The Constitution of 1962

THE CONSTITUTION OF 1962
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The report of the Constitution Commission presented to Ayub on 6 May, 1961 was examined by him and his Cabinet. He disagreed with the recommendations of the Constitution Commission and appointed, a subcommittee of the Cabinet with Manzoor Qadir, the Foreign Minister, as its chairman and Mohammad Shoaib, Zulfiqar Ali Bhutto, A.K. Khan, and Muhammad Ibrahim as its members. The Constitutional proposals were finally discussed at the Governors Conference held in Rawalpindi from 24 to 31 October 1961.
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On 1 March 1962, Ayub announced the outline of the new Constitution in a broadcast to the Nation and referred to the pledge - to restore democracy in Pakistan- given on 8 October 1958, and claimed that the new Constitution represented the fulfillment of that pledge. The 1962 Constitution contained 250 Articles divided into twelve parts and three schedules. It had a lengthy preamble, similar to the 1956 Constitution, based on the language of the Objectives Resolution. Significantly, the name initially given to Pakistan was The Republic of Pakistan, which was a clear departure from the 1956 Constitution where in Pakistan was named The Islamic Republic of Pakistan.
Presidential Form of Government-1

Under the 1962 Constitution, the President was the repository of all powers. The Ayub Government gave the following arguments in support of the presidential system: one, the presidential system had special advantages to offer to a nation which had recently emerged out of a colonial past and was embarking upon an ambitious program of social reform and economic development political unity. Two, the presidential system, by giving executive authority to one individual with a mandate from the entire nation, could facilitate the growth of unity in the country.Qualification- The President was required be a Muslim, not les than 35 years of age, and qualified for election as a member of the National Assembly. Election-He was to be elected indirectly by an electoral college in accordance with the provisions outlined in the Constitution. The lower age limit for the President under the 1956 Constitution was 40 years, as against 35 years under the 1962 Constitution.

Qualification- The President was required be a Muslim, not les than 35 years of age, and qualified for election as a member of the National Assembly. The lower age limit for the President under the 1956 Constitution was 40 years, as against 35 years under the 1962 Constitution.

Election. He was to be elected indirectly by an electoral college in accordance with the provisions outlined in the Constitution. The President was to be elected by an electoral college formed by not less than 80,000 electors, equally distributed between the two provinces (East and West Pakistan). Each province was to be divided into not less than 40,000 territorial units to be known as electoral units. Any citizen who was at least 21 years of age, of sound mind, and was a resident of or was deemed by law to be resident of an electoral unit would have the right to be enrolled.

Powers. Auditor General, judges of the Supreme Court and the High Courts, Attorney General, the Election Commissioner, the members of Central Public Service Commission, the Council on Islamic Ideology, the National Finance Commission, the National Economic Council, were appointed by the President. The supreme command of the defense services was also vested in the President. He had the power (a) to raise and maintain the Defense Service of Pakistan, and (b) to grant commissions and to appoint chief commanders of those services and to determine their salaries and allowances.

The President and his Cabinet The President could appoint a council of ministers to assist him in the performance of his duties. The President was empowered not only to dismiss a minister or a Governor, but also to disqualify him from public office for a period of five years on a charge of gross misconduct in relation to his duties.

Presidential and the Legislature The Presidential system is based on the theory of the separation of powers between the legislature and the executive. The President could summon the legislature and prorogue it. The President was also empowered to dissolve the National Assembly at any time subject to the condition that in case of dissolution the President also had to quit office and there were to be fresh elections for both the President and the National Assembly. In case of a different opinion between the President and the National Assembly, the President could call for a referendum on the matter to be conducted among the members of the electoral college. The President had the right to address the National Assembly and to send messages to it.

The 1962 Constitution gave a more comprehensive and effective veto power. When a Bill had been passed by the National Assembly, the President could do one of the following: give assent to the Bill; withhold assent from the Bill; or return the Bill to the National Assembly with a message requesting that the Bill or a particular provision of the Bill be reconsidered and amendments suggested in his message be considered. If the President did not take any of these three steps, the Bill would be deemed to have received his assent after the expiry of thirty days.

The President had the power to make and promulgate ordinances which had the same force of law as Acts of the central legislature. The President could promulgate an ordinance when the National Assembly stood dissolved or was in session and he was satisfied that circumstances existed which necessitated immediate legislation. Such an ordinance, however, had to be laid before the National Assembly as soon as practicable. Presidential Control over the Budget The President was to present the budget, and the annual financial statement before the National Assembly. No proposal relating to Money Bills, no proposal for imposition of taxation, or for the appropriation of public revenues, or for borrowing of money and similar matters, could be made except with the recommendation of the President. As taxation, Article 48 provided that no tax could be levied except by or under the authority of an Act of the central legislature.

Emergency Powers of the President If the President was satisfied that a grave emergency existed in which Pakistan or any part of Pakistan was threatened by war or external aggression or in which security or economic life of Pakistan was threatened by internal disturbances beyond the power of a provincial government to control, the President could issue a proclamation of emergency. The proclamation of emergency had to be laid before the National Assembly as soon as it was practicable, there being no fixed time-limit.

The President could revoke a proclamation when satisfied that the grounds on which it was issued had eased to exist. During a time of emergency, the President was authorized to make and promulgate such ordinances as might appear to him to be necessary to meet the emergency. The President could exercise this extraordinary legislative power even when the National Assembly was in session. With the revocation of the proclamation of emergency the ordinances made by the President ceased to have effect unless such ordinances had been approved by the National Assembly.
Federal System
A Centralized Federal System After independence, a highly centralized federal system was established in Pakistan under the interim constitution. The 1962 Constitution, however, provided for a much simpler method of distribution of powers, under which there was only one list of subjects of national importance, all other subjects were left to the provinces. The subject given to the centre included defense, external affairs, inter-provincial trade and commerce, national economic planning and national economic coordination, currency, foreign exchange, central banking, insurance, nuclear energy. Mineral oil and natural gas, industry owned wholly or partly by the central government or by a corporation set up- by the centre, preventive detention for reasons connected with defense, external affairs, and the security of Pakistan.
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Central Legislature-1
A Unicameral Central Legislature. The 1962 Constitution, like the 1956 Constitution, provided for a unicameral system though most of the federal systems in the world have a bicameral system. The central legislature consisted of the President and one House known as the National Assembly of Pakistan. It had 156 members on the basis of parity of representation between East and West Pakistan. There were 150 elected constituencies, half elected by constituencies in East and the other half by constituencies in West Pakistan. Six seats were reserved for women three from East Pakistan, and three from West Pakistan. The term of the National Assembly was fixed for five years unless it was sooner dissolved by the President. The members of the National Assembly were to be elected under the same system as was provided for election of the President, that is, indirectly y the members of the electoral college.
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Central Legislature-2
A candidate for election to the National Assembly had to be at least 25 years of age and his name had to appear on the electoral roll for any electoral unit. A person could not, at the same time, be a candidate for election to more than one seat in any Assembly or to a seat in more than one Assembly. The President could summon and prorogue the National Assembly. The Speaker could summon the National on the requisition of one third of the members and when the Speaker summon the National Assembly, only he could prorogue it. No member of the National Assembly was liable to any proceedings in any court in respect of anything said or any vote given by him in the National Assembly or any of its committees. It was provided that if a member of the National Assembly was elected as President or appointed as a Governor or minister or to any other office of profit in the services of Pakistan; he would cease to be a member of the Assembly.
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Governors and Provincial Legislature-1
The Provincial executives under the constitution were directly subordinate to the President in as much as the provincial government, the head of the provincial executives was appointed by and held office during the pleasure of the President. The Governor was not merely a figurehead but the holder of the real executive authority in the province. The provincial Cabinet was responsible to the Governor who, however, could not appoint or remove a Provincial Minister without the concurrence of the President.
Governors and Provincial Legislature-2

It was further provided that Governor of a province should, in the performance of his functions, be subject to the direction of the President. In cases of conflict between the provincial government and the Provincial Assembly, the conflict could be referred to the National Assembly and if the National Assembly decided in favour of the Governor and if the President concurred, the Governor could dissolve the Provincial Assembly. The provincial governments were structured in a manner similar to the central government.The Governor, like the President, was the chief executive of a Province and selected his council of ministers.
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Relations- the Centre and the Provinces-1
A provincial legislature was given more power to make laws for the province or any part of the province with respect to any matter other than those enumerated in the central list. The central legislature, however, could legislate on any matter connected with a provincial subject on the grounds of national interest in relation to the security of Pakistan, including the economic and financial stability of Pakistan.
Centre- provincial relations-2

The central legislature could also legislate on a provincial subject when the provincial legislature authorized the central parliament to make any laws in a matter not enumerated in the third schedule. In case of conflict between the central and provincial laws the latter had to give way to the former to the extent of such repugnancy. Residuary power had been vested in the provincial legislatures which had an undefined residuum of power to make laws with respect to any matter not enumerated in the third schedule. Both the Government of India Act, 1935 and the 1956 Constitution contained detailed provisions relating to the administrative relation between the centre and the provinces. The 1962 Constitution, however, contained hardly any provision in this respect.
Distribution of Financial Resources between the Centre and the Provinces
Under the 1962 Constitution, the allocation of the proceeds of the taxes and duties collected and administered by the central government to the provinces were as follows: The National Economic Council was to be appointed by the President by nominating its members. The functions of the National Economic Council were to review the overall economic development of Pakistan. It was stressed that in formulating the plans, the National Economic Council was to ensure that disparities between the provinces, and between different areas within a province, ion relation to income per capita should be removed and the resources of Pakistan. It was further stressed that the duty of each government should be to make the utmost endeavour to achieve this object of removing economic disparity between the provinces.
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An Independent Judiciary-1
When Ayub decided to restore constitutional government and the 1962 Constitution was in process of being drafted, there was an almost universal demand for restoration of the full jurisdiction and powers of the courts and the incorporation of a Bill of Rights under the new constitution. The Shahabuddin Commission stressed and emphasized the fact that the independence of the judiciary should be maintained as had been the practice for a long time and any inroad into it, which had been found necessary during the martial law period, should not be treated as a precedent.
An Independent Judiciary-2
The recommendation of the Shahabuddin Commission relating to the powers of the judiciary and fundamental rights were, however, modified by the cabinet subcommittee when giving final touches to the 1962 Constitution. Under the 1962 Constitution, the President was to appoint a council to be known as the Supreme Judicial Council, consisting of the Chief Justice and the two net senior judges of the Supreme Court, and the Chief Justice of each high Court. The original power under the 1962 Constitution of the Supreme Court included jurisdiction in any dispute between the central government and a provincial government, or between two provincial governments.
Elections through the Electoral College
The Constitution of 1962 introduced indirect elections not only for the President but also for the National as well as Provincial Assemblies. The Basic Democrats, that were elected, constituted the electoral college for the election of the President and the Assemblies.
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Islamic Character of the Constitution-1

Islamic provisions were continued, as in the 1956 Constitution. The preamble followed the Objectives Resolution in laying emphasis on the principles of democracy, freedom, equality, tolerance, and social justice, with the qualification that these principles should be observed as enunciated by Islam. The Directive Principles where according to the constitution, the Muslims of Pakistan should be enabled individually and collectively to order their lives in accordance with the fundamental principles and basic concepts of Islam and should be provided with the facilities whereby they may be able to understand the meaning of life according to those principles and concepts.
Islamic Character of the Constitution-2

Further it was laid down in the Principles of Policy that (i) teaching of the Quran and Islamiat to the Muslims of Pakistan should be made compulsorythe word Islamiat was not included in the relevant Article of the former constitution; (ii) unity and observances of Islamic moral standards would be promoted among the Muslims of Pakistan; (iii) proper organization of zakat, waqfs, and mosques should be ensured. The head of the state, the President, was to be, as in the 1956 Constitution, a Muslim. the bonds of unity among Muslim countries should be preserved and strengthened.
Conclusion
The principal objections to the 1962 Constitution were the Presidential system, the indirect franchise, and the non-justiciability of fundamental rights. Ayub was not willing to consider the preference of the East Pakistan for parliamentary form of government. He felt very strongly about the state structure he had created under the 1962 Constitution. He was convinced that only a Presidential form of government could ensure Pakistans unity. He felt that all the powers of state should be concentrated in the hands of the President who alone could guarantee unity, integrity, and solidarity of the state of Pakistan. He believed that removal of any vital element from the constitution would cause the whole edifice to collapse and hence, there could be no tempering with this the constitution.

The Constitution of 1962

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THE CONSTITUTION OF 1962

Downloaded from http://saqibtanveer.blogspot.com