Pakistan

The Constitution’s Golden Jubilee: A Glance Into History

Pakistan is celebrating the golden jubilee of its constitution today. This is the country’s first constitution framed entirely by elected representatives and its third constitution overall. While fairly young compared to most of the world, it has seen a long and colourful political history, leading to amendments, suspensions, and numerous changes. But it has proven itself to be rather resilient, and despite a tumultuous past, still stands strong—for the most part.

A Low Bar

Three is not a big number, but when used for the number of constitutions a nation has had in three-quarters of a century, it tends to seem somewhat overwhelming. Pakistan was finally freed from the dreaded British rule in 1947, and then it spent 9 years using the British-made Government of India Act 1935 as its constitutional document. Once the first constitution finally came into existence in 1956—after a long and complicated feud between the government and the constituent assembly, mind you—it was abrogated in two years by President Iskander Mirza and Pakistan got introduced to its first marshal law under General Ayub Khan.

The second constitution came in 1962 and it failed to mention fundamental rights until its first amendment. The constitution institutionalized the intervention of the military in the government by providing that the president or the defence minister must be a person who had held a rank not lower than that of lieutenant-general in the army. It lasted until 1969 when a brand new marshal law was introduced and it was suspended, followed by the state of Pakistan being split in two in 1971. So, the next constitution that was to arrive in 1973 did not have a very high bar to cross and there was clearly very little reason to believe that it would last any longer than the last two, but it did survive, albeit with a few hiccups along the way.

Same Treat, Different Packaging

The constitution provided for a Parliamentary government, making the President the formal head of state but vesting executive power in the office of the Prime Minister. It also included an article, the 6th one in fact, which made the abrogation or subversion of the constitution high treason. And yet, it took all of 4 years for General Zia ul-Haq to stage a coup, declare marshal law, and hold the constitution in abeyance. This time, however, he did not outright abrogate it, he just “temporarily” replaced it with a Provisional Constitutional Order (PCO), giving the military the right to rule, and more significantly, the right to amend the constitution at will. The constitution was reinstated in 1985 but not without a change to the basic framework, giving the President executive power and the right to dissolve the National Assembly at will.

Of course, this article was used in the 1990s not once, but twice. Benazir Bhutto and Nawaz Sharif’s elected governments were dismissed on charges of corruption and when Sharif removed the article in 1997 and gave the power to dissolve the assembly to the Prime Minister, along came Musharraf’s coup in 1999 and the constitution was once again held hostage. As though following a rulebook, these coups all work just about the same way: the constitution is amended to give legitimacy to these coups and the military rule; the bureaucracy is co-opted; politicians are “held accountable”; the military is entrenched in civil and political affairs; a group of political puppets is formed; elections are held to create a false sense of diplomatic legitimacy; and finally, the judiciary is co-opted.

The Role of the Judiciary

What does the term “doctrine of necessity” mean? What are the limits of “necessity”? How far can anyone go in the pursuit of what is “necessary”—whatever that may mean? The answer: there is no such thing as a so-called “doctrine of necessity”. It is by far the weakest, most insulting argument that has been put forth to justify something that is inherently unconstitutional. It is nothing more than a simple phrase to remind us of the time the Supreme Court of Pakistan spit in the face of the people and legitimized the government of a man guilty of high treason. What has been the role of the judiciary throughout Pakistan’s history in the protection of the constitution? It has actively contributed towards its continuous humiliation; the humiliation of the very document that gives it any amount of legitimacy that it may hold.

The successive constitutional crises that confronted the Pakistani courts were not of their own making. But the doctrinally inconsistent, judicially inappropriate, and politically timid responses fashioned by these courts ultimately undermined constitutional governance. The judiciary’s primary role and responsibility in these situations were to ensure the preservation of constitutional order, and every time that they had the power to exercise judicial review of these illegitimate powers, they either failed to do so or bent over backwards to facilitate the tyrant instead. Over the past few years, the judiciary has shown its active participation in its duties and is even moving to the extreme in the opposite direction, being a part of the removal of two Prime Ministers since the end of the Musharraf rule.

Speaking of Musharraf, one other gift that has been left to the people is indefinitely applicable ordinances. The Constitution allows for presidential ordinances to last for no longer than 4 months. Musharraf’s ordinances have somehow sidestepped this limitation and two ordinances immediately come to mind, that amend the basic media laws and prohibit any material that defames or brings ridicule to the Head of State, or members of the armed forces, the judiciary, the executive, or the legislature.

A Hopeful Future

This piece may have turned out more cynical than it set out to be, but we as a nation have a habit of repeating our mistakes to a point where it’s difficult even to make sense of how it all began. But, despite everything, today is a cause for celebration. We have managed to hold on to a constitutional document for half a century. And while it is still far from perfect, the 18th Amendment and the survival of two dictatorships should be reason enough to hold out hope that there is a light at the end of the tunnel. The judiciary is finally coming into its own and people are slowly but surely becoming more aware of their duty to protect the democratic values of our nation. May this constitution lead our nation into better times.

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