The Constitution of 1956

Download pdf (right click and 'save as target') or Continue Reading Online

Introduction:

Thr first constitution was introduced in Pakistan on 23 March 1956.23^rd March as you know is an important day in the history of Pakistan. You would recall that on 23^rd March 1940 The Lahore Resolution was presented for approval in the annual session of ML held at Lahore. So when this constitution was introduced it was decided that it should be introduced on such a day of historical importance. Therefore on 23^rd March this constitution was introduced.

Details:

The 1956 Constitution of Pakistan had 234 articles and 6 schedules in which the whole constitutional framework and principles for governance and power management have been outlined. This Constitution describes Pakistan as Islamic Republic of Pakistan that is the official title of the Pakistani state. If we look at the provisions of the constitution we will find that there is an impact of Govt of India Act1935 and the 1^st Interim constitution of 1947 on this constitution. Some of the articles of the Indian Act of 1935 and the 1^st Interim constitution have been incorporated in this constitution with some adjustments and modifications here and there and in certain cases language is very similar if not the same. So in a way there is some continuity from the previous document to this document. Although it is different from the previous one in most respects but there in some continuity.

Features:

And now we will discuss the basic features of The 1956 Constitution, so that you had an idea of what kind of constitutional system came into being with the introduction of the Constitution. What kind of state institutions were created, what kind of relationship

Of different state institutions with each other with the public at large, how the power was distributed and how the power was to be exercised.

Parliamentary System:

The 1^st significant feature of the 1956 Constitution is that it provides for a parliamentary system of govt.under the parliamentary system of govt the executive authority is vested in the president but he exercises the executive authority on the advice of the PM except in the matters which are left to the discretion of the president. To simplify this statement, under the parliamentary system you draw a distinction between the functions of the head of the state and head of the govt.President is the head of the state and his powers are limited, he performs certain limited functions underhis discretion but most of his powers are exercised by the head of the govt and that is the PM So the PM and his cabinet are the executive heads of the state. He is the head of the state and PM is the head of the govt. and he exercises these powers as prescribed in the constitution although in theory those powers may be assigned to the president. There are certain functions which head of state performs usually these are limited functions cerem-monial functions

The précised nature of the powers of the president under parliamentary system may vary from constitution to constitution; some constitutions give more powers to the president and some constitutions less. However the guiding principle is that the powers of the president would be limited and in most cases ceremonial with the exception of certain discretionary powers( a power in his own judgment)which he exercises i.e. certain non controversial appointment are made by the president, key and important appointments and certain other powers; but the real authority of govt of running the administration day to day affairs of the state is the job of the PM.The runs the govt and that is what was provided in The 1956 Constitution of Pakistan.

In this case the president was to be elected; there was an elected president and he was to be elected by the members of the NA and Pas for a period of 5 years. And the minimum age for the president was 45 years. And under this constitution the office of the president could only be held by a Muslim that was a condition provided in the constitution. The president was part of the legislative process of the state. All laws passed by the parliament were to be presented to the head of the state that was president for his approval. He could sign those; he could refuse or reject those laws. If he signs then those laws become part of the constitution.

He can return the laws for reconsideration to the NA.He has the power to reject a law passed by the NA.and in that case the assembly can again pass that law with or without changes. Then the options of the president in parliamentary system is limited to say no

Prime Minister:

The real power is exercised by the prime minister who was appointed under this system by the president. But there was a condition on that the constitution provided that the president would appoint a person as PM who in his opinion commanded the support of the majority in the NA.So if in the NA a party has got a clear majority then the president is bound to ask the leader of that party to form a govt.but if no party has no clear majority then president has some discretion in inviting the leader of a party or of a coalition to form a govt.But the overriding principle is that the person who is appointed PM must command the majority support in the NA. A follow up of this principle is that if the PM looses majority in the parliament that PM cannot hold on to his office as PM.

Under the 1956 Constitution the president could remove the PM but this power was to be exercised only if the president was sure that the PM doesn’t have the majority in the NA.

In this respect that is whether the PM has the majority support or he has lost the support the president was to be the sole judge. If president is convinced that for one reason or the other the PM has lost the confidence of the NA then he could ask the PM to resign. But there is a convention constitutional convention that he could ask the PM to demonstrate his support on the floor of the house. But under 1956 Constitution, President was not obliged to ask him to show his strength. He could if he convinced can remove the PM.

PM was the person who would run the govt under the 1956 Constitution with the help of a cabinet, cabinet of ministers and whole cabinet ministers some time there are state ministers or deputy minister so the cabinet as a whole including PM were responsible to the NA,It mean that they were answerable to the NA,the members could question them about their policies and in the ultimate analysis the PM and his cabinet must enjoy the support of the majority members and if that is not the case the NA could remove the PM and his cabinet through what is known as vote of no confidence. This means that if majority of the members of the NA voted against the PM he could not continue either he would resign or the president remove him and ask the person who now command the majority to form the govt.and if no govt can be set up then the president can go for general elections.

So this was the situation under the 1956 Constitution that was the parliamentary system of govt.In fact, this was the system functioning before 1956 Constitution was enforced that is under the 1947 Interim Constitution.

One House Parliament:

The 2^nd important feature of this constitution is that it created one house parliament which was named as the National Assembly. It had one chamber one house, traditionally in federal systems of govt there are two houses one for the representation of the constituent units of a federation and 2^nd for the representation of the people. However under the 1956 Constitution one house that is NA was provided; the reason was that with the integration of the province of West Pakistan in October 1955 that we have already discussed that there were two provinces of Pakistan East Pakistan and West Pakistan. So since there were two provinces they decided to form one house the other principle agreed to was parity or equality between the two provinces or which are describe sometime two wings of Pakistan. Parity means that both provinces have equal representation in the NA.So because of integration of East Pakistan and because of the principle of parity only one house was created

NA consisted of 310 members out of these 300 were general seats and 10 were reserved for women and the general seats were to be elected directly on the basis of universal adult franchise and on that time it meant that the people of age 21 or above have the right to vote and ultimately in 1957 the NA opted for joint electorate previously separate electorate as inherited from the British India, but in 1957 he principle of joint electorate was adopted.

This single house Assembly had all legislative powers in law making in respect for the subjects that were either assigned to the federal govt or were in the concurrent list. That we will discuss slightly later and after law has been passed by the NA it would go to the president for his signatures and as I have describe couple of minutes ago president could either sign it return it or reject it. But the Assembly has all the legislative powers.

So for as financial powers are concerned the budget that is the income and expenditures for the federal govt had to be passed by the NA.and the NA had the powers o accept or reject it or reject particular request for funds in the budget it had the power to do that with the exception of consolidated fund list. There are certain items of expenditures for the state of Pakistan. That cannot be changed through simple majority that is consolidated fund list and I give you couple of examples for example salary of the president under the 1956 Constitution was the part of the consolidated fund list, salaries of the judges of the Supreme court and the high court that is superior judiciary, salaries of the members of the federal public service commission and there are certain other you know important offices for which funding is provided and if they want to change these there had to be a special procedure.

So with the exception of this consolidated fund list rest of the budget could be rejected straight away if the assembly wanted. The general tradition in the parliamentary system is if the budget is rejected by the NA, it is consider to be a vote of no confidence in the cabinet and consequently govt collapses. So the assembly had the financial powers to assert its authority.

The overriding authority of the assembly was that it had the control over the executive that is the PM and the cabinet and I have describe that how the NA could remove the PM from the office and had the powers to ask questions, move resolutions, adjournment motions, criticize the govt or make suggestions or proposals for the govt.So the govt was responsible to the NA by the Constitution of 1956.

Federal System:

The 3^rd feature of the 1956 Constitution was the federal structure. This constitution established federation in Pakistan and this federation at that time comprised two provinces which were East and West Pakistan plus other areas which were under the direct control of the federal govt.

The powers were distributed between the centre and the provinces. Three lists of powers or subjects were given in the constitution one which consider the federal list of conclusive items which were the exclusive concern of the federal govt.which means that the NA can legislate all the subjects which mentioned in the federal list.

The 2^nd was the provincial list and provincial assembly could make laws for provincial list. Third list was concurrent list which included the items for which the NA and provincial assembly could legislate. However if the NA had made a law it had priority over the law made by the provincial assembly. This principle of division of subjects into three categories was adopted from the 1^st Interim Constitution and the Govt of India Act 1935.But the only difference was the subjects have three lists.

Provincial Structure:

This constitution provided for a provincial structure, each province had a provincial legislature elected directly by the people and even in the provinces parliamentary system was introduced that is the CM would be the head of the govt.CM is to be responsible to the provincial assembly. The way through PM is responsible to the NA.The governor would be appointed by the president in consultation with the PM.This governors functions were ceremonial; the provincial executive power was exercised by the CM not by the governor.

In this federal that Pakistan adopted centre was strong although provincial autonomy was given to the provinces but centre was strong. Traditionally centre in Pakistan has been strong going back to the British period. So the tradition of the strong centre was existed because there were certain powers with the centre that enabled it to step in the provincial domain. For example emergency powers, if there were a threat to political or economic stability due to internal or external reasons let say war from outside or for certain development within Pakistan that threaten stability of the country the federal govt could exercise emergency powers. It means that if federal govt exercises emergency powers the domain and the autonomy of the provinces could be restricted.

There was another power which allowed the centre to step in the provincial domain or in the provincial field. If for some reason there is a constitutional breakdown in a province that the provincial govt cannot function or central govt has come to the conclusion that provincial govt and CM cannot function in accordance with the constitution then president could ask the governor to take over the administration. So sometimes this could be called as presidential rule and the federal govt in Pakistan did exercise this power to change govt.Although provincial autonomy was there but centre was strong under the 1956 Constitution.

Independent Judiciary:

The next feature of the constitution was the establishment of an independent judiciary. When you have a written constitution as was the case with the 1956 constitution and when you have a federal system of govt then you need an independent judiciary. The judicial system started with the Supreme Court on the top then each province had a high court then there are lower courts under the high courts but the term superior is used only for SC and provincial high courts.

The superior judiciary had to play an important role so far as the interpretation of the constitution was concerned, if there was any problem, if there is a dispute between various govts, provincial govt central govt or different provincial govts then the matter could be taken to the high court or the SC of Pakistan. Superior judiciary also have powers with reference to fundamental rights given in the constitution or if some citizen have complaints against govt the superior judiciary have power to issue writs which means that it could order the govt to do certain things or it could order the govt not to do certain things, it could order the govt through Hybeas Corpus to produce the person before the court. So that the court can adjudicate the matter. So there was an independence judiciary in the 1956 Constitution.

Fundamental Rights:

Another important feature of the constitution pertain to Fundamental Rights under the constitution every citizen irrespective of caste creed or area, they are provided with certain basic and civil and political rights, certain protections and securities are offered by the constitution to all citizens. The constitution provided for certain political rights civil rights for example some of the rights like freedom of press, personel freedom, freedom to express your views ,freedom of religion to practice a religion and to form political organizations, these are all basic rights which are provided in the 1956 Constitution. However Fundamental Rights are not unconditional because the rights of the one person become the obligation of the other person, rights and duties go together, my right is your duty and your right is my duty.

Therefore grant of FR doesn’t mean that a person can do what he wants, within the parameters of the constitution FR are to be exercised and under special circumstances the state can suspend those rights. If there is state of emergency due to any reason the govt through the president can suspend the civil and political rights and to exercise extraordinary power. So in other word FR are to be exercised but within the defined limits. And if a person thinks that his rights are violated by a person or by the govt he can go to the judiciary for the rehabilitation and restoration of the rights. So in away judiciary also play the role of a protector of civil and political rights; primarily it is the duty of the govt to look after the rights of the citizens.

Directive principles of State policy:

There are certain principles given in the constitution as the guidelines as the directives for state policy making for the rulers who are holding state positions in govt.There are certain principles which should serve as guidelines. This constitution provided these principles I may mention one or two here to show that what kind of these principles were one basic principle was that the state would create conditions to enable the Muslims to live in accordance with the teachings and principles of Islam.

There were other principles for providing employment, jobs and looking after the interests of the people. These directive principles were only advisory in nature that is one could not go to the courts that one or two principles are not implemented and court should issue an order. So these could not be challenged in the courts. But these were only guidelines and advisory in nature.

Islamic Character:

The next feature was its Islamic character. The name of the state under the Constitution of 1956 was The Islamic Republic of Pakistan. The preamble of the constitution is based on the Objective Resolution. The Objective Resolution had outlined the basic principles of those constitutional framework and all those principles are incorporated in the preamble. Preamble of a constitution outlined the goal, objectives and the aspirations and desires about the political system you want to create.

Therefore like the OR the preamble which is always in the beginning of the constitution, in fact any constitution starts with a preamble where you declare your intention as to the type of system you wish to create, So preamble therefore is very important to understand the ultimate goals. The sovereignty over the entire universe belongs to Almighty Allah alone and then you find the texts of the OR in the preamble where the framers tried to put together the basic notions of Islamic polity as well as the modern state notions like the democracy and rights.

So the sovereignty of Allah was in the preamble of the constitution of 1956 and it continued to be in the subsequent constitutions. You also have several other provisions in the constitution which link Pakistani political system and constitution to the principles and teachings of Islam. The constitution says that there will be no law in Pakistan that is in conflict with the principles and teachings of Islam and all the existing laws were to brought in conformity with the provisions of Islam. For this purpose a commission was to be appointed that was to look into the existing laws and see if they are in conflict with the existing laws and teachings of Islam. If found some conflict that law has to be changed. So the emphasis on Islam was very clear.

So for as the issue whether any law is Islamic or not the NA had the ultimate power to make or not to make a law. There was no supra national assembly body to decide that ,the assembly was to make laws and make sure that the existing laws would not violate the teachings and principles of Islam. The other alternative was that one could go to the superior if one finds that there is a conflict between the Islamic laws and the ordinary laws of the state of Pakistan. This emphasis reflected the nature of the Pakistan Movement and the desire of the Pakistani leadership as reflected in the OR to identify that the state of Pakistan with Islam.

Working of the Constitution:

Before I conclude let me say a few words about the working of the constitution. This constitution was introduced on 23^rd March 1956 and functioned till 7^th October 1958.OnOctober 7^th the military took over power under the leadership of the then commander in chief General Ayub Khan who abrogated the constitution along with the then president Iskander Mirza and assume power under martial law and this brought an end to the 1956 Constitution. This brings an end to our discussion about the 1956 Constitution.