The history and evolution of Indo-Pak constitutions

Judging by the history of the constitutions, I'd say Pakistan is yet to deliberate and reflect over its existence

'Politea' or regime also known as constitution is more than simply a set of formal structures and institutions. It consists of the entire way of life, the moral religious practices, the habits, customs, and sentiments that make a people what they are. The regime constitutes an ethos, that is to say a distinctive character that nurtures distinctive human types. Every regime or constitution shapes a common character type with distinctive traits and qualities. For example when the Frenchman Alexis de Tocqueville studied the American Constitution in his Democracy in America, he first started with  their formal political institutions as enumerated in their Constitution, such things as the separation of powers, the division between state and federal government and so on. He didn't just stop there but went on to look at such informal practices as American manners and morals, their tendency to form small civic associations, their peculiar moralism and religious life, their defensiveness about democracy and so on. All of these intellectual and moral customs and habits helped to constitute the democratic regime or the Greek 'politea'.

This politea or constitution describes the character or tone of a society; what a society finds most praiseworthy, what it looks up to. One cannot understand a regime or constitution unless one understands what it stands for, what a people stand for, what they look up to as well as its structure of institutions and rights and privileges. So the Constitutions of India and Pakistan may well give us a clear understanding of what is the character and tone of its people and what they stand for. 

Apart from the fact that the Constitution of India was adopted by the Indian Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950; the most famous fact is that its architect was Dr. Bhimrao Ramji Ambedkar, born into a low Dalit caste of Mahar (the untouchables of India discriminated against, well into this day). This very fact brings forth all the promising possibilities of the Indian democratic systems that can elevate a low caste to its most honourable position despite the never ending effect of the ancient caste system and the continuous struggle to end it. Also the Constitution of India declares it to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them. The constant progress of a former colony out of its oppressive and repressive past is evident by the fact that 'socialist' and 'secular' were added to the definition in 1976 by the 42nd constitutional amendment (mini constitution). 

It is also one of the most global documents in the sense that its architects were most heavily influenced by the British model of parliamentary democracy and a number of principles were adopted from the Constitution of the United States of America, including the separation of powers among the major branches of government and the establishment of a Supreme Court. The principles adopted from Canada were federal government with strong centre and also distribution of powers between central government and state governments along with placing residuary powers with central government. Directive principle of state policy was adopted from Ireland and Germany has the distinction of giving the principle of suspension of fundamental rights during emergency. Australia gave the idea of a Concurrent list of shared powers as well as some of the terminology for the preamble. There is also a Judicial Review in the Constitution of India from the judicial review of the United States, which makes the longest constitution of the world one of its vibrant ones also. In addition, Article 370 of the Constitution of India is a law that grants special autonomous status to Jammu & Kashmir. 

The very history of the Constitution of Pakistan shows the shaky foundations on which it was built and how much the country still strives to find its middle ground. The approved Constitution of 1956 was abrogated in 1958 due to a military coup d' etat. Pakistan's second constitution was approved in 1962. It granted executive power to the president and abolished the office of the prime minister. It also institutionalized the intervention of military in politics by providing that for twenty years, the president or the defense minister must be a person who had held a rank not lower than that of lieutenant-general in the army. The 1962 constitution was suspended in 1969 and abrogated in 1972. The 1973 constitution was the first in Pakistan to be framed by elected representatives. Unlike the 1962 constitution it gave Pakistan a parliamentary democracy with executive power concentrated in the office of the prime minister, and the formal head of state - the president - limited to acting on the advice of the prime minister. After another coup in 1977, the constitution was held in abeyance until it was "restored" in 1985 but with an amendment (the Eighth) shifting power from the parliament and the Prime Minister to the president. Another Amendment (Seventeenth) in 2004 continued this shift, but in 2010, the Eighteenth amendment reduced presidential powers, returning the government to a parliamentary republic. 

Contrary to 1956 and 1962 articles, several ideas in the Constitution were new and guaranteed security of each citizen of Pakistan. First part of the Constitution introduces the definition of State, the idea of life, liberty and property, individual equality, prohibition of slavery, preservation of languages, right to fair trial, and provided safeguard as to arrest and detention as well as providing safeguards against discrimination in services. Contrary to the compatible Constitution of India, Pakistan's Constitution reflects a heavy compromise over several issues to maintain a delicate balance of power in country's institutions. It defines the role of Islam; it was to be a Federation of Four Provinces and would be known as the Islamic Republic of Pakistan. Islam is the state religion and in order to run for bid of becoming the President (male/female) and/or Prime Minister (male/female) one is required to be a Muslim, although there is no restriction as to religion or gender on any other post. Further, the Second Amendment to the Constitution declares that the Ahmadiyya Community and/or the Lahori Group as non-Muslims. 

Coming back to J&K under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special provisions", the State of Jammu and Kashmir has been accorded special status under Article 370. Even though included in 1st Schedule as 15th state, all the provisions of the Constitution which are applicable to other states are not applicable to J&K. Government of India can declare emergency in J&K and impose Governor's rule in certain conditions. Matters related to Defense, Foreign Relations, Communication and Finance of Jammu & Kashmir is under the jurisdiction of Constitution of India. Till 1965, J&K had a Sadr-e-Riyasat for Governor and Prime Minister in place of Chief Minister. Certain special rights have been granted to the permanent residents of J&K with regard to employment under the state, acquisition of immovable property in the state, settlement in the state, and scholarship and other forms of aid as the state government may provide. Also Article 48 of Part VI of J&K constitution defines Pakistan Administered Kashmir as "Pakistan Occupied Territory". There are currently 87 seats in J&K Constituent Assembly, but article 48 of J&K Constitution also recognizes 24 seats from Pakistan administered Kashmir and mentions that these 24 seats will remain vacant till Pakistan ceases the "occupation" of Kashmir and the said area shall be excluded in delimiting the territorial constituencies till that time. 

Alexander Hamilton, one of the founding fathers of the United States asked: Are political institutions created by reflection and choice and deliberate acts of statecraft and conscious human intelligence, or are constitutions or regimes always the product of accident, circumstance, custom, and history? 

Judging by the history of the constitutions, I'd say Pakistan is yet to deliberate and reflect over its existence and in the process has prolonged a war and the 'unfinished business of Partition' recently alluded to.

Arshia Malik

Arshia Malik is a Srinagar-based writer and social commentator with focus on women issues and conflict in Kashmir. She makes her living as a school teacher and is an avid collector of literature. She is currently writing a book about her life as a female in Kashmiri Muslim society

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