Articles Asia Politics & Governance

Decolonisation in Pakistan’s Early Constitution History

Image Credit: Friedrich Naumann Foundation
Decolonisation in Pakistan’s Early Constitution History

What united many Indians prior to partition, despite which political faction they belonged to and their views on the creation of two new independent states, was their desire to witness the dawn of decolonisation from the British Empire. Decolonisation is a process rather than a singular act or event because it takes time to remove the colonial military and governmental presence. But, especially in the sense of decolonisation as the process of challenging the notion that the white colonisers are the only authoritative purveyors of knowledge and history, it is a long journey that requires introspection on indigenous identities.

Having commenced the oppressive rule of India under the guise of the East India Company, the British arrived when India had one of the largest shares of the world’s economy, but they left it with far less. A recent article attributed between 50 and 165 million excess deaths in India to British colonial policy on tariffs, technologies, and exports, besides the massacres perpetrated by officers of the British Army. Some Hindu-Muslim communal tensions that contributed to partition pre-existed or were independent of British colonial rule, but they were often exacerbated by the colonial policy of “divide and rule” as the British likely feared that a unified Indian independence movement would be a far greater threat to its authority than one that is divided along communal lines.

The Indian Independence Act 1947, containing the provisions for setting up the two independent dominions of Pakistan and India from 15 August 1947, embodies the tensions between independence as the beginning of decolonisation and the ongoing influence of the British government and Crown by virtue of dominion status. The Act stated that Governors-General of Pakistan and India were to be appointed by the King (George VI) and were to be his representatives in each dominion, given “full power to assent in His Majesty’s name to any law.” Khalid Bin Sayeed wrote in his book, Pakistan: The Formative Phase, 1857-1948, that Governor-General Jinnah would strike out the phrase “in his Majesty’s name” whenever he would assent to bills passed by the legislature. But perhaps in contradiction to this, Jinnah appointed Brits as 3 out of 4 of the provincial governors, given their relevant experience, and so there was both a palpable frustration at reminders of colonisation but also a certain pragmatism (whether right or wrong) about the governance challenges inherited by Pakistan at partition.

Whether in terms of the law, determined social status or inward and outward perceptions of identity, knowledge and history, the colonial legacy is sadly still felt.

Where the power rests in terms of legislation and governance is the determinant of independence from the British Empire. Besides the Governor-General being empowered to assent to bills independent of the Crown, the new legislature would have “full power to make laws”, and none of these could be declared void due to repugnancy to the law of the United Kingdom. The Act ended all responsibilities of the British government to govern the erstwhile British India, and British suzerainty over the Indian states would lapse, along with any treaties. The King would also have “Emperor of India” removed from his list of titles. The title, symbolising British sovereignty, was first assumed by Queen Victoria as “Empress of India” in April 1876. In the debate in parliament over whether the Queen should assume this title (an indictment of British priorities), one British politician suggested she not take it because Empress is a “despotic title” and this “would be derogatory to her”, completely ignoring how such a title would be received by Indians.

The Indian Independence Act stated that both of the new dominions were to be governed according to the Government of India Act 1935 until their respective Constituent Assemblies had produced a constitution. Unlike in India, with the appointment of Viscount Mountbatten, a native became Pakistan’s first Governor-General. That man was, of course, Muhammad Ali Jinnah, who also served as president of the Constituent Assembly. He used the power allocated to the Governor-General by the Indian Independence Act to promulgate the Pakistan (Provisional Constitution) Order, 1947 and thus further distance Pakistan from the British Crown. According to a Dawn article, republished 75 years later in 2022, there was no “reference to the King anywhere” in the Order, and the oaths of allegiance for judges and members of the legislature were sworn to Pakistan’s constitution rather than His Majesty the King, Emperor of India, His heirs and successors.

Despite these varied moments of decolonisation, the fact that both new states were to be governed according to the Government of India Act meant that remnants of the colonial system were there to stay until their Constituent Assemblies had managed to create a new constitution. Sadly, a copy of the Pakistan (Provisional Constitution) Order could not be obtained to reflect on how Jinnah and his cabinet altered the Government of India Act and, thus, the extent to which it departed from the colonial system. Besides the Order’s alleged removal of the “special responsibilities” (e.g. prevention of menaces to peace, safeguarding legitimate interests of minorities, etc.) of the Governor-General and the Governors of the Provinces and caveats that both could act as per their own “discretion” and “judgement,” the roles of both offices were to remain the same from colonial times unless amended. Both the Governor-General and Governors had legislative powers, with the latter circumscribed by the supervision and instruction of the former. Jinnah was said to have taken the issue of provincial governments attaining his assent for ordinances very seriously.

While India’s first (and only) constitution came into force on 26 January 1950, making it a sovereign democratic republic, Pakistan did not adopt its own until 23 March 1956. Pakistan thus became an Islamic Republic, and the Monarchy of Pakistan (under Queen Elizabeth II later) was abolished, though Pakistan remained within the Commonwealth of Nations. But the colonial legacy within the state machinery lives on, such as through the colonial-era Indian Penal Code, 1860, as well as in the wider legal system and access to justice, despite reform projects, particularly that of Islamisation.

Each August, as Pakistan (and India) celebrate their independence from British colonial rule in light of these constitutional and governmental steps towards decolonisation, it is also important to remember decolonisation as a multifaceted process that many would argue has not yet been fully achieved. Whether in terms of the law, determined social status or inward and outward perceptions of identity, knowledge and history, the colonial legacy is sadly still felt. The same can be said of the United Kingdom, particularly with regard to ongoing issues in race relations and discrimination as in part determined by a colonial mindset. The tensions between decolonisation and the continuing influence of the British in Pakistan’s early constitutional history is a stark reminder of just how complex that decolonisation process is.

Mary Hunter

Mary Hunter is a PhD candidate at the University of St Andrews, researching the Islamisation of Pakistan. She is also a freelance writer on issues relating to Islamophobia, Pakistan and its diaspora in the UK.

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