Sunday February 25, 2024

Quarreling with the constitution

January 27, 2022

A nation that regularly quarrels with its constitution requires immediate treatment of its social, political and moral decadence. Even the finest constitution on earth cannot change those who lack courage, allowing themselves to be enslaved and captured by a corrupt elite. No constitution will work in a country where people violate oaths with impunity and breach promises and where the rich and the mighty are above the law. The constitution needs a particular sort of behaviour for its working – the courage to question authority. Obedience to rule of law must be habitual among people.

It is indeed surprising that other South Asian countries, despite similar issues of poverty, illiteracy and economic crises, never thought of changing their constitutions. They also did not allow disruptions in the democratic process, and this continuity in democratic systems led them to reasonable levels of prosperity and social uplift. On the other hand, in Pakistan, despite big claims, with every passing day society is travelling backwards and becoming regressive and extremist. Even after several military interventions and three constitutions, a tendency to change the system lives in many circles without a genuine cause. Perhaps, it has to do with our short memories and overplayed misguided ideas of messiahs who will find a cure for our ills.

Bangladesh, India, Sri Lanka, Nepal and Bhutan are now way ahead of Pakistan on social and economic indexes simply because after trials and errors they learnt and understood that the road to progress goes though the planes of democracy, rule of law and constitutionalism. The fundamental difference between other countries of the region and Pakistan appears to be that others were never infected by a security syndrome. Moreover, for better or worse, they had no ‘overlords’ watching over the system and propagating changing ideologies and policies.

The biggest enemy of Pakistan is instability – a self-inflicted and fatal wound for which everyone is to be blamed. Leaders of other countries have their roots in the people who have their say through them in all areas of national decisions and policies. Parliaments and assemblies are empowered after having been elected without any interventions and the elections are undisputed. Democracy is all about openness in the affairs of the state.

This debate about the system of government is not new. The constitutional history of Pakistan shows such moves are made continually to disrupt the working of the constitution. It is clear that representatives of the people were always clear about the form of government, and its earliest manifestation can be found in the Objectives Resolution of March 1949. There has been a consensus that the parliamentary form of government suits the genius of the people of Pakistan. Due to the peculiar nature of the federation, only a parliamentary form of government and political parties of national stature can augment the fragile and tenuous relations among the people of different provinces and areas and the federation.

The current debate however seems to be an effort to get out of the blind alley to which powerful quarters have been pushed by the 18th Amendment. There could be other and better ways to move the lid, though. If the purpose is to install a strong chief executive who could singularly handle mammoth problems Pakistan is faced with, it should be recalled that the present constitution was modelled on the prime ministerial form in the background of the events of 1971. It was later on tweaked by the 8th Amendment and more recently by a judicial interpretation in the Mustafa Impex case (2016). The original 1973 constitution envisaged a strong chief executive. A powerful chief executive unanswerable to parliament would act like a dictator – a great peril to liberties.

India adopted its constitution by 1949; there could be no excuse for wasting several precious years in making the first constitution. It could have ended this recurring debate once and for all. The establishment found its way to the corridors of power to undermine and then disrupt the constitution-making process as reflected in the dismissal of the government and the Constituent Assembly in 1954. The 1956 constitution was the most democratic and comprehensive constitution, but it was not allowed to work. In less than two years of its coming into force, it was abrogated. The 1962 constitution, as rightly pointed out by several writers, was the handiwork of the late Manzur Qadir, who created constitutional apartheid, as two institutions, the military and the judiciary, were made immune from constitutional accountability. The Supreme Judicial Council and the non-extension of writ jurisdiction to the armed forces were a negation of rule of law.

Also, people had no control over the financial resources of the state as the financial provisions in the constitution did not provide for the Appropriation Act. As a result, the defence budget would not come under the scrutiny and control of the assembly. The constitutional ideal of no taxation without representation, though contained in the constitution, was a hollow promise. The 1962 constitution was the manifestation of a mindset that believed that ordinary people in Pakistan were not fit for direct democracy. As expected, being against the chemistry and aspirations of the people, it had a short life and evaporated with the departure of its creator, the late field marshal.

A careful study of the legal framework order (LFO) of 1970 under which the elections of 1970 were held would show that the main features of the future constitution were already determined in the LFO. Despite a debate spanning over thousands of pages and consuming over a month (8 March 1973 to 12 April 1973) of public time, many provisions of the 1962 constitution found their way to the 1973 constitution. It seems that the establishment and the judiciary did not allow any changes in their previous structures, powers, privileges and immunities.

The constitution has survived many abeyances and has been amended several times. Its original structure and spirit have undergone multiple changes. It is surely not a perfect document. There is a scope for improvement to bring it in conformity with its ethos as given in its preamble.

Amendments can however only be made without violating the constitution’s salient features as identified in several pronouncements of the Supreme Court. Its norm, contained in the first paragraph of the preamble – that authority in Pakistan shall be exercised through the chosen representatives as a sacred trust – has remained an elusive dream, but it cannot be allowed to be mutilated. It is time to realise this dream by allowing the people’s representatives to lead the nation without overlords and tribunes. The future of Pakistan lies in obeying the constitution.

The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan.