft Constitution, as agreed upon by all political parties represented in Parliament.
In light of the Accord, the Committee entrusted the preparation of the draft Constitution to the Ministry of Law and Parliamentary Affairs and the National Assembly Secretariat. Once completed, the Committee resumed discussions from December 2 to December 21, 1972, to consider the draft and proposed amendments.
The Committee decided to incorporate into the Preamble the Resolution passed by the first Constituent Assembly on March 12, 1949, along with recitals reflecting the struggle for democratic and constitutional governance and national unity through an egalitarian social order. The Preamble reaffirmed Quaid-i-Azam’s declaration that Pakistan would be a democratic state based on Islamic principles of social justice. Pakistan was also described as a federation to be known as the Islamic Republic of Pakistan.
More importantly, according to official records, the Committee gave serious consideration to the application of the Constitution to East Pakistan in the prevailing circumstances.
After thorough deliberation, it was decided that the Constitution would apply to the provinces of Balochistan, North-West Frontier Province, Punjab, and Sindh, as well as the Islamabad Capital Territory, the Federally Administered Tribal Areas (FATA), and any future territories included in Pakistan.
It was further decided to include a provision allowing for constitutional amendment to enable representation of the people of East Pakistan in federal affairs when foreign aggression and its effects were eliminated, and participation became possible.
A new article declaring Islam as the state religion of Pakistan was also included.
Another provision regarding High Treason was introduced to eliminate any possibility of constitutional abrogation in the future.
All Fundamental Rights from previous Constitutions were retained, with additional provisions concerning human dignity and freedom of political parties. The Committee also deliberated extensively on civil liberties and property rights. The draft Constitution strengthened individual rights while restricting the misuse of detention laws.
A strong view emerged that unless property rights were made subject to public interest, the country could not achieve social and economic justice. Previous Constitutions (1956 and 1962), it was noted, had paid only lip service to this principle, with property protections acting as a barrier to reform.
The writer is a Lahore-based freelance journalist, columnist and retired Deputy Controller (News), Radio Pakistan, Islamabad, and can be reached at [zahidriffat @gmail.com (mailto:zahidriffat @gmail.com)