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Provisional Constitution (1947-1956)
After independence, under Section 8(1) of the Indian Independence Act, 1947 the Government of India Act, 1935 became the working constitution of Pakistan but with few amendments till the Constituent Assembly framed a new constitution. The Constituent Assembly of Pakistan extended the time perimeter to 31st March 1949; and before the termination of that date, on 28th March, by the Adaptation of Central Acts and Ordinance Order, the whole Indian Statute-Book was adopted, with due regard to the changes subsequent upon partition.
Pakistan was established constitutionally as a Federation under the Pakistan Order 1947 which included: the four provinces of East Bengal, West Punjab, Sind and North–West Frontier Province; Baluchistan; any other areas included in Federation; Karachi, the capital of Federation; and such Indian states as might accede to Federation. Its structure was espoused from the Government of India Act 1935 and there was a proposal of establishment of autonomous provinces as constituent units of the Federation. Centralization was found to be both problematic and detrimental to administrative efficiency; so Provincial autonomy was its basic idea. Gradually the central government gave up much of its powers to the provincial governments and kept some basic affairs under its jurisdiction.
A significant attribute of the 1935 Act was that, for the first time, it provided the provinces with separate authorized powers. It made little changes in their legislative authority; the provinces held the right of concurrent legislation with the center with regards to certain matters. Financial divisions between centers and provinces were also designed to strengthen the center. The most important point was the emancipation of the provinces from the ‘superintendence, direction and control of the center apart from certain particular circumstances.’
The method of division of powers between center and provinces was ‘without precedent’. The Government of India Act 1935 contained three legislative lists – the federal, the provincial, and the concurrent. The first two lists belonged exclusively to the federal and provincial legislature respectively and both were capable to deal with matters covered by the third list. The residuary powers were vested with the Governor-General and he was empowered to allow center or provinces to ratify laws on any matter not mentioned in the three lists.
The provincial list included public order, the administration of justice, courts of law, police, prison, provincial public services, local government, public health, education, communications, water supply and irrigation, agriculture, land, and land tenures, production, trade, and commerce, and fisheries, etc. Besides, the concurrent list gave the provinces the right to legislate regarding criminal law, criminal and civil procedures, marriage and divorce, wills and succession, transfer of property, etc. But there were some matters outside the jurisdiction of the provinces like a military force, defense, external affairs, currency, posts and telegraphs, census, banking, insurance, shipping, imports and exports, custom duties and income tax, etc. In matters of the concurrent list, the Government of India Act provided the federal law was to prevail and the provincial law to be annulled to the degree of incompetency.
The Government of India Act 1935, empowered federal legislature to legislate even on provincial matters in two conditions; the first was when the legislatures of two provinces would invite the federal legislature to function in connection with any provincial subject (Section 103), and the other condition was that the Government of India Act gave authority to Governor-General to declare ‘Proclamation of Emergency’ when the security of State was threatened whether by war or by internal disturbances (Section 102). Section 102 was successively amended in 1947 as ‘the federal legislature was empowered to make laws for provinces or any part; if Governor-General has declared by an emergency that the security and economic life of Pakistan or any part is threatened by was or by external disturbances or circumstances arising out of any mass movement of population from or into Pakistan’; and its scope was enlarged to meet the situation created by the movement of the population after partition.
After the creation of Pakistan, the original division of financial resources had to be changed in favor of the Central Government. The Central Government’s necessities for funds, particularly in the fields of defense, were enormous in the first few years that the policy of sharing taxes with provinces was suspended. Similarly, sales tax which was the subject of the provincial list was also taken away by the central government.
Under the Government of India Act, the administrative relations between the center and provinces were weighted heavily in favor of the center. The Government of India Act provided the supremacy of the center in different administrative subjects. One way of securing was for the federal government to function directly through its officers posted in the provinces. It was specified under section 124 (2) that the federal government might confer powers and impose duties on provinces, though the subject matter of legislation might be beyond the provincial purview.
The discretionary powers of the Governor-General were not included in Provisional Constitution. Although he was still the managerial head of the federation and all proceedings were taken on his name, he was supposed to act in all such matters on the advice of his cabinet ministers; that is why the cabinet formally gave all powers to Quaid. However, this condition was not spelled out with lucidity in Provisional Constitution. The discretionary powers of the Governor-General were that he could appoint prime minister and ministers who held their offices ‘during his pleasure’. Provincial Constitution not only held the system of separate electorates but also extended it to the Scheduled Caste Hindus.
Summing up, a scrutiny of the associations of the center and the provinces under the Government of India Act as amended in Pakistan would confirm that while it provided the provinces with a separate legal personality, the central government was fully equipped with powers to carry out its responsibilities. The center reserved the ultimate means of controlling and directing the provinces. There was no room for a weak center.