On the 75th anniversary of Independence, a look back at Pakistani democracy’s most-enduring achievement, the 1973 Constitution
s we celebrate 75 years of Independence, we can also breathe a sigh of relief that we are about to cross almost 50 years of enacting the 1973 Constitution of Pakistan.
The present constitution was negotiated in the immediate aftermath of having lost the territory of East Pakistan in 1971. It has done well to hold together the territories of the Federation since then. This is no small feat when we consider that the 1973 Constitution stitches together at least four historically distinct and ethnically diverse territories. Not only were the territories recognised as separate geographic units but the people living in each region were a nation in their own right.
This is how each unit and its inhabitants, for centuries, have had their own history, norms, culture, language and ethnicity. Each unit had been larger, and it was through international law means like the Radcliffe Award, instruments of accessions and referendums that parts of these larger units and regions were pronounced as territories forming the state of Pakistan. These international law instruments could not do a clean surgery around 1947 for multiple political reasons, and therefore some Baloch tribes and territories were left on the Iranian side, the Punjab was divided between India and Pakistan, the Pathans were split between Pakistan and Afghanistan and Sindhis on the Pakistani side were separated from those on the Indian side. Therefore, it is perfectly understandable that there will remain cultural and even political undercurrents to pull away from the young Federation, and that can only be overcome by allowing greater participation in the affairs of the new Federation.
In this historic context, the nationalist sentiment as sometimes expressed by regional tribal leaders, their poets and authors should not be misread or mischaracterised as a betrayal of the Federation.
That is where the role of political forces becomes crucial to keep the Federation intact. Both the small political parties of each federating unit representing their respective ethnic groups and the national political parties bond together through the constitutional instrument. Only the political forces can persuade their followers to relinquish the dream of reuniting and instead extend loyalty towards the Federation. That is why, the very existence and uninterrupted continuation of political forces per se is a national security compulsion.
Since no federating unit can be compelled for long by force alone, it is the political party or parties that bring the necessary voluntary compliance and loyalty, on behalf of their people, towards the constitutional instrument. This ‘voluntary’ following is the major long-term achievement of the 1973 Constitution.
Since it was negotiated with the consent of all the regional parties belonging to all the federating units, it is absolutely necessary not to upset this finely reached balance. Replacing it with a presidential form of democracy or forcing any other system will be an irretrievable disaster. An authoritarian approach will push the federating units to start rethinking disengagement. Constitutionalists tell us that in the case of a country formed by diverse societies and ethnic groups, only a consensus-based constitution will work. That is how, a finely balanced instrument like the 1973 Constitution had to be negotiated in order to accommodate the interests of diverse nationalities and geographical units. At present, one does not notice that kind of consensus for any other form of government.
Let us be clear, the governance of any diverse group is a challenge. We - the Federation of Pakistan - are not a composite of only four major national identities but comprise several other identified sub-nationalities that have emerged over a period of time like the Urdu speaking citizens, Gilgitis, Baltis, Hazaras, Seraikis and Kashmiris – to name just a few. Such a diverse society cannot be yoked under an inflexible system like one-party rule or one-man rule. An oversimplification will strike at the very heart of the federation’s cohesive spirit.
All political, economic, constitutional and foreign policy decisions have to be taken by consensus. That is why, the parliament, where these decisions are debated and given legislative shape, assumes such significance. One man can never assume a monopoly over wisdom, neither can a single party or any institution. It is the supremacy of, what is called the ‘collective will’ in Western theory and the ‘rule of consultation’ in the Holy Quran, that needs to be ensured and which is achieved by the Constitution by installing a parliament. The more you take decisions away from the parliament, the more you weaken the ‘collective will’ or the ‘rule of consultation,’ thereby, weakening the federation.
It was the collective will of the people of all the federating units that was behind the passing of the 18th Amendment which brought in the promised devolution and along with it landed several irritants in governance. The said irritants or obstructions are manageable. The much-ignored Ministry for Inter-Provincial Coordination holds the key to coordinating amongst all the federating units to prevent inconsistencies in provincial executive and legislative actions. It should have a secretariat and staff no less than that of the Prime Minister’s House and can be the conduit for cooperative federalism.
Since it was negotiated with the consent of all the regional parties belonging to the various federating units, it is absolutely necessary not to upset this finely reached balance. Replacing it with a presidential form of democracy or forcing any other system will be an irretrievable disaster. An authoritarian approach will push the federating units to start rethinking disengagement.
Political decision-making by various political parties should not be interfered with extensively by non-representative institutions. For instance, the Supreme Court or High Courts, for that matter, may be comprising competent legal minds but being unelected they can at best represent their opinions on legal principles. Whenever a judgment of one or a few judges is seen as replacing the will of the people, it is met by a serious reaction from the people. This phenomenon has become much more pronounced lately.
The contemptuous statements or comments on social media, today, are prosecutable offences but they also serve as an unfortunate alert that the judiciary, for the last decade or so, has ventured too far into the domain of governance and political matters by replacing its views with the judgment of the people. One notices that the judiciary receives most vicious attacks when its judgments have the effect of belittling a political leader on account of qualification or for justification to hold office or on another pretext. It is established now that people of the federation have long-term fondness for their political parties and their respective leaders. We are, in a way, thankful for this and also for their division on political basis – it would be an unmanageable nightmare if they were divided on sectarian or ethnic basis.
The same goes for the Armed Forces that are led by a commander whose way of thought and views are adopted by the entire force given the military culture. So, the military thought process changes with the change of command which occurs, on an average, every three years (sometimes six). This means that the time-period in which the commander wants to achieve and correct everything is on an average three years.
The political parties, on the other hand, have a lifecycle beyond the lives of their founders or leaders. They plan their political moves, developmental projects, alliances with regional parties and linkages with foreign states for three to four decades at least. The disconnect in approaches to resolve crises can lead to the military brass coming into conflict with political forces although they agree on certain strategic matters. It is submitted that decision making has to be yielded to political forces as that is the essence of the main covenant that binds the Federation, namely the 1973 Constitution. This realisation is gradually setting in. Army veterans, who have earlier served during a military rule, have directly seen the adverse repercussions of their decisions. They concede privately that military rule or one individual’s wisdom is no match to the consensus-based decision making by political forces.
The media has applied pressure. Further, the major push back has come from political parties themselves and that too from the leading ones. In recent times, from mere occasional editorials or voices of a few activists, the narrative about non-intervention by the military in civil matters has been mainstreamed by Nawaz Sharif who made it loud and clear, and then Imran Khan, who has shaken everything. The thesis that military solutions have a short shelf life - is being hardwired into the hearts and minds of followers of both parties. Digital space freedom has, in some cases, crossed limits to drive the point home.
The Constitution is now a much heavier undertaking than when it was negotiated from an international law standpoint. The federation, since 1973, has entered into thousands of international treaties and conventions with states and international organisations. Rule of law now also means implementing these treaties. The said implementation may cause discomfort to people in some ways such as compulsory documentation of economy, or counter terrorism operations under the UN law, or disabling a non-state actor or restricting certain businesses and so forth.
That is again where the support of the political force or a political party is crucial in making the agreed international obligation acceptable to the people. The good document has protected us from irresponsible narratives of non-state actors as well.
Going forward, the federation faces an unprecedented financial crises. The political forces have to talk to one another and separate the state specific agenda of stabilising the economy from the regime specific quarrels that would continue. If they do not sit and talk then they are to be blamed for allowing ceding the space to non-elected institutions. They can sit in the parliament or any of its committees or perhaps convene a full session of the National Economic Council (NEC) that comprises the PM, chief ministers and economic experts nominated by all the provincial governments. With PML-N at the Centre, the PTI in territories of two provinces and the PPP in one, it is a setting where all have interest in the economic development of provinces. The NEC has a constitutional mandate to review the overall economic condition of the country. It can perhaps meet on a day-to-day basis – the way parties sat in a row for the 18th Amendment sessions and can come out with a list of tangible steps like rupee-dollar parity control mechanism, a list of entities to be privatised, time bound revival of economic zones, energy and petroleum sector management, steps for fulfilling CPEC legal commitments, broadening of the tax base, SROs for fast tracking transit trade, interfacing with American and European businessmen to bring investments in economic zones and the like.
To facilitate these measures, other immediate steps will need to be taken without delay. For example, an SRO or appropriate legal instrument can be enacted to protect top 200 taxpayers from frivolous inquiries and tasking them to bring FDI in their JVs and to incentivise them to conceive and implement projects that create employment.
Entrepreneurship is a high-level skill that government does not possess. It should not scare away those who have it. Issuing of directives by Law Ministry under the Civil Servants Act to protect good faith actions of those civil servants of the federal and provincial governments who approve public-private partnership agreements, JVs, concession agreements and so forth is also necessary.
Since there is a given constitutional mandate to have friendly relations with all nations, the heads of political parties should agree that while they fully support independent foreign policy, they will honour the treaty commitments with each state. It should be a policy that Pakistan shall base its relations on agreed and well notified treaty commitments that the state of Pakistan has with inter-alia United States, China, Russia, Saudi Arab, Iran and so forth.
The well-negotiated 1973 Constitution serves as the treaty uniting at least four territorial units and local nationalities. It continues to be accepted by all regional and national political parties who have a clear mandate to function, deliberate, form government, form opposition, disagree, object, take executive decisions and extend legislative promises to the people they rule. So let it be.
The writer is an Advocate Supreme Court and a former Caretaker Federal Law Minister. Email: firstname.lastname@example.org