16th December....what if ? ! | The News

16th December 2014
by Javed Jabbar

Several factors led to the dismemberment of the original Pakistan on 16th December 1971 .One of these factors has received far less attention in public discourse than deserved .

This factor is the disregard for a fundamental dimension of the Constitution-making role of the National Assembly elected in December 1970 as expressed in the formulation of the Legal Framework Order ( LFO ) under which the Assembly was elected for its prime purpose.

This disregard was represented by the fact that the LFO did not require a simple majority, leave alone a two-third majority of the 5 Provinces of the country to endorse a new Constitution.

The LFO's ambivalence on this aspect allowed for a simple majority of the Members of the National Assembly to validate all decisions, including all those concerning Constitution-making.

Given the inflexibility of the Awami League ----wholly centred in East Pakistan alone ---- about its Six-Point programme which was its manifesto for the December 1970 election , the anomaly in the LFO disproportionately and unfairly magnified the role of both the Awami League and one Province at the expense of all the others.

One of the best decisions taken by the Government of General Yahya Khan, before it commenced its disastrous descent into dysfunction, was to dismantle One Unit in West Pakistan . Four Provinces were restored/established .

Sindh, NWFP , Balochistan (for the first time in its 1970 form ) and Punjab ( inclusive of Bahawalpur which had been promised restoration to its earlier autonomous status but the promise was not fulfilled ).

From being a two-Province country --- the only such country in the whole world, with the two Provinces separated by about 1000 miles of hostile territory ---- the State of Pakistan, even without a new Constitution --- became a virtual, de facto Federation of 5 Provinces , ie . East Pakistan, and the four new Provinces in West Pakistan.

It is an established principle of Constitution-making by nation-states in the contemporary age ( spread over the past 200-plus years ) that the text of a Constitution, and any amendments, should be endorsed by either two-thirds of the legislature that drafts the text ( in the case of a single, unicameral system as was the then-Pakistan ) as also by at least two-thirds of the units/provinces that comprise the Federation.

In our case, this should have required that at least two Provinces located in West Pakistan also endorse the text. To enable 3 out of 5 Provinces , ie. at least a simple majority , to also endorse the new framework.In the specific circumstances of 1971, this meant that at least 2 Provinces in West Pakistan would have had to support the Six-Point programme of the East Pakistan-based Awami League, a programme that envisaged an entirely new structure for a two-Wing State . The Six Points implied that West Pakistan was still a single , homogenous, potentially untrustworthy component of the State dominated by Punjab. . Whereas after the disbandment of One Unit, the extraordinary diversity and and hetereogenity of West Pakistan re-emerged, and was beginning to re-assert itself .

Despite the unexpected scale of victory in the four Western Provinces of the wholly west-based Pakistan People's Party ( PPP), its 81 seats were mainly in Punjab and Sindh . Other parties such as the National Awami Party in Balochistan and the Jamiat-ul-Ulema in NWFP which went on, after 1971, to form the first Governments in their respective Provinces may or may not have endorsed, wholly or partly, a Constitution primarily , if not exclusively shaped by the Awami League's Six-Point programme . The Awami League's vision for Pakistan had not secured a single seat in any of the 4 Provinces of West Pakistan .

The omission of the basic requirement , specially in a Federated State ,of a two-third majority of Provinces also endorsing the Constitution to be produced by the newly elected National Assembly encouraged the Awami League to adopt an unbending, inflexible posture about the Six-Points programme . While the Six- Points were an understandable attempt to redress genuine as also perceived injustices of the past against East Pakistan, in practical terms, they meant the re-composition of the State into a Confederation, as distinct from a Federation.

If, from the word " Go ", the LFO had firmly spelt out the Federative principle , it is probable that the Awami League would have adopted a less rigid, more accommodative approach to a new Constitution inspired by, but not strictly confined to , the Six -Points programme.

With an abnormally long election-campaign phase of about ten months( by another estimate 18 months ! ) --- instead of three to four months --- the Federative dimension of 5 Provinces was over-shadowed . In fact , in East Pakistan it was completely by-passed by the misleading aspect of a looming confrontation between East Pakistan and a Punjab-dominated West Pakistan . Stress on essential support by at least 3 out of 5 Provinces would have injected a pre-emptive, deterrent element to safeguard the continuity and unity of Pakistan.

The flaw in the LFO , like the devil in the detail, was there for all to see. Yet this black hole appears to have been either inadequately debated, uncritically accepted or even deliberately ignored . This collective lapse eventually led to catastrophic consequences. On an anniversary of a forever-painful tragedy, it is cold but necessary comfort to briefly speculate : " What if...? " !

As published on the op.ed page of The News , Pakistan on 16th December 2014 .