Constitution,
Shonstitution
By Dr. Adil Najam
The Fletcher School of Law and Diplomacy
Tufts University
US
I believe in the sanctity of the Constitution.
I believe that there is no more important document
in the life of a nation than the Constitution.
I believe that respect for the Constitution is
integral to being a respectable nation. More importantly,
I believe in the idea of the Constitution. The
idea that the citizenry of a polity will come
together in mutual agreement on a set of basic
principles, rules, norms, values and decision-making
processes that will govern the governance of that
citizenry. It is precisely because I take the
Constitution as seriously as I do that I cannot
help but make the argument I wish to make. Even
though, for the exact same reasons, it is a painful
thought to contemplate.
The argument, in essence, is that when the spirit
of a Constitution has been trampled -- as it has
been in Pakistan today -- it matters little whether
the letter is followed or not. It is time then
to revisit one's strategy.
Given how ready and willing we have been to discard,
reconstruct, renovate, manipulate, suspend, or
simply ignore our constitution(s), one has to
be amused by the earnestness with which we, as
a nation, indulge in constitutional discussions.
At any given point, everyone seems to be discussing
the intricacies of Article this or Amendment that
with the zest of legal enthusiasts. News channels
spends hours on hours dissecting the nuances of
the legalize and heated debates rage in drawing
rooms and on street corners about which interpretation
is or is not correct; why or why not. Everyone,
it seems, has turned into a constitutional hobbyist.
Such constitutional earnestness should be a matter
of national pride rather than amusement. Unless,
of course, you happen to know Pakistan's constitutional
history. If you do, then it is a matter not only
of bemusement but of sadness. It is sad because
it suggests that our proclivity for constitutional
discussions emanates not from an innate respect
for the Constitution but from a desire to search
forever new ways to manipulate it; or to keep
it from being manipulated. Either case would imply
that the spirit of the Constitution is dead and
what remains is the minutia of technicalities
and wordplay. And that is exactly where we find
ourselves today. In heated debates that are manifestly
uninterested in the spirit of the Constitution
and totally consumed by the letter; or, to be
more precise, totally consumed by debates about
how to manipulate the letter of various constitutional
provisions. It matters not if your manipulated
interpretation of the letter contradicts the original
intent and spirit in which the Constitution was
drafted. Indeed, in some cases -- as with the
current President elections -- that seems to be
the precise purpose of constitutional manipulations.
Gen. Musharraf is fond of saying that whatever
decisions he takes will be according to the Constitution.
It is clear that he intends to do so, even if
it means he has to change the Constitution. Frankly,
the reverence he expresses for the Constitution
is more disturbing than it is impressive. Not
just because his actions belie his words. Much
more so because he did not gain power by following
the Constitution and it is clear that he intends
to now hold on to that power despite the Constitution.
The mind games that Gen. Musharraf's legal eagles
seem to be playing with the Supreme Court and
the nation notwithstanding, the fact of the matter
is that the Constitution has now been reduced
to a 'hurdle' that has to be 'worked around' rather
than an expression of a sacrosanct contract between
the ruler and the ruled. It is a 'hitch,' a 'complication,'
a 'problem' to be solved. Supreme Court or not,
a way will be eventually found to solve the problem;
to work around the hurdle; to remove the hitch;
to untangle the complication. In this process
of 'problem solving', the intent of the Constitution
-- giving the public an honest, fair, and democratic
opportunity to choose who rules them -- will not
only be ignored, it will be made irrelevant.
If this is indeed so, then does it really matter
if the letter of the Constitution is abided by
or not? What good is it to maintain the façade
of constitutionalism, if it is merely to manipulate
the Constitution at will and with such abandon?
And is the much-amended patchwork Constitution
that we have -- defined as it is by a series of
autocratic dictates approved by rubber-stamp parliaments
-- really worth holding on to? Can a truly democratic
polity really be constructed out of such a maligned
and manipulated document?
These are not easy questions to ask. Especially
for those of us for whom constitutionalism and
rule of law are non-negotiable tenets of good
governance. Yet, it may be time now to ask exactly
these questions.
The purpose of asking these questions, however,
is not to invite the imposition of extra-constitutional
means of governance. It is, instead, to suggest
that the letter of the Constitution has been so
deeply compromised today that it is no longer
in sync with the spirit in which it was originally
crafted. It is time, therefore, to refocus our
energies on the spirit of the document instead
of getting distracted by the manipulations of
the letter. For those who believe in constitutionalism,
the framework for action must no longer be merely
to ensure that the letter of the Constitution
as it stands today is not manipulated any more
than it already has been. The challenge, instead,
is to restore the Constitution to its original
spirit. This implies an action agenda directed
at the full and uncompromised restoration of the
original 1973 Constitution.
The charge against those of us speaking for constitutionalism
is that out current strategy is constrained by
its own lack of ambition. Because such efforts
are single-mindedly focused on ensuring that the
Constitution as it now stands is compromised no
further, therefore it validates, de facto, all
the compromises that have already been incorporated
into the Constitution. In accepting prior compromises,
it not only leaves the door open for, but also
invites future compromises. The more appropriate
goal should be to seek a return to the original
1973 Constitution. Let's get to a clean slate
and start all over again. The point of departure
in our quest for constitutionalism should be that
original document.
Once a truly democratic system and parliament
is back in place -- as one hopes will happen --
it could clearly amend it to their heart's content.
Possibly, even bring back any of the scrapped
amendments. But let us cross that bridge when
we come to it. For now, let us at least set our
gaze upon an ideal, which even if not really attainable,
is worthy of aspiration. If we are going to be
dreamers -- and anyone calling for constitutionalism
in Pakistan is, by definition, a dreamer -- then
at least let our dreams be glorious ones.
(The writer is a Professor of International Negotiation
and Diplomacy at The Fletcher School of Law and
Diplomacy, Tufts University, USA, and founding
editor of Pakistaniat.com)
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