Who defends the Constitution?

Published April 10, 2022
The writer is a lawyer and partner at a Karachi-based law firm.
The writer is a lawyer and partner at a Karachi-based law firm.

ON the day the National Assembly was dissolved, Bilawal Bhutto-Zardari tweeted: “We cannot under any circumstances compromise on the constitution. SC must rise to the challenge & prove our constitution is more than a piece of paper. If we can’t implement the constitution on the floor of the NA we can’t dream of constitutional supremacy anywhere else.”

Underlying this tweet are some interesting assumptions about constitutionalism, which we must interrogate.

Recent events have shown — not that more evidence was needed — that executive power in Pakistan does not consider itself bound by constitutional law or convention, and it forced us to once again answer the question: who is the protector of the Constitution?

Read: The Speaker versus the Constitution

Mr Bhutto-Zardari’s tweet, calling on the Supreme Court to “rise to the challenge”, expresses the view that the Supreme Court is the ultimate protector. It’s understandable that the opposition political parties should pin their hopes on constitutionalism. Not only political parties, but a progressive civil society and intellectuals, too, believe that the Constitution is our North Star. The history of Pakistan is evidence that when constitutional limits are violated, the consequences are bad governance and further erosion of the rule of law. And it appears that Mr Bhutto-Zardari’s expectations of the Supreme Court have been vindicated with the Supreme Court’s decision of April 7, which has restored the National Assembly.

Ultimately, it is the people of Pakistan who are the enforcers of the Constitution.

There is, however, an important distinction to keep in mind. To say that the Supreme Court should be the arbiter, is not to say that the Supreme Court’s interpretation of the Constitution must necessarily be correct. In other words, we believe that the Supreme Court is bound by the “objective” or independent truths that the Constitution enunciates.

This begs the question though — if the Supreme Court is itself bound by the Constitution, how can it be the institution of last and final resort?

Even with its recent decision, the Supreme Court’s historical track record of upholding the Constitution has been chequered. It’s not just that every military coup has been subsequently ratified by the Supreme Court and that it has upheld the bad-faith dissolution of elected assemblies. Arguably, it has also been a poor guardian of fundamental rights: it has failed to protect the right to habeas corpus, it has upheld the military courts to try civilians, and it has forced the eviction of hundreds of low-income people from their homes.

Questioning why we should rely on the Supreme Court goes to the heart of a paradox that underlies constitutionalism: how can we give any person or institution the power to enforce the Constitution, and at the same time assert that the Constitution is all-powerful?

This paradox can be resolved only if we recognise that there is a force above the Constitution, and the preamble to our Constitution recognises this: “...we, the people of Pakistan ... do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution”. Ultimately, it is the people of Pakistan who are the enforcers of the Constitution.

“The people” seems like a vague and amorphous entity. How can “the people” play a direct role in enforcing the Constitution? Perhaps it’s unsurprising that we in Pakistan have forgotten that mass popular movements are possible, since we haven’t witnessed any in years — but we shouldn’t forget that it is possible for popular protests to undo unconstitutional actions and even bring down unlawful governments. This usually only happens when “the people” become an organised force that can sustain resistance and take power into their hands.

Even at this moment in world history, when the forces of neoliberalism seem insurmountable and liberal democracy is in peril, we see examples of popular movements driving constitutional change. Recent developments in Chile offer a striking example of the possibilities of popular constitutionalism. In 2019, mass protests began in Chile against the economic policies of the president. Over one million people took to the streets in October 2019, demanding the president’s resignation. In November 2019, Chile’s National Congress agreed to hold a referendum to rewrite Chile’s Pinochet-era constitution, and subsequently, Chileans voted in favour of a new constitution. Last year, 155 Chileans were elected to draft a new constitution through a process of genuine democratic deliberation.

In Chile, we see an example of popular movements driving constitutional reform. This is in strong contrast to a political process where the terms of the constitution during a grave political impasse are determined by a bench of unrepresentative judges.

The limits of our political parties’ imagination is captured in the last line of Mr Bhutto-Zardari’s tweet: “If we can’t implement the constitution on the floor of the National Assembly we can’t dream of constitutional supremacy anywhere else.”

It does not even occur to the opposition parties to call on “We, the people” to uphold constitutional supremacy. It appears they have chosen to ignore the tremendous potential of the people to assert their political power to check the unlawful usurpation of power by our current rulers.

Ultimately, it is political forces and not constitutional law that will pave the way for or obstruct a democratic future. While we are relieved by the recent Supreme Court decision, we must also acknowledge the undemocratic forces that keep driving us towards political crises. We cannot pretend that our political crises will mend once constitutional violations are remedied, and ignore the political forces that continue to thwart democracy in Pakistan.

Building democracies is the process of entrenching norms that limit the power of those who hold the monopoly of force, so that the institutions of governance stay within their limits by checking and balancing each other. This is why constitutional norms are grounded in political practice, and not only in the courtrooms of the superior judiciary. The question confronting us today is not whether the PTI will stay in power. The real question is whether we can build a democratic politics that drives the realisation of our constitutional values.

The writer is a lawyer and partner at a Karachi-based law firm.

Published in Dawn, April 10th, 2022

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