We the people

Published June 11, 2022
The writer is a litigator based in Islamabad.
The writer is a litigator based in Islamabad.

THE preamble of our Constitution contains the words: “Now, therefore, we the people of Pakistan … Do hereby … adopt, enact and give to ourselves, this Constitution”. In the Federalist No. 84, Alexander Hamilton, had peddled these vital words, giving them a form, they now take in the US Constitution: “WE THE PEOPLE … to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution”.

The architects of the US constitution had enunciated a potent idea — an idea that has travelled not only distance but also time. The constitution and every institution that the constitution envisions and creates are subservient to ‘We the People’.

Despite all their other glaring flaws, particularly the unforgivable sanctioning of slavery as an institution, the founding fathers of the US constitution got at least one thing absolutely right. Their disdain for the British monarchy and the entire concept of centralised power, convinced an entire generation to imagine a form of government, where ‘We the People’, as a theoretical concept, was to take centre stage.

Read: An empowered public

Radically for those times, ratification of the US constitution involved a much larger participation from the people, even when slaves, women and most of the non-propertied men were not initially part of the compact. It took subsequent amendments for “We the People’ of the US to rectify these flagrant deficiencies.

In Pakistan, the concept of ‘We the People’ has not really taken root, that it is we who gave ourselves the Constitution, and everything that comes from it. This includes the central legislature, the provincial legislatures, the courts, the executive, the armed forces, and the entire governmental machinery, put in place through legal instrumentalities, all tracing their genesis, or at least, legitimacy to the Constitution. These creations of the Constitution have come into being because ‘We the People’ gave them to ourselves, and they can only continue to exist as long as we want them to exist.

This conceptual clarity is required primarily to safeguard ourselves from the way these creations of the Constitution sometimes end up functioning. Our society operates as if ‘We the People’ are mandated to serve these institutions along with the fallible and fragile mortals occupying positions of power within these institutions. Put in more reductionist terms, our Constitution seems to have given birth to Frankensteins, untethered and unmoored by any real purview of ‘We the People’.

It is ‘we’ who gave ourselves the Constitution, and everything that comes from it.

Through this reversal of roles comes another dangerous notion, that our representatives, that we put in the assemblies to pursue our ends and objectives, are, in fact, our ‘leaders’, to be followed, venerated and idolised. These leaders are to lead ‘We the People’ to some nebulous, far-off destination, where things are a lot better, and all that is required is for us to be transported there. These simplistic notions, in turn, open up space for demagogues, mavericks, radicals and dictators, selling cheap dreams, and cheaper governance.

And more fatally, these ideas keep ‘We the People’ from devising mechanisms to protect ourselves from self-dealing by those who traverse the corridors of power in these institutions, that are creatures of the Constitution given to us by ourselves. While we often pursue co-option to get access to these institutions, seeking to make those institutions serve us through our network of friends and family, we have not seriously put much thought into structural tightening of the screws. Some institutions arguably may have become too massive, powerful and deeply entrenched to now be tamed and curtailed, operating outside any real control from ‘We the People’. But even the representatives that we send to the assemblies are free to indulge in self-dealing without any real mechanisms in place to keep them in check.

Read: Institution vs the individual

By way of example, there is nothing in the law restraining our elected representatives from jacking up their salaries and remunerations while in power. In juxtaposition, the US constitution, under the 27th Amendment, requires that for an increase in salaries of the Congressmen to take effect, there has to be an intervening election, so that it is never their own salaries that the representatives increase but those of the representatives to be elected after an intervening election.

Similarly, Franklin Roosevelt’s flouting of the tacit principle established by George Washington himself, that one particular individual elected as president was not to serve more than two terms, ended up mobilising ‘We the People’ of the US, to constitutionalise that principle in the form of the 22nd Amendment, capping the term of the president to two four-year terms at maximum, irrespective of whether a Lincoln had been elected or a Trump.

Here in Pakistan, though, ‘We the People’ have not even contemplated and put together a working framework of campaign finance laws, that allows ordinary members of ‘We the People’ to come to power. Only powerful local and national hegemons, with massive resources, often accumulated through illicit means, occupy public elected office, keeping the real bulk of ‘We the People’ from occupying elected positions. Breakthroughs have only come from nationally acclaimed figures, which were already household names, or from those who cultivated deeper relationships with the military strongmen in power, or both. To ensure that political parties and politics in general, are not monopolised by either select monarchical families operating under the crass divine right to rule framework, or a charismatic self-proclaimed messiah, it is imperative that ‘We the People’ take charge.

And ‘We the People’ must seek to take charge because we gave ourselves the Constitution, not to serve and bow to monarchical families, or to self-anointed messiahs, or to the top personnel of other constitutionally created institutions, but to serve our own ends and objectives. This is our Constitution, and we have got to make it work for us.

The writer is a litigator based in Islamabad.
awahid@umich.edu

Published in Dawn, June 11th, 2022

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