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Constitution and equality

By Mohammed Sarwar Khan
December 31, 2021

The constitution is at its most prominent when the ruling elite’s interests are affected and agitated before the courts. But, arguably, more pernicious is the silent departure from the over-arching constitutional goals that guarantee to ordinary citizens a “good life”.

The constitution explicitly promises “an egalitarian society”, evidencing the centrality of equality in our constitutional thinking and ambition. Like democracy, tolerance and social justice, equality is raised to the level of a ‘principle’. The preamble is one of the oldest parts of the constitution and 75 years on, it certainly begs the question: what happened to the constitutionally promised egalitarian society? How can we justify the increasing inequality imposed on our society? In our context, this is not purely an economic question, it is also a core constitutional question.

In fact, we are so far removed from the goal that any meaningful notion of equality and egalitarianism has vanished from our public and political conscience and discourse. Let alone a positive constitutional goal to create, as the constitution puts it, “a new order”, it hardly even features as a critique. It is a deeply worrisome trend that is allowing inequality to advance surreptitiously without any public comment.

The constitution is a fundamental political settlement, the basis on which state and society are notionally created, and by which state and government operate and distribute power and authority. Chapters on Fundamental Rights and Principles of Policy elaborate the constitutional goals to inform a more comprehensive framework and narrative on equality, social justice and the quality of state and society that it envisages and promises.

The constitution also embodies fundamental values and goals that society has committed to and which constitute the basic constitutional and political morality for state and society. Equality, which the American legal philosopher, Ronald Dworkin, termed as “a sovereign virtue”, is one of those fundamental values. In the constitutional elaboration, it includes “equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association …”. The Fundamental Rights also attest that “all citizens are equal before the law” and, as such, “entitled to equal protection of law” (Article 25). The constitution specifically promises “equality” for minorities, women and children, “backward and depressed classes” or areas and endorses positive or affirmative action when required. And every person is “to enjoy the protection of law and to be treated in accordance with law is the inalienable rights of every citizen” (Article 4).

In addition to equality of personal worth, autonomy and “inviolable” dignity (Article 14), the constitutional conception for equality also has a direct resource and distributive implication. It mandates the state to “reduce the disparity in the income and earning of individuals” based on the “fundamental principle, from each according to his ability to each according to his work”. To “secure the well-being of the people, irrespective of sex, caste, creed or race, by preventing the concentration of wealth and means of production and distribution in the hands of a few to detriment of general interest … “. For those who are unable to work by reason of infirmity, sickness or unemployment, to provide “basic necessities of life” irrespective of sex, caste, creed or race.

By making these matters constitutional, it raises “equality” issues beyond the ordinary and everyday politicking and gives the judiciary a pre-eminent role to ensure their proper construction and implementation. In other words, constitutionally-mandated goals, values and principles are not entirely left to ordinary political discretion. The special procedure for constitutional amendment protects such values from being changed by a simple majority political decision and ordinary legislation. This draws into question the judiciary’s responsibility for leading to us to a place where constitutional and political morality have been so eroded that constitutional values such as equality no longer matter. Moreover, judicial reasoning has effectively lost sight of the moral foundations of the constitution.

While constitutional reasoning demands ‘integrity’ – consistency and harmony in interpreting the various Constitutional provisions, goals and underlying values – the dominant positivist mode of judicial reasoning separates constitutional (and legal) provisions from the essential constitutional values, goals and morality. Consequently, in over 75 years, we have failed to jurisprudentially explain and elaborate the meaning and application of “equality” and “egalitarian society”. The judiciary has failed to develop a jurisprudence that meaningfully incorporates the constitutions goals, by, for example, construing “equality” as a value to be realised by all sectors of state and society and an interpretive anchor for judicial reasoning.

Whatever little discussion there is on substantive (in-)equality, it is derided and dismissed as old lefty, socialist thinking that has been discredited with the collapse of the Soviet empire or has been replaced by the donor-development ‘inclusion’ and ‘inclusivity’ jargon. Yet providing subsidies to the corporate sector is, arguably, also socialism, but since it benefits the well-off it is conveniently ignored and presumably accepted by governments and the ruling elite as a ‘fair’ distribution of public resources. This debate is actually not about socialism or any other ideology, it is about the constitution, its goals and values.

It is this intellectual shallowness that has led us to an uncritical acceptance of neo-liberalism and the displacement of constitutional values. In key sectors such as health and education, it has become necessary to ask: what is the role of the state? A service-provider, regulator or a conflicted bit of both?

Since markets are embedded in society, deregulated or weakly regulated markets tend to exacerbate and amplify societal biases, inequalities, privileges and inequities. Left to their own, markets are predatory. That is not what the people of Pakistan bargained for and endorsed in their constitution.

Given that we are so far removed from the essential constitutional goals and values, the Supreme Court needs to provide a clear statement of its interpretative policy and methods so that there can be more transparency and debate on the quality of judicial reasoning and decisions. Reasoning that has failed to highlight the moral foundations of the constitution detaches the construction and implementation of constitutional textual provisions from the overarching constitutional goals and essential values demands a justification that satisfies the public’s legitimate expectations about the constitutionally promised society and good life. It is only then that we can begin to rein in government, ruling elites and their public policy priorities back in line with constitutional morality and ambition that puts the ordinary person first.

The writer is a former secretary, Law & Justice Commission of Pakistan.