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Monday September 26, 2022

Constitutions sans constitutionalism

August 14, 2022

“What is the Constitution? It is a booklet with ten or twelve pages. I can tear them up and say that from tomorrow, we shall live under a different system. Is there anybody to stop me?” (General Zia-ul-Haq)

“I think the Constitution is just a piece of paper to be thrown in the dustbin.” (General Pervez Musharraf)

Democratically minded nations are known for the respect they pay to their constitutions but the above statements reflect a different tangent - and the fact that the common people have seldom challenged such statements makes the picture grimmer. Keith Callard, a renowned scholar and author of “Pakistan - A Political Study,” remarked in 1960, “It is not that Pakistanis lack either talent or interest in political affairs but that, for a variety of reasons, they have chosen to engage in immediate and partisan debates rather than a more dis-passionate examination.” After six decades, things seem unchanged; in fact, the general mindset, naturally shaped by perpetual socio-economic problems, as well as authoritarian narratives, reflect the least interest in the sanctity of the document that is meant to be the law of the land.

Why this indifference? During the last seventy five years we have had three Constitutions out of which two got abrogated by military dictators and the third - still in practice - has suffered suspension, abeyance and due and undue alterations, introduced to fit the designs of one power-contender or the other. Even today, the political elite, the establishment, and the common people, seem to be oblivious to the letter and spirit of the Constitution of Pakistan.A survey conducted by students of History, a few years back showed that about eighty five percent students at higher education institutions consider constitutional matters ‘irrelevant’ or ‘not very important’ for the development of Pakistan. So what went wrong?

The answer may be found in history. The history of a colonial legacy, history of a supra-constitutional ideology, history of a kind of insecurity syndrome suffered by the ruling elite, history of an unfortunate balance of power tilted in favor of non-elective institutions, and above all, history of fateful judicial decisions upholding extra-constitutionalism on the pretext of a doctrine of state necessity. However, before delving into the causative factors, it would be appropriate to understand the term itself. There are many theoretical definitions around, yet the great human rights activist and scholar, I.A. Rahman, has explained the gist of constitutionalism very aptly. “A political creed, voluntarily followed by the custodians of state power, the parties or elements in opposition, and active citizens in order to ensure that they not only act in accordance with the letter of the constitution, but also continuously strive to promote its spirit”. Basic ingredients of constitutionalism include a responsible and accountable government, the separation of powers of executive, legislative and judicial branches of state, popular sovereignty, individual rights and the rule of law. In simple words, constitutionalism is one basic tenet of democracy - emphasizing that in a democratic state, it is not only imperative to have a constitution but also to hold it above all. It must rule the rulers, protect the ruled, and of course guard the ‘guardians’.

Colonial Legacy

What we inherited from the Raj was a colonial constitution originally promulgated in 1935, altered to fit the immediate needs of the new successor states in 1947, providing a dominion status for both India and Pakistan. Despite providing a ‘semblance of responsible government’ under a federal system, the Act of 1935 kept the power in India too centralized for a democratic setup. Nehru called it “a machine with strong brakes but no engine”. This was not surprising as colonies cannot expect to be democratically administered. Interestingly, the role of Governor-General was expected to be more symbolic than proactive. Yet, Quaid-i-Azam Muhammad Ali Jinnah as the Governor-General opted - or had to opt - for a very proactive role. As a Dawn editorial on July 12, 1947 asserted, “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.”

While, India got rid of its dominion status within two-and-a-half years by promulgating a republican constitution, Pakistan was unfortunately unable to do this. Hence, the colonial legacy continued for a longer while.

Above the constitution:

The early deaths the first Governor-General (Jinnah in 1948) and the first Prime Minister (Liaquat Ali Khan in 1951) led to a continuity of authoritarian Governor-Generals, submissive Prime Ministers and the power to be concentrated in an elite coalition of West Pakistan to whom many issues were more important than constitution making. The perceived raison d’ etre for the creation of Pakistan had already been transformed into a state ideology with the passage of the Objective Resolution by the Constituent Assembly in 1949. Nevertheless, more measures were found necessary to save Islam in a ninety seven percent Muslim majority state. The (mis)happenings of 1953 in Lahore, best explained in the Munir-Kyani Judicial Commission’s Report of 1954, showed that the provincial contenders of power were now fully active to extract gains out of popular religious emotions. The Governor-General, Ghulam Muhammad, could also play his cards to dismiss a popular Prime Minister, Khwaja Nazimuddin, on charges of incompetence in controlling the Lahore riots. Later, when the Constituent Assembly tried to curb the powers of the Governor-General, it also had to go home unceremoniously.

On the other hand, power-sharing with the largest province of East Bengal was another nightmare. Formulas were designed to create a parity between both wings of Pakistan. The One-Unit Plan in 1955 provided a foul solution that produced parity and parting of ways between the two wings. Amidst such conditions of mistrust and mismanagement, the first constitution of Pakistan was drafted in 1956, ending the dominion status and promulgating the Islamic Republic of Pakistan under a federal and parliamentary system which was, of course, meaningless in the presence of the One Unit System. The constitution survived for about thirty months before it got abrogated in 1958 by the last Governor-General and the first President of Pakistan, Iskander Mirza - who imposed martial law and paved the way for the khaki to dominate the country. The death of the first constitution of Pakistan was accepted as fait accompli. Soon the Field Marshal Ayub Khan took over to rescue the country from unending political chaos. The grand savior ensued a series of ‘correct’ reforms and banished the bad guys - the politicians who had been ‘responsible for the ills of the country’ - from the political process. The harbinger of a revolution, a new system of Basic Democracies was adopted in 1960, pertaining to the idea that the country was still unable to ‘work out parliamentary democracy efficiently’ and ‘not ready for a full- fledged democratic system’; it should have something more elementary, called in this case, “Basic Democracy” wherein the local self-government would be run by elected basic democrats. By virtue of the new constitution given by General Ayub in 1962, the basic democrats would elect the President of the state as well as the national and provincial assemblies, hence doing away with the principle of direct elections with universal franchise. This system provided a perfect way to defeat any presidential candidate challenging the incumbent President, no matter if the opposition candidate happened to be the popular sister of the founder of Pakistan.

However, the post-1965 Indo-Pakistan War era witnessed a stubborn resistance to the Ayub regime across both wings of Pakistan. This movement could have culminated in restoration of democracy if the power was handed to the Speaker of the National Assembly, according to the Constitution. It was rather handed over to the Army Chief, General Yahya Khan, who abrogated the second Constitution, imposed the second countrywide Martial Law and thus saved the country once again! However, the country could not be saved and was dismembered in 1971. One substantial reason was of course, the failure in transfer of power according to the letter and spirit of the constitutional order called the Legal Framework Order, promulgated and violated by Yahya himself, before the elections of 1970 - the first and the last general elections of united Pakistan.

The broken Pakistan got its new constitution in 1973 - the one which turned the country back to the path of a federal and parliamentary democracy. However, the specter of extra-constitutionalism lingered behind the veneer of the populist democratic regime of Z.A. Bhutto. Nevertheless, this constitution has an internal strength that protected it from an outright abrogation even by two military dictators. Regrettably, the document had to face all kinds of violations short of abrogation.

Constitutions are not God-sent yet they are considered sacred by civilised nations. They guarantee the continuity of democratic norms and protection of peoples’ rights. They are the ‘social contracts’ which provide necessary safeguards against tyranny and usurpation. As a nation, we shoudl respect our constitution as this is the only way we can safeguard our rights that are guarnateed in it.

-Dr Hina Khan is an Assistant Professor at the Department of History, University of Karachi. She can be reached at: hinak@uok.edu.pk)

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