By Yasser Latif Hamdani
There are many people who criticize Jinnah – quite incorrectly in my opinion- of having laid the foundations for subsequent periods of authoritarian military rule. They allege that Jinnah’s decision to become the Governor General was the first blow to parliamentary democracy in Pakistan. Unable to distinguish the argument of constitutional purists pleading the ceremonial and executive roles of president and prime minister i.e. head of state and head of government from that of democratic argument about the sovereignty of parliament, these authors etc make the fatal error of not making an effort in understanding both the constitution in place and the environment under which Jinnah exercised his constitutional authority. By confusing the two, they make a mockery not just of the latter issue, but history itself. In the process they end up abusing the one person in Pakistan’s history who can truly be called a liberal democrat in every sense of the word.
There are many myths that are woven around Jinnah’s period as Governor General of Pakistan, one of which was erroneously forwarded by Campbell Johnson who inaccurately claimed in his book “Mission With Mountbatten” that Jinnah applied for powers under Ninth Schedule of the Government of India Act 1935 (“GOIA1935”). This is significant since it was the Ninth Schedule of the GOIA1935 which strengthened the Governor General and gave him powers to ensure passage of bills in form that had been recommended by the Governor General. From 19 July 1947 onwards, the Ninth Schedule was no longer available (Sayeed, 1992). Meanwhile a point of divergence between the Dominion of Pakistan and Dominion of India was “Section 93” which empowered the central government to dismiss provincial legislatures. Most readers will be surprised to know that it was Pakistan that omitted Section 93 and India that adopted it. All of this will become relevant as I will discuss the issue of the dismissal of Khan Ministry in NWFP ordered by Jinnah himself.
First however we must consider whether Jinnah’s decision to become the Governor General in violation of established dominion constitution norms in the British Empire. It must be remembered that Jinnah had – in the immediate aftermath of June 3rd plan – hinted at retirement from public life and spending the rest of his life in his house in Bombay. The original name in circulation for Pakistan’s first governor general was that of Nawab Hameedullah Khan of Bhopal. It was not until July that Jinnah saw that Hameedullah Khan would not be available immediately and that the choice was between choosing a common governor general – which would have further hurt Pakistan’s chances after what was at best a moth-eaten compromise- or taking the mantle himself. The Round Table wrote:
“Mr. Jinnah said at the meeting of the Council of the League on June 9, when the plan was accepted, that he had ‘done his job’. It is not surprising that they refused to part readily with one who, though aging and lately ill, surpasses them and possibly everybody else in India, in practical political intelligence. From their point of view his recommendation as Governor General of Pakistan may be readily understood – though Mr. Gandhi thinks that a different decision was taken earlier, perhaps before the N-W.F.P. problem was presented in a new form and Lord Mountbatten visited Kashmir.” [i]
This was echoed in an editorial by The Times London which said: “Yet those who will be called to rule Pakitan may hold that relatively undeveloped qualities that make up much of its territory must be guided by a Governor General capable of exercising the functions of higher control and co-ordination which formerly vested in a Canning or a Curzon.”[ii]
Drawing a comparison with Kemal Ataturk, who also chose to be the head of the state instead of head of the government, Dawn wrote: “ Whatever the constitutional powers of the Governor General of a Dominion may nominally be, in Quaid-e-Azam’s case no legal or formal limits can apply. His people will not be content to have him as merely the titular head of the government, they would wish him to be their friend, philosopher, guide and ruler, irrespective of what the constitution of a Dominion of the British Commonwealth may contain.” [iii]
It is not fair to compare Jinnah’s position with that of Nehru, who became the Prime Minister and ruled India and ruled with an iron rod (his liberal use of Section 93 and his treatment of his friend Shaikh Abdullah are just two examples) for as many as 17 years, in the end dying in office. Brilliant as Nehru was, he was just one party leader and at best a stalwart amongst at least three others. There was no question of Congress forwarding Nehru’s name for the Governor General given that he was not a neutral arbiter for the various party factions. He had a major rival in Patel and his position in Indian pantheon was by no means as absolute as Jinnah. Jinnah was – as Nehru wrote himself in his book “Discovery of India”- the only Muslim League politician of noted ability and entirely without the lure of office. Nehru’s role in India was to be that of a respected party politician and not that of an impartial arbiter that Jinnah’s followers expected from him.
The truth is that in the British Empire’s constitutional history, a powerful politician like Jinnah taking over as the first governor general of a self governing dominion is the norm and not the exception. Sayeed quoted the example of Canada where Lord Elgin and Lord Dufferin both of whom were strong Governor Generals in the formative phase of that great democratic dominion- perhaps much stronger than Jinnah ever was. Australia too was similarly fortunate to find a firm early hand to guide it through the troubles before it. One may add Ireland to this list where the first Governor General of the Dominion who was an active party politician. Jinnah, it must be recalled, resigned from the presidency of the Muslim League soon after independence stating that he could not as Governor General remain at the head of an avowedly communal organization. In India Lord Mountbatten, who never made any effort to hide his ambitions, became the Governor General. He was handed – allegedly- a blank piece of paper by Nehru for cabinet selection. Mountbatten presided over not just every major decision of the Indian government, he even commanded and directed Indian troops in Kashmir.
In the original GOIA1935 admittedly all executive authority was vested in the Governor General who was in some matters would act on the advice of his ministers who he alone could choose in his discretion and in other matters such as maintenance of law and order, safeguarding of the financial stability and credit of the federal government, the rights of minorities, rights of Indian states etc in his individual judgment. Section 8 of the Independence of India Act 1947 (“IOIA1947”) radically modified this while simultaneously empowering the Governor General to adapt the GOIA1935 as he pleased. It may also be remembered that a specific provision that was found in British North America Act and other Dominion constitutions binding the Governor General to advice of the cabinet or council was missing in the provisional constitution order for Pakistan. Therefore Jinnah was constitutionally a more empowered Governor General in the Curzonian mold.
Other issues that are raised about Jinnah are with respect to his dismissal of the Khan Ministry soon after independence. To understand the context of this dismissal one must revisit the NWFP situation as it existed just before the creation of Pakistan. June 3rd Plan – agreed upon by Congress and Muslim League- envisaged a referendum in the NWFP to determine which constituent assembly the province will join. Prior to this, Jawaharlal Nehru and the Congress had waged a successful campaign against Sir Olaf Caroe, the governor of NWFP, removed because he was deemed by Nehru and Dr. Khan Sahib to be partial towards the Muslim League. Perceptive historians on both sides of the border have since concluded otherwise. In any event Sir Olaf was replaced by Rob Lockhart. It was under the new governor, who enjoyed the confidence of the Congress Party and its ministry in the Frontier that the referendum was to be held.
Howard Donovan, the Counselor for US Embassy in Delhi, in his periodic report of 26th June, 1948 addressed to US Secretary of State George Marshall, points out that “observers in New Delhi believe that the Muslim League will win the forthcoming referendum and that it is a foregone conclusion that the NWFP will join Pakistan. This is unpalatable to Khan Abdul Ghaffar Khan and his recent talks with Jinnah and Gandhi in Delhi were an effort to forestall… Gandhi has supported Khan Abdul Ghaffar Khan… Nehru, Patel, and other Congress members of the Government are understood to be opposed to the idea of Pathanistan. It is of course ridiculous for the Congress to oppose independence of Travancore and at the same time espouse the cause of independence for the North West Frontier Province… Khan Abdul Ghaffar Khan’s action will further complicate the situation in the North West Frontier Province and it will in all probability lead to further strife and bloodshed”
On 27th June, 1947, Ghaffar Khan announced that “we have decided to establish Pathanistan which will be an independent state of all Pathans”. He also announced that the British were planning on making NWFP the base of operations against Russia and that the “arrival of Gen Montogomery and his meetings with Mr. M A Jinnah are significant”. Taking a leaf out of Jinnah’s own political vocabulary, he told the Pathans “Let us all organize ourselves and work under the discipline”. He also announced the boycott of the upcoming referendum. The editorial of the decidedly Indian nationalist newspaper “Statesman” for 28th June, 1947 stated that this amounted to an admission that the Frontier Congressmen who had been claiming that they had killed the Pakistan idea in the elections were now “afraid to meet its ghost”. It went on to say “Nor can it be regarded simply as a provincial affair; it carries grave all India implications. It is the first breach in the Mountbatten plan… To that plan the Congress was pledged by Pandit Nehru and AICC. Frontier Gandhi’s boycott then suggests one of the two unpleasant things; either the Congress High Command during the recent New Delhi confabulations possessed insufficient authority to get its decision accepted by its Pathan followers or else it abstained from exercising that authority to the extent which its June 3rd commitments morally required. Perhaps, however, Mahatma Gandhi operating to some extent independently has been a complicating factor. This seems a reasonable deduction from recent comings and goings in the capital… his advocacy of Pathanistan with its Balkanizing implications has involved him in some logical difficulty because of his simultaneous strong denunciation of independence for the state of Travoncore. Of the possible consequences of boycotting the referendum, Khan Abdul Ghaffar Khan and his colleagues cannot be unaware. Under June 3 plan it was to be the lynchpin of all future constitutional change in the province. Refusal to participate thus looks like an attempt to disintegrate the procedure before it has begun… That the difficult process of the referendum should be followed not long after by general election might cause grave disorder even chaos. Yet if the votes recorded next month result in the province joining Pakistan – as now seems inevitable- it is not easy to see how a ministry which has always opposed and derided Pakistan should remain in office.”
On 2nd July, 1947, Pakistan Times carried a story by API with Peshawar Dateline of 30th June which said that “The idea of an independent Afghan state between Punjab and Afghanistan is supported by the Kabul newspaper, Islah, the semi-official organ of the Afghan Government which says there is no reason why these Afghans should be forced to live under the domination of Indians of Pakistan or Hindustan as slaves.”
Henry Grady of the US Embassy in Delhi in his report of 1st July to the Secretary of State wrote: “Jinnah’s charge in June 28 statement that Frontier Congress’ resolution demanding free Pathan state is ‘direct breach’ of Congress acceptance [of] His Majesty’s Government’s June 3rd Plan seems fully justified. Frontier Congress Resolution favored establishment of a ‘Free Pathan State of all Pakhtoons; constitution based on Islamic conceptions of democracy; and refusal by all Pathans to submit to any non Pakhtoon authority’. Jinnah pointed out Gandhi speaking at AICC meeting urged acceptance June 3rd Plan which provided for referendum to decide whether Frontier should join Hindustan or Pakistan; Frontier Congress was bound to honor agreement. Gandhi, however, has encouraged Khan Brothers ‘to sabotage’ plan and sudden volte-face is ‘pure political chicanery’, Jinnah said only constitution which Pakistan CA could frame would provide for ‘autonomous unit’ but Khan brothers have made false charge that Pakistan CA would ‘disregard fundamental principles of Shariat and Quranic laws’… Gandhi’s decision to effect boycott of NWFP referendum appears to be deliberate effort to embarrass League… While the Afghan Government must realize it is not in a position to control the tribes, it might be tempted to annex the tribal territories and NWFP… Therefore while League will obviously win referendum current Congress campaign, based on wholly on party considerations with no regard for international angle, could produce conditions in NWFP more precarious than at present.” Prophetic words for what we have been witnessing till today.
On 3rd July, in a meeting chaired by Prime Minister Atlee himself, the India and Burma committee met to discuss inter alia the situation in NWFP. Here the League’s position as expressed to Mountbatten that the League was not ready to give any assurances regarding the continuation of treaty obligations of the British Raj was cited as irresponsible and it must be pointed out to the League that this would weaken its case on the NWFP considerably. On 4th of July, the Indian Cabinet met with Nehru, Patel, Rajagopalachari and Liaquat Ali Khan amongst others where the Government of India refuted Afghan Government’s claims on NWFP declaring that it had no locus standi. Thus both Muslim League and Congress high command were on the face of it aligned with each other on this fundamental question. In private the Frontier Congressmen were already conceding that a fair referendum would yield a favorable result for Pakistan. Yet their insistence on boycott of the referendum continued for public consumption. Rob Lockhart wrote to Mountbatten on 3rd July, 1947 saying “Although the Ministers admitted that there was no question of the North West Frontier Province wishing to join the Hindustan constituent assembly and appeared to agree that there was no way of putting any other alternative before the people except Pakistan or Hindustan without changing the plan of 3rd June, 1947, they would not agree to modify their statement.”
Defending the indefensible, Nehru wrote, in a telegram addressed to one M K Vellodi on 4th July, ” no breach of pledge involved in abstention from referendum by Frontier Congress” but admitting that “quite clear that there is no demand for separate sovereign state as everyone realizes Frontier province too small and weak for such existence”. Apparently Nehru sahib was not reading the resolutions tabled by the Khan brothers and their followers.
As had been predicted from every corner, the referendum, to decide between Pakistan CA and Hindustan CA, held under an impartial governor who enjoyed the confidence of the Congress, with a Congress government in the province, still resulted in a landslide victory for the Muslim League on the Pakistan question. Even though, the Congress had itself expected this outcome, its Frontier leaders denounced it as being rigged, though without any real basis. The referendum was held to be largely fair by independent observers and reaffirmed what had been expected by all quarters – quite unlike the referenda that have followed in Pakistan under our military.
At the time when referendum was being held, Dr. Khan Sahib had famously said that he would resign from his post if Pakistan got 30% of the electorate. As shown by the last piece, Pakistan ended up polling more than 50% of the total electorate showing that the Pushtuns were overwhelmingly in favor of Pakistan. It was in the aftermath of the resounding defeat for the Congress that Dr. Khan Sahib declared that he didn’t have to resign because he commanded a legislative majority.
As for claims about “impropriety” of “referendum”, Dr. Khan Sahib himself agreed that the referendum was as proper or improper as the election that had gotten Dr. Khan sahib into power and this was promptly reported to the Viceroy by Rob Lockhart, Congress’ governor of choice (Congress had campaigned for the removal of Sir Olaf Caroe and appointment of Rob Lockhart in his place). Lockhart went on to advise Dr. Khan Sahib that the right and proper thing to do was to resign immediately. The governor also expressed concern that the continuation of a ministry so utterly hostile to the new state would be untenable and that the Viceroy should consider dismissing the NWFP government under section 93 which would be the best course available. Jinnah was repulsed by the idea of dismissing the legislative assembly whole-scale and he and Liaqat Ali Khan suggested instead that if given a chance Muslim League could form a coalition government with non-Muslim representatives which would give the Muslim League legislative majority and thereby bypass the section 93 dismissal. Since there was no constitutional requirement for an assembly session before the budget session in 1948, the Muslim League would have ample opportunity to re-align politically and gain a legislative majority. Rob Lockhart was of the view that if a change was to be made in fitness of things, it had to be made quickly because he recalled the Dr. Khan Sahib had warned of a mass movement which he “would try and keep non-violent”.[iv]
Here it is pertinent to quote Kanji Dwarkadas, a staunch Indian nationalist in his own right, who writing D G Pole on 26th July, 1947 said: “… an American journalist, a very reasonable and sound man, who has returned to Delhi from the Frontier has told me that …the Frontier referendum was run on fair lines and not as Dr. Khan Sahib and Abdul Ghaffar Khan have explained it. He found Dr. Khan Sahib to be muddled headed and both Khan brothers are now rather sore with the Congress for having let them down. The Muslim Leaguers don’t want Afghanistan to interfere.” [v]
On August 1st, 1947, Mountbatten and Rob Lockhart had a meeting with the newly appointed Pakistani cabinet minus Jinnah. These included Liaqat Ali Khan, Ghazanfar Ali Khan, Jogindranath Mandal, Ch. Mohammad Ali, Abdul Rab Nishtar and Osman Ali in which Mountbatten stated that the only course of action left was to ask Dr. Khan Sahib and his ministry to resign, failing which he would dismiss the NWFP ministry and invite the leader of the opposition to form a new ministry. The second option was to use section 93 and bring NWFP under federal rule on or before 14th of August, 1947. [vi] Having made this solemn pledge, Mountbatten went back on his word and refused to dismiss the NWFP ministry as he ought to have done and which was part of his responsibility.
If there was any doubt about what Dr. Khan Sahib was up to, it must have been cleared up by his indiscriminate issuing of arms licenses to his party men- as many as 6000. Bacha Khan’s son Khan Abdul Ghani Khan (later awarded Sitara-e-Imtiaz by Zia government for poetry) was busy arming Pushtuns to the teeth. Almost a month before partition, Rob Lockhart had warned of unscrupulous activity by the Khan Sahib government in this regard. “There is no doubt that most improper things have been happening. Certain people have been issuing instructions for licenses to be issued on a party basis. Even Dr. Khan Sahib himself is said to be guilty on these scores. A prime offender in arms trade is Abdul Ghani, the son of Abdul Ghaffar Khan. I have given orders that if proof can be produced he is to be proceeded against… there are reports that the Nawab of Tank, MLA, Muslim League is guilty of similar practices. If he too could be proceeded against, it would be good”. Ghani Khan was the leader of “Zalmai Pakhtoon” an organization that was involved in systematic violence against Muslim League and which was planning on creating wide-spread disturbances in the event of the dismissal of Khan Ministry.[vii]
The police intelligence report of 5th August, 1947 reads as under : “MILITANT CONGRESS PREPARATIONS AGAINST THE MUSLIM LEAGUE: It is rumored in some circles that Congress and Red Shirt supporters might start civil disobedience after the 15th of August if the Congress Ministry is made to vacate the office. It is reported that the Faqir of Ipi will declare Jehad against the British and the Hindus after the Id and that the Zalmai Pakhtoon Party would fight the Muslim League for the attainment of Pathanistan. Two Muslim League supporters of Prang were shot dead by certain Red Shirts on 20 July.” [viii]
Faqir of Ipi was said to be a firm ally of Bacha Khan and his party. On 8th July, 1947, Shah Pasand Khan had informed Jinnah that he had heard that “Abdul Ghani son of Khan Abdul Ghaffar Khan , the Frontier Gandhi, who came to see Faqir of Ipi in connection with the resolution passed by the Congress in support of Pathanistan. Government authorities supported this move”[ix].
Given this situation the dismissal of Khan Ministry was logical and the proper thing to do. Dr. Khan sahib should have resigned as he had himself claimed he would be. And after he refused to, it should have been Mountbatten who should have dismissed the ministry as he had been advised and as he had himself agreed to do so. He ultimately went back on his word and the governor of NWFP was left with no option but to dismiss the Dr. Khan sahib ministry under the Government of India Act 1935 after the creation of Pakistan on Jinnah’s orders.
How was this achieved constitutionally also requires understanding. Jinnah used his powers under Section 51(5) and not Section 93 (which was omitted by Pakistan as mentioned earlier though a variant of it i.e. 92-A was introduced in July 1948, by which time Jinnah was already more or less bed ridden) to instruct the governor to dismiss the ministry and replace it with a Muslim League ministry. Pakistan – faced with tremendous odds and already cash strapped- could not hold a fresh legislative election in NWFP which in any event would probably have confirmed the result of the referendum. In the circumstances Jinnah was of the view that constitutionally the NWFP legislature was not required to meet till the next budget session. Therefore Abdul Qayyum Khan, the Congress turncoat now in Muslim League, was given ample opportunity to show his majority and form a Muslim League government. By January 1948, Muslim League had won 7 of the Congressmen over and by the budget session, the League government was in place. While this action was entirely constitutional, several opinionated authors have attacked Jinnah for having violated the constitution. An example from recent constitutional history of Canada may be instructive to those authors:
“By late 2008, however, the Governor General had to return to Canada in the midst of a state visit in Europe to contend with a parliamentary dispute that endangered the stability of government, as a coalition of three opposition parties in parliament threatened to rescind their confidence in the Cabinet under the chairmanship of Stephen Harper. Choosing to follow constitutional precedent, Jean accepted, after two hours of deliberation, her prime minister’s advice to prorogue parliament until late January 2009. It was at the end of Jean’s viceregal tenure disclosed by Peter H. Russell, one of the constitutional experts from whom Jean sought advice, that the Governor General granted the prorogation on two conditions: parliament would reconvene soon and, when it did, the Cabinet would produce a passable budget. This, Russell said, set a precedent that would prevent future prime ministers from advising the prorogation of parliament for any length of time for any reason”. [x]
To elaborate further this is what the crisis was about:
“The 2008–2009 Canadian parliamentary dispute was a political dispute in the 40th Canadian Parliament. It was triggered by the expressed intention of the opposition parties in the House of Commons to defeat, by a motion of non-confidence, the minority government formed by the Conservative Party six weeks earlier, following the 40th general election on October 14, 2008.
The intention to vote non-confidence arose from the government’s fiscal update, which was presented to the Commons on November 27, 2008. It included several provisions that were rejected by the opposition parties. Though the government later withdrew several contentious elements, the Liberal Party and New Democratic Party reached an accord to form a minority coalition government, with the Bloc Québécois agreeing to provide support on confidence issues and, therefore, enabling a majority in the Commons. On December 4, 2008, Governor General Michaëlle Jean (the vice-regal representative of Queen Elizabeth II, the country’s head of state) granted the request of Prime Minister Stephen Harper (the head of government) to prorogue parliament until January 26, 2009, ending the first session of the 40th parliament and thereby delaying a possible change in government.
After the prorogation, the Liberals underwent a change in leadership and distanced themselves from the coalition, while the NDP and Bloc remained committed to the agreement to bring down the government. The Conservative government’s budget, unveiled on January 27, 2009, largely met the demands of the Liberals who agreed to support it with an amendment to the budget motion.”[xi]
Jinnah’s rule for 13 months, out of which he was in effective power for close to 8 months at most, has been described as a constitutional dictatorship. Frederick Watkins wrote:
“In periods of temporary emergency, the problem is to find an absolute regime (1) which will be just sufficiently absolute to safeguard the interests of an established constitutional order, (2) which will continue in existence only so long as those interests are actually in danger, and (3) which will then be followed by an integral return to the previous constitutional system.” [xii]
Not only does this fit Jinnah, but one may even apply this model to Abraham Lincoln for example. Abraham Lincoln is described by many political scientists as being a civilian constitutional dictator. More recently, Ataturk, Ismet Inonu and Lee Kuan Yew are other such examples of successful constitutional dictators.
The reason why Pakistan is not a functioning democracy has nothing – in this author’s view- with Jinnah’s use of his constitutional powers or his decision to choose the office of the Governor General instead of Prime Minister. In fact it is precisely the opposite. Pakistan being mainly composed of regulation provinces – i.e. where the Chief Commissioner was excessively strong and elected institutions were weak- of British India and an undeveloped middle class and a feuding landed aristocracy, needed a strong Governor General to stay long than Jinnah’s 8 months. Jinnah’s successors to the office did not have the stature or the caliber that he did, which is why Pakistan’s democracy soon fell victim to factionalism. Had Pakistan found another Jinnah, military dictatorship could have been avoided.
The issue of the precise form of parliamentary democracy is distinct from the issue of parliamentary sovereignty. While the former is discussion pertaining to executive powers v. legislative powers, the latter issue deals with the people’s right to make their laws unfettered and unrestricted by any dogma. This is precisely why in the modern context, President Zardari – as the head of the PPP- champions the issue of parliamentary sovereignty. President Zardari, hardly as uncontroversial and towering as Jinnah, is nevertheless the right man in the president house for his party because that is where the party needs him. Pakistan’s parliamentary model cannot afford a completely figurehead non-party president. A strong presidency under the current dispensation is required to sustain parliamentary democracy because Pakistan has gone from crisis to crisis and its fractured polity demands it and Jinnah had it right.
[i] The Round Table, 1946-1947, Vol. XXXVI p. 372
[ii] Editorial “Indian Independence”, The Times, London, 11 July 1947, p. 5/.
[iii] Editorial “From Founder to Builder”, Dawn, Delhi, 13 July 1947.
[iv] Minutes of the Viceroy’s twenty third Miscellaneous Meeting Mountbatten Papers- also found in “Transfer of Power Papers, No 278, Volume XII, 405-409″ and “Jinnah Papers Volume IV Appendix IV.1
[v] US National Archives 845.00/8-747, also quoted as appendix to Jinnah Papers Volume IV Annex IV.1).
[vi] No. 301 Transfer of Power Papers, Volume XII, Pages 441-445″ also quoted as “Jinnah Papers Volume IV Appendix IV.3
[vii] Rob Lockhart to Mountbatten, 6 July, 1947, IOR, L/P&J/S/224 from India Office- also quoted as Annex II to Jinnah Papers Volume III Appendix IV.28
[viii] No. 220, National Documentation center, Islamabad, 1996, 263-264 “The Referendum in NWFP”
[ix] Jinnah Papers, Volume III, No. 68
[xii] Frederich and Mason, eds., Public Policy, Vol I. Cambrdige: Harvard University Press, 1940, p. 329.