Constitutional
Failure, Denial of Democratic Mandate, and State Responsibility
Abstract
The military regime of General Agha
Muhammad Yahya Khan (1969–1971) represents the gravest constitutional and
political breakdown in Pakistan’s history. This article examines the legal and
institutional failures of the Yahya Khan regime, focusing on the abrogation of
constitutional governance, the denial of the democratic mandate arising from the
1970 General Elections, and the use of military force against a civilian
population. It argues that the regime’s actions constituted a fundamental
violation of constitutional principles, democratic norms, and state
responsibility, culminating in the secession of East Pakistan and the creation
of Bangladesh. Drawing upon authoritative documentary sources, official inquiry
reports, and established scholarship, the article concludes that the
disintegration of Pakistan in 1971 was not an unavoidable outcome but the
direct result of unlawful and illegitimate governance choices.
Keywords
Martial Law; Constitutional
Breakdown; Democratic Mandate; 1971 War; East Pakistan; State Responsibility;
Civil-Military Relations
I.
Introduction
The constitutional and territorial
collapse of Pakistan in 1971 remains an unparalleled tragedy in South Asian
legal and political history. General Yahya Khan assumed power on 25 March 1969
following the resignation of General Ayub Khan, dissolving constitutional
governance and imposing martial law. While Yahya Khan pledged a transition to
democratic rule, his regime ultimately presided over the denial of electoral
legitimacy, internal armed conflict, and foreign intervention.
This article critically evaluates
the Yahya Khan regime through a constitutional and public-law lens, assessing
how executive lawlessness, abuse of emergency powers, and failure to honour
democratic outcomes destroyed Pakistan’s legal and institutional foundations.
II.
Martial Law and the Abrogation of Constitutional Order
Upon assuming office, Yahya Khan
abrogated the Constitution of 1962 and governed through martial law
regulations. This action removed judicial oversight, suspended fundamental
rights, and concentrated unchecked power within the military executive.
From a constitutional perspective,
the prolonged absence of a legal framework violated core principles of the rule
of law and constitutional continuity. Martial law ceased to be an exceptional
measure and instead became a substitute for lawful governance, thereby
undermining the legitimacy of the state itself.¹
III.
The 1970 General Elections and Constitutional Entitlement to Power
The General Elections of December
1970 were conducted on the principle of adult franchise and produced a clear
and unambiguous result. The Awami League, led by Sheikh Mujibur Rahman, secured
an absolute majority in the National Assembly, thereby acquiring a
constitutional entitlement to form the federal government.
Yahya Khan’s refusal to convene the
National Assembly and transfer power constituted a direct violation of
democratic norms and representative governance. The deliberate postponement of
the Assembly session amounted to an unconstitutional negation of popular
sovereignty.² This decision marked the point at which political disagreement
transformed into constitutional collapse.
IV.
State Use of Force and the Legal Implications of the 1971 Military Operation
On 25 March 1971, the Yahya Khan
regime initiated a large-scale military operation in East Pakistan. While
framed as a law-and-order measure, the operation extended far beyond legitimate
state authority and involved indiscriminate force against civilians.
The Hamoodur Rahman Commission later
acknowledged serious excesses, lack of proportionality, and failure of command
responsibility.³ From a public-law perspective, the operation represented an
abuse of emergency powers and a violation of the state’s obligation to protect
its own citizens.
V.
Humanitarian Crisis, Refugee Exodus, and Internationalisation of the Conflict
The military action in East Pakistan
precipitated a humanitarian disaster. Millions of civilians fled into India,
creating a refugee crisis of international magnitude. This development
transformed an internal constitutional dispute into an international conflict.
Pakistan’s failure to resolve the
crisis through political means weakened its legal and moral position in
international forums and provided justification for external intervention.⁴
VI.
The 1971 War, Surrender, and State Failure
The Indo-Pakistan War of December
1971 resulted in the complete military defeat of Pakistan’s eastern command.
The surrender of approximately 93,000 military personnel represented the most
significant capitulation by a state since the Second World War.
Legally and institutionally, this
defeat signified the failure of the state to fulfil its primary obligations of
territorial integrity and citizen protection.⁵ The emergence of Bangladesh
marked the irreversible consequence of constitutional and executive failure.
VII.
Economic and Institutional Consequences of Secession
The loss of East Pakistan inflicted
severe economic damage. East Pakistan had been a major contributor to export
earnings and industrial production. The war further destroyed infrastructure
and depleted national resources.
Institutionally, the events
entrenched military dominance in governance and weakened civilian
constitutionalism. These structural distortions continue to affect Pakistan’s
legal and political development.⁶
VIII.
Accountability and the Hamoodur Rahman Commission
The Hamoodur Rahman Commission
Report remains the most authoritative official assessment of the 1971 crisis.
The Commission identified failures of leadership, lack of discipline, abuse of
authority, and moral collapse within the ruling elite.
Despite its findings, meaningful
accountability was never enforced. The absence of legal consequences for
constitutional violations reinforced a culture of impunity within Pakistan’s
power structures.⁷
IX.
Long-Term Constitutional and Legal Implications
The Yahya Khan period permanently
altered Pakistan’s constitutional trajectory. It normalised
extra-constitutional rule, weakened parliamentary supremacy, and entrenched
civil-military imbalance.
From a jurisprudential standpoint,
the events of 1971 underscore the necessity of constitutional supremacy and
judicial independence as safeguards against state disintegration.
X.
Conclusion
The disintegration of Pakistan in
1971 was not the product of inevitability or external conspiracy alone. It was
the direct result of unconstitutional governance, denial of democratic rights,
and the unlawful use of state power under General Yahya Khan’s regime.
This article demonstrates that
constitutional legitimacy, democratic accountability, and restraint in the
exercise of executive authority are essential to state survival. The Yahya Khan
era stands as a cautionary legal precedent illustrating how the abandonment of
constitutional principles can destroy a nation.
Footnotes
Lawrence
Ziring, Pakistan: The Enigma of Political Development (Kent State
University Press, 1980) 134–136.
1.
Hassan Zaheer, The Separation of
East Pakistan (Oxford University Pres,s 1994) 112–115.
2.
Government of Pakistan, Report of
the Hamoodur Rahman Commission (Government Press 1974) 26–29.
3.
Richard Sisson and Leo E Rose, War
and Secession: Pakistan, India, and the Creation of Bangladesh (University
of California Press, 1990) 181–184.
4.
Stanley Wolpert, Zulfi Bhutto of
Pakistan (Oxford University Press 1993) 88–90.
5.
Lawrence Ziring (n 1) 158–160.
6.
Hamoodur Rahman Commission Report (n
3) 62–65.