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Only by the constitution

October 11, 2012


GEN Parvez Kayani has earned the nation’s gratitude by reminding it of the blessings of the constitution, some of which have not been duly appreciated by even the celebrated teachers of constitutionalism.

The army chief scored maximum marks in the art of brevity when he announced the military’s pledge to operate within the constitution and support every constitutional measure — in just 17 words.

Since the general used the word ‘Balochistan’ quite a few observers were led to believe that he was responding to Mengal’s six points presented as a precondition for joining Islamabad’s efforts to woo the angry Baloch. There is no reason why the army chief should have a debate with a disgruntled Baloch leader, especially when he is obsessed with the so-called disappearances that don’t concern the military at all. Even if they did, a brief press release by the ISPR would have been enough.

Plainly the general’s endorsement of only constitutionally justifiable political actions offered happy tidings to the country’s entire population. A simple deduction will prove that if extra-constitutional action cannot be allowed in Balochistan it cannot be contemplated in other parts of the country, that are free of both unpatriotic people and mischief by foreign hands.

This clarion call lent fulsome support to the judiciary’s campaign to uphold the constitution, a campaign that it has hitherto conducted single-handedly and with a single-mindedness rarely witnessed in judicial history the world over. It was a clear warning to those who justified usurpation of power with tales of scenarios for which the constitution, according to them, offered no solution. Perhaps the resolve to avoid anything unconstitutional has been steeled by the Supreme Court’s 2009 decision — that any judge validating a putsch will share the dock with the usurper.

There is, however, the small problem of interpretation. As in the case of all great documents, people holding conflicting views on any issue can find corroborating text in the constitution. When the chief justice of the Supreme Court declared that every third missing person in Balochistan had been abducted by the Frontier Corps (FC) he was acting within the limits of the constitution. The same privilege could be claimed by the head of the FC when he repelled all talk about his force’s involvement with enforced disappearances as sheer calumny.

The security forces have repeatedly clarified they have nothing to do with enforced disappearances in Balochistan or anywhere else. If any security official, by accident or because of a chink in his armour, can be blamed for disappearances, his action must be in accord with his oath to defend the constitution.

Similarly, the right to a fair trial has recently been put into the constitution and the proposed fair trial act is also said to be constitutionally valid. The people of Pakistan should thank Providence for a constitution that can reconcile what may appear to be irreconcilable concepts. Didn’t Ziaul Haq declare the marriage between the constitutional guarantee of minorities’ equal rights with separate electorates to be a holy match made in heaven?

A bigger problem is that the elevation of the constitution as the final determinant of what is politically sound and what is not could arouse strange ideas in the bosoms of the riff-raff. They might start arguing that if the constitution arms the authorities with coercive powers, it should also enable an ordinary citizen to enjoy his rights.

For instance, the right to equality before the law and the right to equal protection of the law are upheld by the constitution. Why can’t these rights be allowed to the victims of enforced disappearance or those incarcerated at the new internment centres?

Besides, ordinary people cannot understand why the constitutional promise of enabling them to realise themselves remains unfulfilled even after 65 years of independence. They always thought every child had a right to education till successive governments worked hard to disabuse their minds of such dreams. Now under the 18th amendment the constitution is said to have recognised the right to education as a fundamental right. Many cannot understand why this amendment should take longer to implement than a directive to put the people of Balochistan at the tender mercy of the FC.

However happy one may feel about the transfer of the right to education from the principles of policy to the fundamental rights chapter, it is impossible to avoid the thought whether it will take another 37 years before the right to health will be recognised as a fundamental right and the state obliged to guarantee it to all citizens.

There is a danger that the more ambitious agitators that have infiltrated civil society might confront the rulers with Article 38 of the constitution — “the state shall secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants.”

But when will we stop putting everything on the plate of the judiciary or the military?

Why can’t the millions of the unemployed, the coolies, the daily wagers, the vendors and hawkers, the tillers of the land and the women sweating in homes and in fields, who were described by Iqbal as hewers of wood and drawers of water, and in whose interest a separate homeland was supposed to have been demanded, accept the responsibility to turn the constitution into a living symbol of their aspirations?

After all they should also learn to do something for themselves.