Making the Constitution work

Published April 12, 2023
The writer is an author and journalist.
The writer is an author and journalist.

WHAT could be more ironical than a country experiencing a constitutional breakdown while ‘celebrating’ the golden jubilee of its constitution? Speakers at a commemorative convention held at Parliament House vowed, one after the other, to uphold the sanctity of the document. But very few among them seemed to have really understood its guiding principles and the spirit in which the basic law of the country was framed.

Fifty years on, we are still struggling to establish a truly democratic order, in accordance with the aspirations of the Constitution adopted on April 10, 1973. While commemorating the historical event, it is also time to reflect on where we have gone wrong in our constitutional journey.

Since its birth half a century ago, the Constitution has gone through phases of suspension and attempts to change its core principles that ensure fundamental human and democratic rights.

For a long period, the country was under direct military rule. For those uniformed usurpers, the Constitution was ‘just a piece of paper’ that they could tear up at any time. Gen Ziaul Haq, in particular, tried to reframe the basic objectives of the Constitution that are based on the freedom of expression and faith.

But it was not military rulers alone who tried to change the Constitution according to their wishes. Soon after its enactment, an entire community was assigned a minority status through an amendment in the Constitution in 1974. It altered the nature of the state envisaged by the nation’s founding fathers.

Fifty years on, we are still struggling to establish a truly democratic order.

As it acquired the power to categorise people according to their beliefs, the state got deeply involved in matters of religion, with long-term consequences for society as well as democratic values. Gen Ziaul Haq who ruled the country for more than a decade used the document to enforce his version of religion in an attempt to turn Pakistan into a theocratic state.

He redefined the ideological contours of the state that strengthened religious obscurantism. The rise of religious extremism and sectarianism largely owes itself to the laws enforced by the military dictator. Pakistan has never been the same again, with various insertions in the Constitution under the Zia regime.

His incorporation of the notorious Eighth Amendment in the Constitution had long-term implications for the democratic process in the country. But one of the most debated aspects was the change that made the Objectives Resolution, that was formerly a preamble to the Constitution, a substantive part of the document.

It has been argued that this provided impetus to the religious parties striving to turn Pakistan into a hard-line theocratic state. It was all done to the nation’s detriment. It could never be changed by subsequent elected governments out of fear of a backlash by the religious groups.

Interestingly, some democratically elected leaders too tried to alter the Constitution to strengthen their political powers. While the 13th Amendment made during Nawaz Sharif’s second government abolished the Eighth Amendment in a positive development, the 14th Amendment ensured that there could be no dissent in any political party, and no defection from the latter. It was passed by both houses on the same day that it was introduced.

Nawaz Sharif’s move to pass the 15th Amendment through which he hoped to declare himself amir-ul-momineen was thwarted because of his failure to win a two-thirds majority in the Senate. This episode reflected the mindset of our political leaders desiring to accumulate absolute power. Such moves undermined the democratic process.

Not surprisingly, the government of Gen Musharraf in 1999 reintroduced the powers of the president that he came to enjoy under Article 58(2)(b) of the Constitution. It was back to the days of despotism.

The Musharraf regime also introduced the 17th Amendment to the Constitution in order to indemnify the actions of the military government. The frequent disruption of the democratic process and prolonged military rule have been a major reason for the distortions in the Constitution.

It is not only direct military rule but also the establishment’s deeply entrenched power which has been a major reason for constitutional democracy not taking firm root in the country. It may be true that the Constitution is an organic document and there is always a need to make changes in it as society and politics evolve, but they should be in conformity with the basic democratic principles.

Undoubtedly, the passage of the 18th Amendment in 2010 by parliament, with the consensus of all the main parties, was a landmark development in Pakistan’s chequered political history. It overhauled almost a third of the Constitution, abolishing many of the distortions created by the illegal actions taken by military regimes. It removed Article 58(2)(b) of the Constitution, shifting the balance of power back to the prime minister and parliament. It returned Pakistan to a truly parliamentary system, limiting the powers of the president.

But the most significant part of the 18th Amendment has been the strengthening of the federal structure of state. It has transformed centre-province relations. The division of power between the state and its units has been amongst the most contentious and recurring issues in Pakistan.

The devolution of power to the federating units removed the main source of tension between the centre and the provinces. Yet another enduring impact of the 18th Amendment is the recognition of children’s right to education and the provision of free and compulsory education to all girls and boys up to the age of 16 years.

Notwithstanding the positive side of the radical changes it introduced, the 18th Amendment left untouched some of Gen Zia’s regressive insertions that have caused the rise of religious extremism. Besides, it did not do away with the clause that bans non-Muslims from holding the office of president, therefore strengthening the sense of exclusion among minority members of society.

Surely, 50 years of our constitutional history calls for celebrations but what is most important is to make the document actually work. Unfortunately, that has not happened.

The country is still struggling to find a way forward. A reckless power struggle has left the democratic process much weaker than before, raising fears of yet another derailment of the Constitution.

The writer is an author and journalist.
zhussain100@yahoo.com
Twitter:@hidhussain

Published in Dawn, April 12th, 2023

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