Constitutional Experiments, 1947-1973

Pakistan's struggle for a stable democratic order can be told through its constitutions. The country has had three (1956, 1962, 1973), abrogated two, and amended the third more than twenty times. This lesson covers the first quarter-century — from independence to the 1973 Constitution still in force today.

What kind of democracy did Pakistan inherit?

In 1947 Pakistan inherited:

• The Government of India Act, 1935 as its working constitution (with adaptations) until a new one was framed.
• The Westminster parliamentary tradition — but minus the institutional depth that British India had accumulated for itself.
• A politically dominant Muslim League weakened by the deaths of Jinnah (1948) and Liaquat Ali Khan (1951).
• A growing bureaucratic-military axis that competed with elected politicians for influence.

The Objectives Resolution, 1949

The first Constituent Assembly passed the Objectives Resolution on 12 March 1949 under Prime Minister Liaquat Ali Khan. It laid down the philosophical foundations of Pakistan's constitutional order:

The Objectives Resolution became the preamble of every Pakistani constitution, and was made a substantive part of the 1973 Constitution by Zia in 1985 (Article 2-A).

The 1956 Constitution

After nine years of constitution-making, the second Constituent Assembly enacted Pakistan's first home-grown constitution on 23 March 1956 (commemorated as the first Republic Day). Key features:

• Federal parliamentary system — Prime Minister as chief executive; President as ceremonial head.
• Islamic Republic — the country's official name became the Islamic Republic of Pakistan.
• One Unit — the four western provinces had already been merged into a single West Pakistan in 1955 to balance East Pakistan's demographic weight.
• Equal representation of East and West Pakistan in the National Assembly (155 seats each, plus 10 minority seats).
• Federal court system with a Supreme Court at apex.

The Constitution lasted only two and a half years before President Iskander Mirza abrogated it on 7 October 1958 — handing power to General Ayub Khan.

The doctrine of necessity

Even before the 1956 Constitution, judicial doctrine had begun to enable executive overreach.

In Federation of Pakistan v. Maulvi Tamizuddin Khan (1955), the Federal Court held that Governor-General Ghulam Muhammad's dismissal of the Constituent Assembly was valid, drawing on the maxim salus populi suprema lex (the welfare of the people is the supreme law). This was the first formal articulation of the doctrine of necessity, later relied on to validate:

• The 1958 martial law (Dosso case, 1958)
• The 1977 coup (Nusrat Bhutto case, 1977)
• The 1999 coup (Zafar Ali Shah case, 2000)

In Asma Jilani v. Government of Punjab (1972) the Supreme Court overruled Dosso and held that Yahya Khan's regime had been illegal — a brief revival of constitutional jurisprudence between Dosso and Nusrat Bhutto.

The Constitution is the supreme law of the land and any extra-constitutional usurpation of power is a tyrannical and illegal act, not entitled to the protection of any doctrine of necessity.

The 1962 Constitution — Ayub's experiment

Ayub Khan promulgated a new Constitution on 1 March 1962, drafted under a commission led by former Chief Justice Muhammad Shahabuddin. Key features:

• Presidential system — the President exercised both head-of-state and head-of-government powers.
• Indirect elections — the President and National Assembly were elected by 80,000 Basic Democrats (later raised to 120,000), not directly by the people.
• Federal in name but heavily centralised in practice.
• One Unit retained — and resented in the east.
• Limited fundamental rights, expandable by parliament.

The 1962 Constitution accommodated Ayub's authoritarianism within a republican framework. Resistance came from East Pakistan — where Sheikh Mujibur Rahman's Six Points (1966) demanded full provincial autonomy — and from a coalition of urban politicians and students in the west.

Ayub resigned in March 1969, handing power to General Yahya Khan, who abrogated the 1962 Constitution and dissolved One Unit.

The 1970 election and the road to 1973

Yahya issued the Legal Framework Order, 1970, restoring four provinces in the west and East Bengal as the fifth federating unit, and promising direct general elections on adult franchise. These were held in December 1970 — Pakistan's first such elections.

• Awami League won 160 of 162 East Pakistan seats, gaining an absolute majority in the 300-seat National Assembly.
• Pakistan Peoples Party won 81 of 138 West Pakistani seats.
• The military regime and the PPP refused to transfer power to Mujib — the immediate trigger for the Operation Searchlight crackdown of 25 March 1971 and the eventual creation of Bangladesh.

The 1973 Constitution — the consensus document

After the December 1971 surrender, Bhutto reconvened the surviving West Pakistani members of the 1970-elected National Assembly as a constituent body. The 1973 Constitution was passed unanimously on 10 April 1973 and enforced on 14 August 1973.

It re-established a federal parliamentary system with:

• Bicameral legislature (National Assembly and Senate).
• Independent judiciary with constitutional jurisdiction.
• Fundamental Rights and Principles of Policy.
• A clear federal-provincial-concurrent legislative split (with concurrent matters favouring the centre, until the 18th Amendment).
• Islamic provisions including the Council of Islamic Ideology.

Despite suspensions in 1977-85 and 1999-2002, the 1973 Constitution has remained the legal foundation of Pakistan's political order for fifty years.

Why constitutional democracy struggled

By the early 1970s, Pakistan's democratic order had been tested by:

1. Delayed constitution-making (1947-56) under weak political leadership.
2. The doctrine of necessity enabling repeated executive coups.
3. One Unit and unequal representation alienating East Pakistan.
4. Bureaucratic-military alliance displacing elected politicians.
5. Provincial and ethnic asymmetries unresolved by formal federalism.

The next lesson examines how Pakistan tried to consolidate democracy in the post-Zia era — and where the project still stands.