No more rollbacks

04 May 2020


The writer is a lawyer and an academic.
The writer is a lawyer and an academic.

HISTORICALLY, constitutional evolution has followed momentous if not cataclysmic events in a nation’s history, be it the first proto-Muslim state’s Misaq-i-Madina, a resurgent feudal England’s Magna Carta, a post-revolutionary England’s Declaration of Rights, a newly created United States of America’s Bill of Rights or revolutionary France’s Declaration of the Rights of Man.

The journey of human civilisation has seen many revolutions, regicides and fratricides, and philosophical, scientific, artistic and intellectual movements, eventually bring about some sort of a legal order — one that may be just, clear and certain, beyond the will of an individual no matter how powerful or resourceful, rooted in a social contract or constitution, by which the mutual rights and obligations of the state and citizens may be specified.

When it comes to the rule of law as an institution, our history is perhaps not as romantic or heroic, yet we have suffered no less in our constitutional journey. Over seven decades, the country has witnessed many an occasion when its constitutional march was halted, hindered and even driven back by the military dictators, using an unfortunate mix of muscular power and judicial legitimacy. Yet, thanks to the generational struggle waged by its freedom- and justice-loving people — political workers, lawyers, journalists, students, academics, labourers, poets, writers, artists and so on — Pakistan has seen its constitutional dispensation being restored over and over again; ultimately reaching a point where, if allowed space and time, it may finally deliver on the promises extended in its social contract.

Perhaps the government sees the present crisis as conducive to constitutional meddling.

This doesn’t mean we have settled the primordial question of whether the constitutional dispensation has attained enough strength to hold itself true to its substance versus an array of powerful countervailing forces including dictators and demagogues. Today, not only is this longstanding question still unanswered, it has been resurrected by the incumbent PTI government, which has shown its ‘resolve’ to ‘revisit’ — if not to undo — the 18th Amendment. Enacted through parliamentary consensus in 2010, the intent behind this constitutional amendment lay in ‘restoring’ the spirit of federalism. It is mind-boggling, then, that the federal government has chosen to reignite a divisive constitutional issue, particularly at a time when the citizens are faced with an existential crisis in the form of a deadly new virus, and are expecting the federal and provincial governments to fight the pandemic in tandem.

Perhaps the federal government finds these ominous and chaotic times rather conducive for it to muddle through a constitutional rollback by leveraging the state’s covert powers and NAB’s dreadful laws to bend the opposition. Such an approach is in sync with a global “pandemic of power grabs” by rulers who, in the words of a recent editorial by The Economist, “realised that now is the perfect time to do outrageous things”. A constitutional rollback, however, seems highly improbable both politically and for reasons intrinsic to the 18th Amendment.

Politically, the PTI government won’t find it easy to rope in its coalition partners, who were voted on local or provincial sentiments. Given the administrative latitude and financial space enjoyed by the provinces, not even the ruling party’s provincial governments would be happy with a rollback of their constitutional powers. Pakistan’s business community would also prefer to work with provincial and local governments rather than Islamabad. Nor would the people appreciate the government tinkering with the constitutional reforms that, notwithstanding our recurring political turbulence, helped bring about peace, stability and continuity. More importantly, the 18th Amendment was intrinsic to curing many a chronic ill that had afflicted the body politic, particularly the distortions plaguing the trichotomy of power and federalism.

Thus, the concurrent legislation was abolished (barring a few subjects), bringing more clarity and discernibility to the legislative business. Much of the social sector was devolved to the provinces (and further down to local governments) so that people could receive services from local and provincial governments rather than from faraway Islamabad.

Moreover, parliament was decisively strengthened, versus an omnipotent president who, in collusion with the establishment, had ‘hedged’ the elected governments to his whims. Likewise, revenue distribution between the federal and provincial governments was rationalised on the touchstone of transferring social portfolios to the provinces and limiting the federation to ‘core’ state functions. Additional safeguards were also included to prevent the federal government from imposing an arbitrary and mala fide emergency or governor’s rule on a province. Most significantly, the judiciary finally emerged from the long shadow of the executive, decisively vigorous, independent and free from financial, administrative and tenural impediments.

Admittedly, the three key beneficiaries of the constitutional amendment — the executive, parliament and judiciary — have so far failed, in varying degrees, to extend the benefits of the reforms to the citizenry, be it good governance, social legislation or speedy justice. In fact, post-devolution Pakistan saw the worst rounds of turf wars, with elected governments being eternally caught in the cross hairs of a proactively moralist judiciary, and parliament relegated to a talk shop. One may argue this was inevitable given that the newly ‘independent’ judiciary needed to jealously guard the ground reclaimed from a long-domineering executive.

Mercifully, this contentious phase seems to be abating, probably dictated by the law of diminishing returns. Now it is time for the executive and legislative branches to reclaim the ground lost to the establishment in the course of their internecine confrontation. Instead of rocking the constitutional boat, they should build on it a real ‘legal state’, or Rechtsstaat, and then let the people — the political sovereigns — be the real beneficiaries of the resulting boons: rule of law, good governance, social justice, economic equilibrium and environmental protection. Our constitutional journey must never be halted or rolled back; it must only move forward.

The writer is a lawyer and an academic.

Published in Dawn, May 4th, 2020