The Constitution of 1962

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1. Background:

On 7 Oct 1958 the military assumed power in Pakistan under the leadership of general Ayub Khan who was the Commander in Chief at that time. The military abrogated the Constitution and the federal and provincial cabinets were abolished. The national and provincial assemblies were also abolished and martial law was imposed in Pakistan.Ayub Khan became the chief martial law administrator and in this way the 1^st military govt came into existence in Pakistan. The military govt had to undertake a lot of tasks, a lot of actions were taken during this period.

One of the major responsibility that the military govt assigned to itself was the framing the new Constitution for Pakistan because ultimately Pakistan was to return to constitutional rule and for that the military govt wanted to frame a constitution for the country. During this period General Ayub Khan who became Field Martial in Oct 1959 issued several statements on working of the governments in the past. The govt circles were generally critical of the parliamentary system of the govt which they thought was not providing stability to the country.

They emphasized that any political system for Pakistan must ensure stability, continuity economic development and gradual development of democracy. These were the primary considerations and by keeping in view the govt decided to take certain measures to move in the direction of framing the constitution for this country.

2. Constitution-Making:

The first step in the direction of setting up a new political system was the introduction of new local govt system which was announced in Oct 1959 one year after the assumption of power by the armed forces.

This local govt system was called as Basic Democracies (Buniadi Jamhooriatain) and under this system people elected 80000 representatives for the local councils and these representatives were divided equally between East Pakistan and West Pakistan. This local govt system had initially five levels but later on it had four levels. Union Councils, Tehsil Councils, District and Divisions. This system worked as the local govt and also performed the development work. The elections to the Basic Democracies were held in Dec, 1959 and Jan, 1960 and in this way the local govts were installed.

The next stage of setting up of a new political framework for Pakistan was Presidential Referendum which was held ob Feb 17, 1960.President Ayub decided to hold Referendum for him to become an elected President and this Referendum was held on Feb 17,1960.In this Referendum the elected members of Basic Democracies voted, at that time the members of the Basic Democracies were called as BD members, So the elected BD members were to vote and in this Referendum Ayub Khan won the election with the overwhelming support and there was no candidate against him.

After holding of the elections Ayub Khan decided to set up a constitution. This constitution was established in Feb, 1960 and this commission was headed by a former chief justice of Pakistan, his name was justice Shahabuddin.

In addition to Shahabuddin who was heading the commission, there were other members and there was equality in representation to both wings of Pakistan that is there were equal numbers of members from East Pakistan and from West Pakistan. This constitution commission was assigned of doing two major things

1 This was to examine the causes of failure of Parliamentary system in Pakistan. You would recall that before 1958 Pakistan had Parliamentary system of govt and when military took over in 1958 Parliamentary system was done away with, so the first responsibility of the commission was to look at the history of Pakistan as it developed from 1957 to 1958 and identify the factors or causes that led to the failure of the parliamentary system.

2: The second major responsibility was to recommend an appropriate system of govt for Pakistan in view of the genius of the people or temperament of the people, level of education, and the kind of political situation that existed in Pakistan in the state of nationhood and also the need for economic development in Pakistan.

In keeping in view the causes of the failure of parliamentary system and these goals or these objectives the commission was to make certain recommendations.

The constitution commission visited different cities interviewed a lot of people, it also issued a questionnaire and people could send their responses and all these responses and interviews which the commission conducted in different cities of Pakistan.

The commission prepared a report a detailed report which was submitted to the President of Pakistan in May, 1961.This report provided an analysis of the political history of Pakistan from1947 to 1958, identifying the causes of the failure of the parliamentary system during the 1^st eleven years.

Then it suggested a number of principles, guidelines for framing a new constitution. This report which was published as the report of the constitution commission is available in the libraries. This report was reviewed by two committees. One committee was comprised of the members of the Presidential cabinet and the second committee was consisted of the senior bureaucrats who looked into the practical aspects of this report how this is to be implemented. The report was also discussed in the governor’s conference and also by other people who were able to get information on this report.

After detailed deliberations of the constitution commission, President Ayub Khan announced the new constitution on March 1^st 1962.The constitution which was announced did not incorporate all the recommendations of the constitution commission, most of its recommendations were incorporated but some were not, and in this way constitution was announced.

The next stage was that in April and May 1962 elections to the national and provincial were held. These elections were an indirect election that is the BD members or the members of the Basic Democracies were to elect their members both in the national and provincial assemblies. So in this way this was the system of indirect elections where people were to elect an Electoral College and the members of that Electoral College would elect the members of the national and provincial assemblies. This was the system of indirect elections and it was introduced in 1962 for the 1962 Constitution.

Once the assemblies that is the national and provincial were elected the Constitution was enforced on 8^th June 1962 and on that day Martial Law was withdrawn, military rule came to an end, and the new constitution which was framed by the military govt of Ayub khan became the Constitution of Pakistan. And from 8^th June 1962 to onward Pakistani system was functioning under this new constitution.

This constitution had 250 articles and 5 schedules. Initially there were 3 and 2 more were added later on in the constitution. Now we will move on to the 3^rd part. In the second part we have discussed how constitution was framed what were the steps and stages in the formulation of the 1962 Constitution.

3. Salient Features:

The type of political system which was created under the new constitution of Pakistan is described as under:

3.1 Title of the State:

When the constitution was enforced on June 8^th 1962 the title of the State was given as the Republic of Pakistan. But when this title was given there was a demand in the assembly and outside the assembly that the title should be the Islamic Republic of Pakistan that is the demand was to go back to the title that was provided in the earlier constitution of 1956.The 1956 Constitution describe the country as the Islamic Republic of Pakistan. So after some thinking on this issue 1^st amendment was made in the constitution which dealt with a number of issues but here one issue is important for us that is the word Islamic were inserted in the title and therefore Pakistan once again became The Islamic Republic of Pakistan.

3.2 Presidential System:

The 2^nd outstanding feature of this constitution was the Presidential System of the govt.In this way the 1962 Constitution marked a departure from the 1956 Constitution which had provided for a parliamentary system of govt, but in 1962 this was replaced with presidential system of govt.

The constitution provided for a very powerful President who had vast administrative powers and other authority to handle the affairs of the State. In a way the President was the focal point of the constitution. It was around him that constitution was revolving. Constitution provided that a person could become or he can contest the election of the president if he had the minimum age of 40 years. He should be a Muslim and qualified to be a member of the national assembly. In this constitution, the president like the members of the national assembly was indirectly elected. The members of the Basic Democracy which were 80000 in number were made the Electoral College for the president. So the BD members would elect the president of Pakistan under the Constitution of 1962, and the term was five for years.

If a president had held the office for more than 8 years, he could seek re-election if, his candidature is allowed or permitted or approved by the national and provincial assemblies. To simplify what I have said, that a person could stay president for two terms consecutive terms one after the other and each term for 5 years, so a person can hold that office for 10 years. Now if, that person wanted to go beyond that is for the 3^rd term then his candidature had to be approved by the national and two provincial assemblies and then he could go for the elections, the way it was provided in the constitution which is indirect elections through the elected members of the Basic Democracies.

Although the term of the president was fixed for 5 years, the president could be removed from his office by the national assembly; this is called the impeachment process or the impeachment of the president that is president could be removed by impeachment. However the impeachment process was very difficult and it was not easy to remove a president from his office until the expiry of his tenure which was 5 years.

Normally in presidential systems the president doesn’t have powers to dissolve the national assemblies or the parliament. Here in the Constitution of 1962 this power was given to the president. President could dissolve the NA call for new elections but there was one condition that is if the president dissolves the assemblies, he would himself go for the elections; he will have to seek his own re-elections.

This for all practical purposes meant that president would not dissolve the NA, because he would also have to get a new mandate, a new vote from Electoral College. So that means that the president would be extremely reluctant to take such a step and for all practical purposes he would not remove the NA although he was given this kind of powers in a conditional manner.

3.3 Powers of the president:

The president was the focal point of the political system, the central piece of the political system. he had executive powers, legislative powers because he was the part of the legislative process and certain judicial powers. The cabinet was appointed by the president and the cabinet was responsible to the president. He could remove a cabinet member anytime he wants and other key appointments in the state were also to be made by the president. For example the appointment of chief justice and judges of the Supreme Court, the three commanders of the armed forces, chairman and the members of the PPSC and some others, but there was a procedure to make these appointments.

But ultimately it was the responsibility of the president to make these appointments. President also had the powers to issue ordinances when the NA was not in session. President also had an emergency power that is if state of emergency had been declared in the country then his powers enhanced. Emergency can be declared in the country for 3 major reasons.

1. External threat, there is war imposed on the country as was the case in Sep, 1965 when India attacked on Pakistan state of emergency was declared in Pakistan.
2. Internal disturbances there are developments within a country which threatens security then emergency powers could be invoked.

A very serious economic crises economic threat to the security of the state

So, in these kinds of situations the president can declare the state of emergency and can assume extra powers. And then he had a free hand to function but within a limit prescribe by the constitution of Pakistan.

3.4 Legislative powers:

President was the part of the legislative process where he would be dealing with legislation but we will discuss his legislative powers when we discuss the NA which is the 3^rd feature of the constitution. The 3^rd feature is that it provided for a single house legislature, like the 1956 Constitution it provided for a single house parliament called NA.And in this NA both the wings of Pakistan had equal representation or what is called the principle of parity.

The strength of the house for the membership of the NA was 156.150 were the general seats and 6 were reserved for women. The general seats were elected through an indirect election that is the BD members constituted the Electoral College for the members of the NA; the same applies to the provincial assemblies. Both the national and provincial assemblies were elected by the Electoral College of BD members.

Minimum age was 25 years and the candidate would be a registered voter in anywhere in Pakistan and a citizen of Pakistan. A had law making powers, could make laws for the issues and powers given to the federal govt.However, all laws made by the NA would go to the president and at that stage before they are passed by the president they are called as bills, so, the president could sign the law which has been passed in the form of bills, reject it or return it for reconsideration to the NA.There was a procedure through which NA could accept the recommendations of the president or could returned the bill to the president, So there was a procedure to deal with the situation, but the president was the part of the legislative process.

3.5 Financial powers:

So for as financial powers were concerned these powers were limited. The NA could vote on new expenditure it means those items in the budget which are included for the first time that is why they are new expenditures. It has the power to accept or reject the new expenditure. Here were 2 other categories of expenditures which it could not turn down

The consolidated fund list which included salary for the officers of certain important Offices under the state of Pakistan. This was the same in the 1956 constitution however the 1962 provided for recurring expenditure, this expenditure meant the expenditure which was coming from the previous years. This was for multi year projects.

3.6 Federalism:

The 1962 established a federal system of govt which meant two types of govt govt at the centre and govt at the provincial level there were two provinces at that time. So there were two govts functioning within the limits defined by the constitution.

1962 Constitution provided one list of subjects, one set of powers were clearly laid down in the constitution and those were the powers of the central govt.So the one list of subjects pertains to the powers of the central govt and the rest of the powers were given to the provincial govts.However the federation under the 1962 Constitution had a strong centre, because there was a powerful president. A president who has enough powers to manage the central as well as the provincial affairs.

And if we look at the emergency powers then there is greater freedom to intervene in the provincial affairs. So, it was a strong centre under the 1962 Constitution, although provincial autonomy was there, a provincial setup a governor with his cabinet and governor was appointed by the president. And governor would appoint the cabinet with the approval of the president and each province had its legislature for law making purporses.Here the authority of the governor was strong, he was the head of the govt at the provincial level. So we can say that there was provincial autonomy administration but centre was strong under the 1962 Constitution.

3.7 Principles of policy:

The 5^th feature is that the constitution provided principles for policy making. These principles were guidelines for policy makers and these principles emphasized national solidarity that principles would be designed to promote national solidarity and the policies would take care the people of the backward areas, and other principles like opportunities would be provided to people to take part in national life. Emphasis on Islamic way of life, on Islamic system, Islamic teachings and on Islamic principles. These were the principles given in the constitution. And these principles were simply guidelines for those were to make policies for Pakistan.

3.8 Fundamental Rights:

The next feature was Fundamental Rights, like the previous constitution this constitution also provided certain political and civil rights to the people and these were the standard rights which are given in democratic systems. Right to speech, right to organization, right to movement, protection of life, security, freedom of religion and such rights which are part of any democratic setup.

These were there and these could be invoked in a court of law. But I may mention here that when constitution was enforced these fundamental rights were given in the constitution as principles for law making not as fundamental rights. Then there was a demand that these should be fundamental rights rather than principles, and due to this demand in the NA and outside the NA the principles for law making were changed into fundamental rights under an amendment to the constitution and in this way the standard civil and political rights became the part of the constitution.

3.9 Political Parties:

The 9^th feature pertains to political parties. When constitution was enforced in June 1962 political parties were not allowed in Pakistan. There was a ban on Political parties and the elections to the national and provincial assemblies in April and May in 1962 were party less elections. Now once the NA began to function the members thought that Pakistan must have political parties. Therefore a political party’s act was passed in 1962,to provide for working of political parties under the constitution of Pakistan and after the passing of this act the political parties began to function in Pakistan.

3.10 Islamic Provisions:

The next feature pertains to the Islamic Provisions of the constitution. I have discussed about the title of the state of Pakistan which was Islamic Republic of Pakistan. If we look at the preamble of the constitution, it reflects the Objective Resolution and constitution assigns sovereignty to all over Universe to Almighty Allah and it is to be exercised within the limits prescribed by Him in the Quran and Sunnah.If we look at the principles of policy making there are clear provisions for Islamic way of life and Islamic principles for example state is to enable the people to lead their lives according to the principles of Islam and teachings of Islam. Two important institutions were created

Advisory council for Islamic Ideology:

It comprised the scholars of Islam law and politics and this was to make sure that the laws made were in conformity with Islamic principles. But this was an advisory body; this was to advise to the parliament the NA and the President.

Islamic Research Institute:

The 2^nd important institute was the Islamic research institute which was set up under this constitution for devoting itself to research and instructions in Islam for insisting the reconstruction of the Muslim society on truly Islamic lines. In other way we could say that this constitution emphasized on the Islamic character of the polity.

Working of the constitution:

This constitution functioned from June 8^th 1962 to March 25^th 1969.