CONSTITUTION MAKING IN PAKISTAN 1972-73 – A SINGULAR TRIUMPH FOR THE COUNTRY

Dr. Ghulam Nabi Kazi

The third week of December 1971 was indeed a very dark time in the country’s history. Events had taken place in rapid succession – half the country had been torn asunder, the second in command and de facto head of the Army had been ridiculed and heckled by junior officers of the same institution, the President’s House had undergone some strafing – not by any real or perceived enemy but by patriots – just to send a message across to its main occupant. The Information Secretary was strongly advised not to announce the President’s new constitution over the radio.

All these messages were well taken. President Yahya was forced to summon Ghulam Mustafa Khar after 1.30 am at night and ask him to request Zulfikar Ali Bhutto to return to Pakistan. He did so realizing the odds. Before leaving Pakistan, Bhutto had agreed with Khar not to take any message from Khar seriously if sent from the President’s House. In Rome, Bhutto wanted a clear proof of the government’s intention to transfer power to him; he asked for a plane sent from Pakistan to fetch him from Rome. Yahya Khan agreed. After that it only remained to prepare and fill in the instruments of succession.

A hardworking and supposedly brilliant official who had worked his way into the provincial and later the central civil service of the country and was then holding the senior rank of Cabinet Secretary was drawing up those very succession instruments. He reportedly opined that Zulfikar Ali Bhutto should be made the President but not the Chief Martial Law Administrator. After taking over both the positions though, Bhutto announced the retirement of several top generals including his predecessor followed up by press releases on the retirement of certain high officers of the navy and air force. He, however, retained his predecessor’s Military Secretary and Director General ISI. He then called Dr. Mubashir Hasan and told him he would oversee the country’s civil service and advised him to facilitate the first change. Picking up the phone, Dr. Hasan called Ghulam Ishaq Khan. “This is Dr. Mubashir Hasan. The President has desired that you should immediately report to Karachi as Governor of the State Bank of Pakistan.” When the latter pointed out that to do that, he would need to retire as he was then on a 2-year extension, the good doctor told him to do so in the public interest. Khan joined as Governor State Bank on the morning of December 22, 1971 after fulfilling all the necessary formalities. He had been sent almost 900 miles away from Rawalpindi and Islamabad to the not-so-remote Karachi.

Ghulam Mustafa Khar was appointed as Governor and Martial Law Administrator of the Punjab while Mumtaz Ali Bhutto, Hayat Muhammed Khan Sherpao and Ghaus Bux Raisani took up the same positions in Sindh, NWFP and Balochstan, respectively. The new and rather brief central cabinet was sworn in on the 24th December comprised of only 12 men including President Bhutto and Vice President Nurul Amin. The ministers were (in that order) J. A. Rahim, Mahmud Ali Kasuri, Justice Faizullah Kundi, Dr. Mubashir Hasan, Shaikh Muhammad Rashid, Raja Tridiv Roy, Malik Meraj Khalid, Abdul Hafeez Pirzada, Rana Muhammad Hanif, Maulana Kausar Niazi and Abdul Qayyum Khan (the last two were taken up in March and April 1972, respectively). Pirzada was moved from Information to Education when the fall of Dacca was shown on national television and the new Amy Chief Lt. Gen. Gul Hassan Khan complained. Pirzada, however, stuck by his action and called those who criticized it as ostriches. Rafi Raza was named Special Assistant to the President.

M. H. Sufi one of the four civil service advisers to President Yahya Khan was made Cabinet Secretary. M. M. Ahmed was made adviser on foreign loans, while a renowned chartered accountant Feroze Qaiser was inducted as Economic Adviser. S. Ghiasuddin Ahmed continued as Secretary General Defense while the services of Justice A. R. Cornelius the author of the now infamous LFO and the ‘new’ constitution were dispensed with. Some other prominent and early ‘falling of wickets’ entailed Attorney General Syed Sharifuddin Pirzada, State Bank of Pakistan Governor S. U. Durrani, Chairman National Press Trust Lt. Gen. (Retd.) Habibullah Khan Khattak and Chairman PIDC M. A. K. Alizai. The latter was succeeded by Said Ahmed, an officer of exceptional merit who had been eased out of PICIC for not giving a loan to a beautiful lady close to President Yahya Khan. Aziz Ahmed was taken out of retirement and made Secretary General of Foreign Affairs while his brother G. Ahmed a former Interior Secretary was taken up as Adviser on Police Reforms. Z. A. Suleri was removed as Editor in Chief of the Pakistan Times – that being one of the National Press Trust newspapers. Thus, the initial team had been installed.

It is necessary to pause here to consider what had been going on in the mind of Zulfikar Ali Bhutto vis-à-vis constitutional realities. When Pakistan came into being, constitution making was apparently not high on the list of priorities of our foremost policymakers. The first Constitution of the country that made Pakistan a republic upgrading it from a British Dominion took a whopping nine years entailing three Governors General and three Prime Ministers (actually 5 individuals because Khwaja Nazimuddin held both offices). The first constitution was approved by the Constituent Assembly in 1956 as a joint effort of President Iskander Mirza and Prime Minister Chaudhry Mohammad Ali. After its abrogation in 1958 alongside a declaration of martial law, Ayub Khan first prepared a hurriedly made document in 1960 followed by a proper constitution in 1962. While in comparison to the 1962 constitution that was tailormade to suit the interests of an all-powerful individual, the 1956 constitution had greater merit. Ironically, however, both these constitutions were abrogated by the very persons who had given assent to them namely, Presidents Iskander Mirza and Ayub Khan making it imperative to declare them without any good. In hindsight, it is intriguing that Mirza and Ayub did not even wait for their successors to abrogate the instruments that had kept them in power, removing any proof of their legitimacy so to say. General Yahya Khan ruled by the sole support of a flimsy Legal Framework Order and Martial Law Regulations.

At the time when Yahya Khan was relinquishing charge of the office of the President, in the absence of Martial Law there was no document to save it from reverting to the Government of India Act of 1935 read with the Indian Independence Act of 1947. Well into the 25th year of its existence, Pakistan had no legal umbrella to fall back on. Bhutto being a brilliant lawyer and constitutional expert was well aware of this precarious balance in which the country was hanging. For him and his team, constitution making would be the foremost challenge and priority.

Bhutto’s constitutional team including Kasuri and Pirzada, supported by Hayat Sherpao, Ghulam Mustafa Jatoi, Dr. Mubashir Hasan and Rafi Raza. This group also constituted the negotiating team of the government side with the opposition which included certain formidable leaders. Around the first week of March 1972, a basic accord was reached with the NAP-JUI leaders like Khan Abdul Wali Khan the de facto leader of Opposition, Khair Bux Marri, Ghaus Bux Bizenjo, Arbab Sikander Khan Khalil and Maulana Mufti Mehmood. Seasoned politicians from other political parties included Sherbaz Khan Mazari, Ghulam Ghaus Hazarvi, Shah Ahmed Noorani, Prof. Ghafoor Ahmed and Sardar Shaukat Hayat Khan, just to name a few. The Constituent Assembly had enough talent across both sides but was somewhat crippled by a lack of understanding. If Bhutto said it was the night, it became incumbent for Wali Khan to declare it was the day – such a situation usually does not augur well for any agreement let alone one on such a fundamental issue like the constitution. History will nevertheless record that an accord was reached between the two sides on thorny issues not only for the interim constitution in April 1972 but also for the permanent one a year later.

On March 6, 1972 the government and opposition sides agreed on the fundamentals of the interim constitution and incidentally agreed to Martial Law till August 14, 1972. The opposition had erred here; very soon stalwarts like Wali Khan and Bizenjo were under fire for agreeing to a somewhat prolonged Martial Law mainly for the communist or ultra-left elements. Meanwhile, sensing the situation correctly, Bhutto made all his MNAs sign a resolution calling for Martial Law till the 14th August 1972 to consolidate reforms. The stratagem worked! The opposition was forced to approve the Interim constitution on April 21, 1972 to facilitate the lifting of Martial Law four months before the time they had somehow agreed. It was a win-win situation. Pakistan would go in its silver jubilee with a constitution approved by almost every member present. The Supreme Court judgment in the Asma Jilani case declaring Yahya Khan as a usurper but recognizing the need for the Constituent Assembly to play its role proactively may also have expedited the approval of the constitution by exerting pressure on both sides of the house. Bhutto has used Martial Law mainly to retire 1,300 civil servants in a hastily and somewhat erroneously drawn up list and the nationalization of basic and heavy industries. However, that is a topic for another day.

This was also approximately the time when Law Minister Mian Mehmud Ali Kasuri’s honeymoon ended with Bhutto. Being a late entrant to the PPP, Bhutto was a little wary and of late weary of him. It is interesting to recall that M. M. Ahmed and Mehmud Ali Kasuri were the first to call on the new President Bhutto on December 21, 1972. While the first meeting with Ahmed passed most cordially, there were problems during Kasuri’s meeting. The latter wanted to be posted to Lahore as provincial chief executive for the Punjab, but Bhutto somewhat distrusted him and argued that he needed him more in Rawalpindi and Islamabad to help with the constitution making. A couple of days later, he wanted to be Senior Minister, but Bhutto could not supersede J. A. Rahim for a relatively new entrant and so the relationship deteriorated further. While the debate between the presidential and parliamentary forms of government may have something to do with this, it was essentially the distrust between the two men which catalyzed the virtual end of their meaningful relationship. When the interim constitution was approved by the National Assembly, Kasuri was not even in the house. On May 1, 1972 a new cabinet was sworn in excluding him. The same day NAP-JUI governments were installed in NWFP and Balochistan with the additional courtesy of their party governors in both provinces. However, this honeymoon would be over too in mid-February 1973 incidentally following a visit by Princess Ashraf Pahlavi. Meanwhile, Sherpao and Raisani took over as Central (soon to be Federal) Ministers.

Subsequently, the government made it known that they favored a parliamentary type of constitution. This was by and large appreciated by most parties. The constitution negotiating team now spearheaded by the young Abdul Hafeez Pirzada. It was usually a bumpy ride. One of the constitutional proposals agreed by all parties related to a committee of the Senate being empowered to impeach judges of the superior judiciary somewhat akin to the Indian Constitution. As news of this proposal hit the newspapers, Justice Hamoodur Rehman Chief Justice of Supreme Court called Pirzada to tell him that they needed to meet urgently. Pirzada told him he was visiting Lahore soon and would call on him. Rehman stressed the urgency of the matter mentioning that three provincial chief justices were also with him. At the time, there were three high courts in the country for Sindh-Balochistan, Punjab and NWFP.

What followed was a stormy meeting of Pirzada with Justice Hamoodur Rehman, Justice Tufail Ali Abdul Rehman, Justice Sardar Mohammad Iqbal and Justice Ghulam Safdar Shah. Starting the discussion. Tufail Rehman said: “Mr. Minister you want us to be humiliated by politicians and retain our conscience at the same time?” The three stalwarts and leading lights of our judiciary then proceeded to hand in their resignations. The discomfiture of the young though firebrand minister can only be imagined. He beseeched Chief Justice Hamoodur Rehman to make the three provincial heads of the judiciary withdraw their resignation. Rehman said he would do so only if Pirzada used his good offices to prevail upon other political parties to withdraw this proposal. Rising to the occasion, Pirzada did so without even informing his boss Zulfikar Ali Bhutto and saved the government from a colossal embarrassment.

To cut a long story short, the negotiating team soon reported to Dr. Mubashir Hasan the Finance and Economic Affairs Minister that only an accord on financial aspects was pending. Earlier capacity constraints in certain provinces had forced the central government to retain a long list of constitutional responsibilities or subjects in a second Concurrent List meaning they were provincial responsibilities but would be given support by the Federal Government for a period of 12 years until provincial capacity was built.

It may be interesting that the biggest hint to constitution making came not in any legislative forum but in the Federation of Pakistan Chambers of Commerce and Industry. President Bhutto went there in early 1972 and expressed that he was a firm believer in provincial autonomy, but he didn’t want the Federal or Central Government to be a widow! He had said it all. As detail after detail of the proposed constitution came out in the open, this position was vindicated further.

The government presented the ingenious proposal for a Council of Common Interests and later the National Finance Commission along with equal representation of all provinces in the Senate, which while empowering the role of the provinces, equally highlighted the role of the Federal Government in inter-provincial coordination.

Dr. Mubashir Hasan was provided highly elucidative and useful reports on each sector of the economy prepared by the Finance Secretary AGN Kazi and Deputy Chairman Planning Commission Qamarul Islam. The reports were not in the way they are in nondevelopment (recurrent) or development budget books but more clearly designed to tell the real story. Telling the two gentlemen to leave the two briefs with him, the good doctor began to peruse them with absolute concentration. It appeared to him that NWFP and Balochistan were clearly the poor relatives of Punjab and Sindh as evinced by the figures in front of him. The next day in the meeting with the NAP-JUI leaders he was essentially speaking their language totally disarming them and significantly agreed to give Balochistan the royalty for natural gas against a certain formula. By the time Zulfikar Ali Bhutto came to the meeting, the opposition was already convinced of their imperative to agree with the government side. As per a prior agreement with Mubashir, the President announced to not only give royalties for natural gas but petroleum as well. The accord was virtually reached!

Subsequently, the government was itself amazed on its success and wondered why the provincial governments were not more dogmatic in their approach on provincial autonomy. The fact was that Ghulam Faruque who had represented the Central government throughout his long career as first Chairman of PIDC and WAPDA, Commerce Minister and Governor of East Pakistan was the main spokesman and technical guru of the NAP as Finance Minister of NWFP. If Bhutto didn’t want the Federal Government to be a widow, he couldn’t have found a better though inadvertent advocate than Faruque.

Now it only remained to tie up certain loose ends. The Jamaat-i-Islami had representation in the National Assembly but had sworn enmity with the government. With the help of intermediaries, Ghulam Mustafa Khar arranged a very long but secret meeting of Bhutto with Maulana Maudoodi leaving the latter most concerned about his own position within his party. His leaders told him that they couldn’t agree to anything with Bhutto and would amplify their point in a huge public meeting called for the purpose. When Maudoodi told Khar of this, the latter infiltrated his own people in the public meeting creating confusion and encouraging Maudoodi to negotiate with the government. Several references to Islamic provisions in the constitution must have satisfied him and it is possible he may have added some specific articles in this regard.

Then there was a case of a Maulvi from Balochistan who insisting on money for his vote. An annoyed Bhutto said that he would personally give him the money. He called the MNA and threw a bundle of notes in his direction forcing him to go down on his knees and collect the money at the cost of his self-respect. S. M. Zafar has also narrated the poignant story of Justice (Retd) Abdul Hamid, a retired judge of the Peshawar High Court who was staying at the Inter-Continental Hotel and discussing the article on equality and equity with him. In the morning he was found dead from cardiac arrest, but the article was ready for incorporation in the Constitution. Zafar has also spoken of quid pro quo from all sides while framing the constitution.

When the constitutional accord was finally signed on April 12, 1973, the relationship of the government and opposition sides were at its lowest ebb ever, yet they both took the step in the supreme national interest. At the cost of some repetition, the main actors were Bhutto, Pirzada, Rafi Raza, Kausar Niazi, Yahya Bakhtiar, Abdul Qayyum Khan and Major General Jamaldar Khan in government, and Arbab Sikander Khan Khalil, Ghous Bux Bizenjo, Maulana Mufti Mehmood, Sardar Shaukat Hayat Khan, Sardar Sherbaz Mazari, Ghulam Faruque, Shah Ahmed Noorani and Prof. Ghafoor Ahmed. It was a victory for professionalism and a classic book example on how to develop a mutually shared vision and move along more concrete lines to actually draft and develop the single most important document in the Republic. Although the constitution given formal assent on August 14, 1973, has witnessed two full fledged Martial Laws, and several other extra constitutional actions in the intervening 45 years or so, and has undergone more than a score of amendments, it has truly emerged as the binding force for all the people of Pakistan.

Acknowledgement: Considerable material has been taken in the foregoing from the books authored by Dr. Mubashir Hasan, Rafi Raza, Sherbaz Mazari and several others in addition to television interviews and other evidenced based sources.