A strong binding force between nation and state is supposed to be a principal document known as Constitution and world’s oldest Constitution is the Constitution of the United States of America, adopted on the 17th September, 1787, and came into force from the 2nd July, 1788.
Content wise this Constitution is the shortest Constitution of the world – a skeleton Constitution consisting of only seven Articles. The last and the Twenty-Seventh Amendment was ratified on the 7th May, 1992. In this way, the US Constitution is surviving for more than 236 years. The US federation has been grown from thirteen to fifty states. In this way, although being the shortest but the strongest Constitution.
Pakistan has been established on the 14th August, 1947, as a result of the Indian Independence Act, 1947, and adopted the Government of India Act, 1935, as its first Constitution as a stop-gap arrangement till the new Constitution i.e. the Constitution of the Islamic Republic of Pakistan (1956) was adopted and enforced. However, it proved the shortest living Constitution as it was abrogated in 1958 when the Martial Law was promulgated. Then the Constitution of 1962, was made and promulgated on the 1st March, 1962. However, the same abrogated on the 25th March, 1969, on promulgation of second Martial Law. The Interim Constitution (1972) was enacted on the 20th April, 1972, and ultimately the Constitution of the Islamic Republic of Pakistan (1973), the present Constitution, was adopted on the 12th April, 1973, but formally commenced on the 14th August, 1973. It is, however, relevant to point out that today’s Pakistan is not the Pakistan which was established on the 14th August, 1947, as half of Pakistan i.e. East Pakistan was dismembered on the 20th December, 1971.
It is essential to peruse reasons for short survival of federation of Pakistan established on the 14th August, 1947. A Constitution is social contract among the people of nation and state on certain conditions for their unity, peace and order. However, all Constitutions of the Pakistan are bulldozed and adopted under coercion instead of free consent of stakeholders. It is also noteworthy that all the stakeholders who participated in making and enactment of the Constitution were never true representatives of people. Thus, all the Constitutions were never Constitutions representing wishes and will of the people of Pakistan. After dismemberment of Pakistan in 1971, it was not realized that there should be true representative body to make and enact the Constitution. The National Assembly enacted the Constitution of the Islamic Republic of Pakistan (1973) was not having mandate to frame the Constitution. The same issues were again raised which were faced by the Legislative Assembly of 1947, and language was again the prime issue as was in case of Bengali language.
Mr. Mumtaz Bhutto introduced the Sindhi Language Bill, 1972, on the 3rd July, 1972, in the Sindh Assembly whereupon similar language riots were erupted as in case of Bengali language. None had given any plausible justification for said Bill and its enactment whereas in all other provinces there was no such Bill for concerned provincial languages.
Finally, the Sindh (Teaching, Promotion and Use of Sindhi Language) (Application) Act, 1972 (Sindh Act No. XIV of 1972), was passed and enforced from the 8th December, 1972. In this way, linguistically segregating foundation had been laid even prior to adoption and commencement of the present Constitution.
By this it may be assessed whether the framers of the present Constitution visualized a strong or a weak federation. Present Constitution is never a creative and well-thought Constitutional document although many people had claimed or are claiming credit of this Constitution. However, it is only a mixture of the Government of India Act, 1935, the Constitution of the Islamic Republic of Pakistan (1956), the Constitution of the Islamic Republic of Pakistan (1962), the Interim Constitution of Pakistan (1972) and also benefiting from other Constitutional documents by cut-past technology even without facing troubles of re-writing. A large number of parliamentarians and other people were awarded Civil Awards after enactment of the Constitution (Eighteenth Amendment) Act, 1973, which has made the Federation of Pakistan the weakest federation on earth.
A strong federation can only be created and constituted if maximum powers are vested to the Federation or Federal Government. However, now the maximum powers are vested to the Provincial Governments although due to modernization and the fastest means of communication there should be maximum uniform laws throughout the federation to maintain uniformity and ease of social, economic and business life.
In the Government of India Act, 1935, there were Federal, Provincial and Concurrent Legislative lists with residuary powers to the Governor-General and almost similar principle was followed in the Constitution of India, giving birth a strong federation. There were also three Legislative Lists in the Constitution of the Islamic Republic of Pakistan (1956).
In the Constitution of the Islamic Republic of Pakistan (1962) in addition to powers given in the Third Schedule, the Federation had vast powers to make laws not mentioned in the Third Schedule. In the Interim Constitution of the Islamic Republic of Pakistan (1972), there were again three Legislative Lists i.e. Federal, Provincial and Concurrent with maximum powers to the Federal Legislature.
However, while adopting the present Constitution (1973) only Federal and Concurrent Legislative Lists were kept devolving all powers to the Provinces not enlisted in the said Lists giving birth to a powerful provincial autonomy rarely existing in any federal system. However, after the Constitution (Eighteenth Amendment) Act, 2010, the Concurrent Legislative List had been omitted while allowing sharing of policy-making to Provincial Governments for subjects mentioned Part-II through the Council of Common Interests (CCI). Thus, now except the subjects mentioned in the Federal Legislative List (FLL) all other powers devolved to the Provinces although the Provinces are not having capacity even manage subject prior to the Constitution (Eighteenth Amendment) Act, 2010.
Therefore, now the Pakistan is the weakest federation in the world. There are always tendencies of secession where there is a weak federation. The separation of East Pakistan is an example of weak federal system when the provincial leaderships were secessionist and promoting provincial and their personal agendas. Now a period of more than thirteen years is sufficient to review the distribution of powers between the federation and provinces due to present global trends of model laws adopted by the states to create international ease of business and coordination and certainly a good step like merger of erstwhile Tribal Areas is required to maintain and strengthen national unity, harmony and integrity and avert threat to national security of Pakistan.
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The writer Dr G.M Chaudhry is also CEO and Senior Research Fellow at Centre for Research in Political Sciences and International Law Islamabad – can be reached at drgmchaudhryg@gmail.com – WhatsApp 03335152901
