A New Constitution for Pakistan

In a recent article on chowk, F R Khan has asked the question as to what system of governance is better suited for Pakistan, i.e. Presidential or Parliamentary democracy. He asserts that Mohammed Ali Jinnah’s decision to opt for the office of Governor General had necessitated a presidential form of Government. However he fails to mention that the country’s first provisional constitution, the Government of India Act 1935 clearly executive authority in the Governor General. The constitution declared the Governor General to be responsible for maintenance of law and order, financial matters of the state , safe guard of minorities and ensuring free unrestricted trade between the dominion and Britain. In order to carry this out, the Governor General was given enormous authority including the section 51(5) which gave the head of the state the power to order the Governor of any provincial legislature to dissolve it and send the MPs home. It is also a well known fact that Mohammed Ali Jinnah saw his office as Governor General as mere form, and indeed was Presidential in his actions. For example he really hated signing bills ‘in the name of the majesty’ striking out the phrase wherever he got the chance to. More over he signed the bills in his capacity as the ‘President of the constituent assembly’ (equivalent of the modern day speaker of the house). Jinnah could violate a known convention of Dominion Government because as K. B. Sayeed points out in his book ‘The Formative Phase’ , Jinnah was the only Governor General who ‘derived his ultimate authority neither from the power of the army nor the support of the bureaucracy, nor from any constitutional prerogatives, but from the political support that his people gave him in an abundant measure’.

All these are firm foundations for a directly elected, strong executive, and legislature which is independent of all other branches of Government. This seemed to serve Jinnah well. As F.R.Khan points out, it helped Jinnah keep the feudals at bay. The feudals had resisted Pakistan and had been wary of the incoming Muslim intelligentsia which was better qualified to lead a state than them. Besides them, Jinnah was also able to keep the religious forces at bay, and owing in no small measure to his own stature as well as his constitutional position as the Governor General of the newly formed state, he was able to get away with advocating separation of church and state. Therefore experience tells us that a presidential form of government has better chances in Pakistan than the parliamentary democracy, which we have seen being exploited by the feudals and the religious right. However the statement of this fact shouldn’t give the army any ideas simply because when we talk about a presidential form of Government, we are still talking of a civilian democracy and not a military dictatorship.

The 1973’s constitution has failed us on many grounds. First of all it was a compromise document, and wasn’t reflective of the ideology of the majority party, PPP. Hence the document was theocratic in nature, though liberal in spirit. With two military coups and victories of the religious right, the liberal spirit of the constitution has all but withered away. Today this constitution is the bulwark of theocracy. Secondly as we have discussed earlier in this article, the presidential form suits Pakistan better than the parliamentary form, since parliamentary form has been utilized by the feudals of the country for their own vested interests. The current government for example has announced that there will not be any more land reforms, thus bringing to halt any advance towards the decrease in the power of the feudals.

What is required in Pakistan now is a fresh election to elect a fresh assembly for the task of constitution-making. Time has come for Pakistan to retire the much battered and abused Constitution of 1973, and march forth into the new century with a new constitution. The constituent assembly should be created for this express purpose and hence once it has completed its task within a prescribed time limit, it should be disbanded and fresh elections should be called under a new constitution. There are certain past lessons that Pakistan will do well to learn from when framing such a constitution:

1) The new constitution should be based on the principle of separation of church and state.

2) The new constitution should separate the executive, legislative and judicial branches of the government and with no mingling or overlap between the two.

3) The Head of the state and the Head of the government should be unified into one President who should be the state’s Administrative head, Supreme Commander of the armed forces, and the nation’s chief diplomat. He should not however have the powers to dismiss any legislature. The President should nominate his cabinet. I propose the center only have 5 subjects: a) Foreign Affairs b) Defence c) Fiscal and Monetary Policy d) Communication e) Education

4) The central legislative organ should be divided into a lower house and an upper house for the sake of the federation. Both houses should have equal legislative power.

5) The Provinces should be considered 4 federating units with their own legislative organs and their own elected governors. The provinces should have a proportional share of legislators in the lower house of the Central legislative organ. The upper house should equal members from each province
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6) The President should have the powers to veto any simple majority bill if he feels it will hinder the smooth operation of his Government. If the legislature still wants to pass the bill, it should require 2/3rds majority to overrule the president.

7) Most importantly, elections for the President, Central legislature, and the provincial legislature should be on the basis of the list system of proportional representation. Single member constituency should be abolished. There should be only one election. Popular parties should be allowed to contest elections under an election symbol. There should be only one voting. For the purpose of results, each province should serve as one unit constituency thereby dividing the country into 4 distinct political units. 2 top parties in each province in terms of popular vote provided it is above 10% should be given seats in the provincial and central legislatures.

8) For the purpose of the election of the President the entire country should serve as one unit. The popular votes of each party in each province should be tallied. The party with the most popular votes nationwide should have its candidate as the President of Pakistan.

9) Judiciary should constitute its own executive body to make decisions such as appointment or impeachment of Judges. Their appointment should not be overruled by any other branch of Government. Similarly they should only have a limited right to judicial review to determine the infringement of religious or political rights of a particular community.

10) The constitution should not prescribe any limits on the legislative principle, except ensuring the basic rights and freedom of religion.


Pakistan needs a workable and flexible Constitution which is practical and can be sustained over a longer period of time. Such a document should take into consideration the rapid advancement of human race and shouldn’t bind our posterity to any inchoate principle which might make them condemn us.