The 50th anniversary of the fall of Dhaka, arguably the most painful milestone in our history, resurrected a vexed question: is General Yahya, Sheikh Mujib or Zulfiqar Ali Bhutto primarily responsible for the tragedy of 1971? There is no easy answer, particularly because the conduct of all three persons was egregious in many respects, right from the moment of the general elections on 7 December 1970 to the darkest day of 16 December 1971.
However, if one examines three fateful decisions that were taken in the twelve months preceding the 1970 elections, the answer becomes fairly clear. Those three ill-advised, poorly timed and abrupt decisions not only prepared the ground, but in fact they actually sowed the seeds for the bitter harvest that was reaped through the bloody secession of East Pakistan.
To clarify, it is not my contention that united Pakistan was sundered simply because of these decisions. Clearly, the overall causes for the country’s break-up were myriad and were spread out over the preceding 24 years. However, the three fatal decisions served to destroy the chances of reaching a constitutional balance and compromise between East and West Pakistan and they maximised the prospects of a blood-soaked separation of the former.
The saga unfolded on 28 November 1969. In a radio address, General Yahya Khan, Pakistan’s self-appointed ruler, proposed the election of a constituent assembly to frame a democratic constitution. Undoubtedly this was a welcome development. However, Yahya then announced two arbitrary decisions: the abolition of One Unit and of the system of parity between East and West Pakistan. In order to understand the gravity of the nullification of these two constitutional arrangements, a brief explanation is warranted.
“One Unit” meant the province of West Pakistan which had been formed in 1956 as a result of the amalgamation of the four provinces of present-day Pakistan. “Parity” was the seat allocation formula, whereby each of East and West Pakistan was given an equal number of slots in the National Assembly, notwithstanding the larger population of the former.
On 30 March 1970, the president announced the Legal Framework Order (LFO) to govern the post-election scenario. However, inexplicably, the LFO stipulated that the passage of the future constitution would only require the approval of a simple majority of the constituent assembly!
Both concepts were controversial. One Unit was anathema to the majority of the politicians of erstwhile NWFP, Sindh and Balochistan, since they saw it as synonymous with the domination of Punjab. And parity was universally unpopular in East Pakistan because it negated the numerical majority of the province over the rest of Pakistan.
However, in 1955, One Unit had been accepted by the NWFP, Sindh and Punjab assemblies, and by the Balochistan authorities. Subsequently, One Unit had been approved by the Constituent Assembly and incorporated within the 1956 constitution. Similarly, the parity principle had been upheld by the Constituent Assembly, with the affirmative votes of many members from East Pakistan, and it had also been enshrined within the 1956 constitution.
As One Unit and the parity principle had been adopted by the relevant legislatures/authorities of the day, therefore fairness and constitutional propriety demanded that their future status should be determined by the elected constituent assembly. However, General Yahya did the opposite, and he simply extinguished these provisions by his autocratic executive fiat.
In doing so, Yahya Khan effectively handed over two massive and unilateral concessions to East Pakistan, but concurrently he failed to resolve the critical issue of provincial autonomy, the long-standing bane of the province’s relationship with Islamabad. If Yahya had the power to scrap One Unit and parity before the general elections, then equally he had the power to determine in advance the scope of provincial autonomy, not least to avoid it becoming a viciously contentious election issue. But he chose not to do so.
This grave omission by Yahya cost the country dearly. With One Unit and parity settled in their favour and the scope of provincial autonomy left unclear, Mujib’s Awami League ran the year-long election campaign solely on its Six Point agenda, taking an extreme position on provincial rights. Yahya’s regime remained silent and allowed the League free rein.
Then came the third of Yahya’s misguided decisions. On 30 March 1970, the president announced the Legal Framework Order (LFO) to govern the post-election scenario. However, inexplicably, the LFO stipulated that the passage of the future constitution would only require the approval of a simple majority of the constituent assembly!
The decision presaged the creation of an invidious situation. Since East Pakistan had 162 seats out of the 300 seats of the constituent assembly, therefore just 151 of the MNAs from this province could pass a constitution by a simple majority, for the whole country, totally ignoring the aspirations of the country’s western wing. Interestingly, a proposal to set a minimum 60% threshold for the approval of the constitution (in keeping with globally accepted constitutional approval mechanisms) had been dropped by Yahya, even though many members of the ruling junta favoured adoption of a threshold.
Thus, when the country went to the polls in 1970, the die had already been cast against a united Pakistan. Stunningly winning 160 out of East Pakistan’s 162 seats, the Awami League dug in its heels on the Six Points. Without One Unit and parity, the four provinces of West Pakistan had no constitutional leverage left to make the Awami League adopt flexibility on its maximalist stand on provincial autonomy.
So, while we may argue that the crisis could have been averted had Mujib watered down the Six Points or if Bhutto had agreed to become the opposition leader, the real challenge was the disjointed rules of the game. The Awami League played by these rules and boxed Yahya into a tight corner. The stark prospect of a Six-Point-based constitution was unacceptable for the regime; the obvious denouement followed.
Epilogue: In 1972, the Supreme Court in Asma Jillani’s case declared Yahya’s rule as illegal and invalidated his actions. This begs the question: had Yahya not seized power from Ayub Khan and had National Assembly speaker Abdul Jabbar Khan from East Pakistan become the constitutional acting president, would our history have been different?
The writer is a barrister with over twenty years of varied legal practice in Pakistan, UAE and Australia. He is currently an entrepreneur and the co-founder/operator of an online home-based confectionery business. The history and politics of Pakistan is his abiding passion. He can be reached at firstname.lastname@example.org