WE celebrate today the 58th anniversary of our country’s independence. As we look back and take stock, much has happened of which we can be proud. The economy has surely diversified and expanded. The number of those who may be classified as wealthy has increased greatly. So has the number of women active in government, politics, business and industry. There is advance (outside politics) in the art of associating together to pursue the common good.

There is greater freedom of expression all around. A lot more is being produced in the area of literary and visual arts — fiction, poetry, painting, music, dance. We also have more of praying and fasting, and we are offering much greater assistance to charitable institutions than before.

There is also reason to be regretful. Education at all levels has declined, tolerance of religious differences has decreased, resort to violence has increased, law and order have virtually broken down. Corruption and incompetence in government and politics have reached scandalous levels.

Those in power have become addicted to arbitrariness. While there is unceasing talk of the supremacy of the Constitution and the worthiness of democracy, neither the government nor the opposition have any use for them. It is the last of these matters, constitutionalism and democracy, to which I wish to address today.

Through much of history absolute kings ruled in most places and acted as the spirit moved them, professing responsibility to God but none to any human agency. Then came a time when the king’s subjects, first the feudal lords and then the people at large, got the idea that they were entitled to certain rights (such as those to life, liberty, and property) and freedoms (such as those of belief, expression, and association) that the king should not be able to take away. In England, the lords wrested from their king assurances of respect for their rights (Magna Carta, 1215). Later, those belonging to lower stations did the same.

Before we go further, let us say that constitutionalism is, first and foremost, the denial of arbitrariness on the part of governments. Their actions must not transgress the bill of permissions and prohibitions, known as the Constitution, which stands as the fundamental law of the land, higher than any statute law made by the relevant organs of the state, to which such law must conform.

In his celebrated work, Rights of Man, Thomas Paine observed that America’s constitutions (federal and state) were to liberty “what grammar is to language.” A constitution was antecedent to government, which was its creature. It defined the authority that the people concerned had committed to their government, indicating its limits. Exercise of authority beyond these limits, he said, was exercise of “power without right.” When there is no check on the will of the government, the state is in fact a despotism.

Paine was referring to a written constitution, the type that spread from America to France, and then to many other countries of Europe and, later, Asia. Great Britain did not, and still does not, have a written constitution, which led Paine to say that it did not have one at all. This was not quite true even in his time. Limitations on the government’s arbitrariness, even though unwritten, have been firmly entrenched in the British tradition.

Sir Edward Coke (1552-1634), lord chief justice of England in the early 17th century, believed that the English common law worked to protect the subject’s liberty against arbitrary rule. Neither the king nor parliament was actually sovereign. “Sovereign power,” he wrote, “is no parliamentary word. ... Magna Carta is such a fellow that he will have no sovereign.”

We in Pakistan have never been without a constitution except when a general ruled the country according to his own will and whims. Starting with the Government of India Act of 1935, we have had three more constitutions. The latest, framed in 1973, is still alive in a manner of speaking even though it has suffered two extended suspensions and several scores of mutilations inflicted by military rulers. But even when the Constitution is supposedly operative, the powers-that-be find ways of ignoring or evading it.

This cavalier approach to the Constitution should be understood in light of our native experience. We have had a long and unbroken tradition of absolutist kings, who followed the law of God selectively in their personal conduct, and ignored it altogether when it came to their pursuit of power and measures for preserving it. Since the king himself was the source of secular law, he disregarded or changed it at will.

The ordinary folks perceived the king and his agents as rapacious tyrants and had no incentive to obey his law. They disregarded it if they could do so without inviting penalties.

No wonder then that we never developed the habit of obeying the law from an inner conviction that if it became customary not to obey it, then as Plato had cautioned, “cities would come to ruin.” We followed custom more willingly than we followed laws made by the government. The British introduced us to the idea of the rule of law and we showed it a measure of respect. But a decade or so after they had departed from our soil, we began to return to our nativity.

King James I was once telling Sir Edward Coke of his plan with regard to some issue of public policy. After hearing him out, the chief justice said: “But Sire that is against the law.” Indignantly the king retorted: “Are you saying that the king is under the law?” Gently but firmly, Sir Edward replied: “Sire, the king ought not to be under any man, but he is under the law.” Few indeed have been men in our historical experience who spoke thus to their superiors. In our society those in authority act the way they do because they like it that way, because it pleases them, and their subordinates or cronies will go out of their way to assure them that their pleasure is above the law.

A constitution may not be so sacrosanct that it cannot be touched. But all will agree that, being the country’s fundamental law, it should not be changed frivolously or merely to suit the convenience of rulers as they come and go. That which should not be done has been done in Pakistan during periods of both civilian and military rule, particularly the latter. General Ziaul Haq and, more recently, General Musharraf have inserted several changes in the Constitution of 1973, making it incoherent and internally inconsistent, and in some respects impossible to implement.

It may be noted in passing that it was never the intention of the framers of our successive constitutions to exclude arbitrariness altogether from governmental decision-making. Read the chapter on fundamental rights in the present Constitution and you will find that the government of the day is authorized to suspend or curtail many of these rights to “safeguard” the country’s sovereignty, integrity, security, ideology, public order and tranquillity, foreign relations, and the “glory of Islam.”

The people may, on occasion, rise in revolt against their government’s misuse of power. But it is normally the function of the higher judiciary, invested with the power of judicial review, to preserve the integrity of the Constitution and enforce the public authority’s fidelity and conformity to it.

In the early Stuart period, British judges did not restrain the king’s arbitrary transgression of the law and invasion of established rights. Many of them were not honest, able, impartial, and independent. As one historian of this period, Henry Hallam (1777-1859), put it, some of them deviated from the right path in “hope of promotion, many more because they were fearful of removal or simply awestruck by the frowns of power.” This state of affairs did not cease until the Act of Settlement (1701) took the tenure of judges out of the king’s control.

No one in Pakistan has ever argued that members of our higher judiciary, who are empowered to examine the constitutional validity of the government’s injunctions and actions, are uniformly unreceptive to wire pulling or intimidation. Many in our legal community believe that amendments to the Constitution must not be such as may be calculated to change its basic structure. That has nevertheless been changed by the intrusions of Ziaul Haq and Pervez Musharraf, but the Supreme Court of Pakistan has never invalidated their action on that ground. In fact our judges have often gone out of their way to be deferential to executive authority, especially when generals exercised it.

Constitutionalism has little relevance outside the context of democratic governance. Democracy in Pakistan has remained fragile for the same reasons that the rule of law and fidelity to the Constitution have been faltering. Constitutionalism and democracy are so closely interlinked that one cannot thrive without the other. Democracy does not function well in Pakistan because neither the ruling elite, nor even the counter-elite, really value it.

Given half a chance, they would rather rule as they might deem fit and as it might suit their convenience, without having to justify their conduct before any forum. Given to arbitrary use of power, placing personal gratification above the public interest, they have no desire to discover the public interest through the processes of discussion and debate. As they see it, persons who disagree with them stand in the way of their fulfilment, and they deserve to be ignored and, if possible, removed. I am not altogether certain that the generality of our people do not share the same dispositions. Respect for the law, self-denial, and tolerance of the opponent come at a very high level of civility from which we, as a people, appear to be still some distance away.

But we must keep moving in that direction. Democracy is, among other things, a habit of the mind and it takes time to cultivate.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, USA. E-mail: anwarsyed@cox.net

THE stereotype of a jail in Pakistan has not altered over the years.

One still pictures scraggy and unkempt under-trial prisoners huddled together in under-ventilated concrete blocks, peering out of stingy and sooted windows, eating bad food and rubbing shoulders with convicted thieves, murderers, drug smugglers and foreigners who have overstayed their welcome in the land of the pure; and all co-existing under the watchful eye of shabby, seedy and tiredly corrupt prison staff.

It is an extension of a dreamy, druggy delirium of fin-de-siecle decadence, and it would take a bold spirit to predict with any confidence that the picture is likely to change in the near future.

Conditions are somewhat different in women’s jails, especially in the Special Prison for Women in Karachi. To start with, the prison staff has to deal with considerably smaller number of inmates. Nevertheless, the plight of destitute women who have been abandoned by their families, and who cannot afford legal representation, apparently struck a sympathetic chord deep inside the Sindh government. A committee for the welfare of women prisoners was therefore constituted and in July 2004 the Legal Aid Office was established by the Karachi Women Prisoners Welfare Society.

The news evoked a positive response from well meaning citizens who decided to do something about conditions inside the prison. They knew the women have a bleak future and that incarceration is just the beginning of a prolonged ordeal, and that many of these prisoners see the jail as a permanent address.

One of these well meaning citizens is Mr Justice Nasir Aslam Zahid, an affable, soft spoken Cambridge educated former chief justice of the Sindh High Court. He conjugated the rigours of his calling in the nicest way possible, by heading the welfare society and supervising the Legal Aid Office which provides officially authorized assistance to women prisoners free of cost.

He is assisted by a small staff and a group of seven committee members that includes Mrs Ingrid Eckert-Prinz, a German lady resident in Karachi whose dynamism turned a ramshackle gimcrack structure into a model bureau replete with the accoutrements of modern technology.

The LAO performs a whole raft of services. These include the maintenance of a comprehensive data base that records personal information, prison admissions, releases, convictions, sentences and demographic details which etch a scorching account of humanitarian frustration; the provision of competent counsel on an ongoing basis; streamlining procedures; improving conditions inside all prisons; ensuring the welfare of under-trial and convicted women prisoners; and the welfare of the children who live with their mothers within the confines of the four walls of the jail.

Few sights are more depressing and heart wrenching than that of a mother being told that she can no longer keep her daughter once she has reached the ripe age of six. That apparently is the law as enunciated in Rule 326 on page 166 of the 750-page jail manual — a dense and indigestible tome encompassing a bewildering variety of rules, clauses and sub-clauses.

After the wretched creatures have completed six summers , it is the government’s responsibility to make alternative arrangements to house and feed the miserable mites. Invariably, the government confesses its inability to do so and the girls remain in the prison with their mothers.

Currently, there are a few eight-year olds who one of these days will probably find themselves out on the street in full view of the pimps and other predators — unless, of course, there are amendments in the jail manual or some philanthropic, public spirited person decides to set up a home for their rehabilitation.

The overwhelming number of foreign women prisoners who were incarcerated on drug charges, belongs to African countries with Nigeria heading the list at 17. Around 15 female prisoners have already been repatriated to their respective countries through tickets arranged by the LAO; and the office has a list of another 11 prisoners with dates when their sentence is expected to be completed.

On occasion the LAO hits a hidden reef like the time the Pakistan government refused to let a child who was born in the prison, travel with his Tanzanian mother because the child had no valid travel documents. Somebody in the LAO wondered how the child could be given a passport when Tanzania has no diplomatic representation in Karachi. Fortunately, there is a happy ending. Both mother and child are back where they came from, one hopes a little wiser.

Another case which has a citrus-lined sense of the absurd, and whose script could have been written by Franz Kafka, relates to a 50-year old German woman, Ellen Hirt, a fervent campaigner against inoculation. She drove from the fatherland all the way across Europe and a part of Asia to Makli near Thatta. Once she got to the tombs the police pounced on her. She was charged with overstaying on her visa. They confiscated her car and her passport; and as Thatta has no jail for women prisoners, sent her to Karachi.

The general perception at the LAO office is that the woman is schizophrenic. She has been on a hunger strike, tried to commit suicide, threatened to escape and has to be fed special food. It is a bizarre situation. She cannot apply for an extension of her visa, because her passports, along with her car, are still in Thatta. And the police would not release her documents because they do not have transport ! And so the poor woman is well and truly stuck. The German consulate is trying to get her released and so is the former chief justice. But as Kipling’s pride of Bow Bazaar, Hari Chander Mukherjee, would have put it, “The lahr is the lahr.”

Women in the jail are awaiting trial on various charges which include murder and kidnapping which are, of course, serious crimes. But what is truly sad is the number of female under-trial prisoners who do not know just why they are there. They have been hauled up under the repressive Hudood Ordinances, gifted to the nation by the obscurantist dictator Zia-ul-Haq, who represented the quintessence of intellectual dishonesty.

In the list dated July 19 furnished by the LAO office, out of 113 under-trial Pakistani women prisoners 59 have the offence of Zina posted against their name. All a male chauvinist has to do when he wants to get rid of his wife is to say he suspects her of infidelity.

It’s as simple as that. He uses clause 10(2) a weapon bequeathed by the retrogressive dictator to his followers who, like him, believe women, children and animals have no rights.

The station house officer, an essential part of the religious-feudal-military triumvirate, does the rest with missionary zeal.

The point is, the government does not appear to be interested. If it was, it would make use of the four courts established by the well meaning former law minister Shahida Jamil. The justices don’t turn up and the rooms are collecting cobwebs. Even inside the women’s prison a little more effort could be made by the lady doctors who should rotate a 12-hour duty. Currently, they are working shorter hours.

The legal aid office welcomes donations. It is a worthy cause and one worth supporting.

BORN amid dire predictions of early collapse, Pakistan has proved ill-wishers wrong by its very survival, though it went through the trauma of parting with its distant wing within the first 25 years. The fact that the eastern wing preserved its identity as Muslim Bengal, despite Indian designs, reinforced the two-nation theory.

While the rapprochement with India, resumed last year after the fiasco encountered by its coercive efforts, opens up prospects for regional cooperation that is a pre-requisite for economic development, the 150 million Pakistanis remain committed to safeguarding their independence.

At its birth, Pakistan faced all the problems confronting the newly independent states after long periods of colonial rule. It had a subsistence economy, based largely on agriculture, and the standard of living was poor, marked by low social indicators, such as high infant mortality, low life expectancy, low literacy as well as other signs of poverty.

In addition, Pakistan had to rehabilitate over 10 million refugees, apart from setting up a new government from scratch, and managing its economy when the majority of trained and experienced personnel, who were non-Muslims, disappeared. It required extraordinary dedication, and national fervour to keep the country going, especially as the Quaid-i-Azam Mohammad Ali Jinnah passed away barely a year after independence while the Quaid-i-Millat Liaquat Ali Khan was assassinated three years later.

It is usual to compare the performance of the two major countries that emerged together in 1947. India, that had clearly been favoured by the British, both in boundary demarcation, and the handling of Kashmir, was fortunate to have a stable leadership, Mr. Nehru remaining prime minister in the first 17 years. It adopted its constitution within the first three years, and preserved and consolidated its institutions.

Though it took Pakistan nine years to frame its first constitution, it was abrogated two years later following a military coup.

Since then, Pakistan’s history has been one of alternating periods of “democracy”, and military dictatorship, with some civilian participation in various forms. If evaluated on the basis of economic growth, the periods of authoritarian rule have witnessed a faster rate of growth.

The Ayub Khan decade (1958-68) is regarded as the golden age of development. With foreign aid flowing in and western planners lending a hand, the country’s economy grew, and Pakistan’s development was seen as a model for other developing countries to follow.

The growth rate was a healthy six to eight per cent per annum, and industries grew all over the country, with the private sector playing a significant role. However, the relations between Pakistan and India deteriorated and the conflicts of 1965 and 1971 put the economy back.

The five and a half years of civilian rule under Z.A. Bhutto (1971-77) saw major advances after the trauma of dismemberment. While securing consensus on the constitution of 1973 was an achievement, the policy of nationalizing industry discouraged investment and the rate of growth fell below four per cent.

Bhutto also damaged institutions, like the civil service, to establish his personal power. There was a reaction to his brand of authoritarianism, and the army again intervened. The 11-year tenure of General Ziaul Haq saw large-scale foreign aid resume as Pakistan became a frontline state in the cold war, and the rate of growth again climbed to around seven per cent per year.

Zia’s death in an unexplained air crash in 1988 was followed by 11 years of civilian rule, when Benazir Bhutto and Nawaz Sharif held power during two incomplete tenures as prime minister, and were both dismissed successively for misuse of power. Though western sanctions affected aid, it was inept management that reduced the growth rate to three per cent annually, and the country’s indebtedness and lack of good governance deteriorated so rapidly that many western analysts talked of Pakistan as a “failed state” that might disappear from the map.

The accession to power of Gen Pervez Musharraf in October 1999, following an attempt by Nawaz Sharif to remove him, has again pushed the military to centre-stage.

In his seven-point programme, he placed his emphasis on rehabilitating the economy, and improving governance. The first two years constituted a salvage operation, when major problems were addressed.

From 2001 to 2003, there was a consolidation of reforms, as the rate of growth expanded, following an improvement in macro-indicators. Since 2003, the results of the enlightened policies, helped by increased foreign aid and investment, have become visible, as the growth rate has grown from 5.1 per cent to 8.4 per cent in the current year.

While the macro-indicators such as foreign exchange reserves, reduced budgetary deficit and higher development expenditure are positive, the benefits have gone to a small minority and 90 per cent of the population has not benefited from the improved economic outlook.

The widespread poverty and unemployment affect even the law and order situation. The population, which has quadrupled since independence, lacks basic amenities, and awareness of the growing gap between the haves and the have-nots, contributes to corruption, crime and even terrorism.

On the 58th anniversary of independence, Pakistan appears poised for an economic take-off, with prospects of joining the Asian tigers in a couple of decades. But while deriving satisfaction from our successes, we must draw up a comprehensive list of challenges ahead. Pakistan became a nuclear power, the only Islamic country to do so, despite all kinds of pressures and was able to maintain deterrence in the face of the hostility of a much bigger India, though this arms race held up progress in the whole region.

The primary challenges are economic, and these require both internal and external initiatives. However, to achieve progress that is durable, we need to stabilize the domestic situation. The implementation of democratic measures, empowerment of the people and giving them a sense of participation remain fundamental to real progress. The growing restiveness of political parties should be addressed, and parliament given its due role in governance. Parliament should also demonstrate greater interest in governance, than in serving the privileged.

A key aspect that must be urgently addressed is to stress the moderate aspect of Islam, and to counter extremism. The remedy lies partly in the betterment of the economy, and partly in making the government the servant rather than the master of the people. In our foreign policy also, while maintaining our interaction with the great powers, we need to promote the role and interests of the Islamic world, where we face both challenges and opportunities.

Economic challenges are more easily identified, especially after the presentation of the budget, and the recognition of specific areas of weakness. We still collect nine per cent of GDP in taxes, as against 11 per cent in India. The number of taxpayers remains virtually frozen at a little over a million, and the national savings rate is 16 per cent as against 22 per cent in India and 30 per cent in China and Japan.

Recent trends, that have affected the economy, include higher inflation, and rising imports, owing mainly to higher oil cost. Our social sector allocations remain very low, and much greater investment into education and health care are required.

Education holds the key to progress, and even our strategies are still under debate. Within the economy, livestock deserves the attention it is getting, an emphasis should be placed on increasing yield from land under cultivation, as well as better management. Incentives for investment into industry need to be retained and improved.

Finally, there is the “mother” of all problems, our rapid population increase, and even with some reduction in growth, we are likely to have 300 million people in 15 to 20 years.

This is a challenge that must be faced seriously, lest we fall prey to anarchy and chaos owing to the sheer inability to cope with the number of people on our land.

As we pass the next milestone on our history, we need to address both the short-term challenges that consist of poverty, backwardness and meeting growing needs of water and energy.

Our long-term challenges demand special attention to education, health, the environment, and our ideology. The challenges of globalization lie on the horizon, and answers must be found through a more just international political and economic order. Our geo-strategic location confers special responsibilities on us for regional and global peace, with special emphasis on finding a modus vivendi with India.

The writer is a former ambassador.