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Constitutionalism: 49 years later

The dearth of democrats is probably the single largest problem our country is facing but unfortunately we are not even looking at it as a problem.

As the Pakistan day approaches the country's increasing de-politicization and indifference bears witness to the history of constitutionalism.23rd March is celebrated as Pakistan Day and commemorated as a day when in 1940, by the Lahore Declaration the Muslim League decided to pursue a policy of getting separate homeland(s) for the Muslims of  South Asia. Although this dream turned to reality in about 7 year, but it took another 9 years to come up with a constitution. It's unknown (at least to me or majority of the nation) why they chose 23rd March to promulgate the first constitution of this country. I hope that at that time they did not know it was the first constitution of Pakistan. The constituent assembly after a roller coaster rides and near fatal dissolutions came up with a constitution of Pakistan. The constitution came into force on 23rd March 1956. It was a great day for the country since finally it was no longer a dominion and could proudly be called a Republic. The Islamic Republic of Pakistan (its official name) came into existence and hence rid the nation of the imperial forces which forced upon us more than 100 years of captivity. The day marked the office of Governor General turning into President of Pakistan and Major General IskanderMirza became the First President of Pakistan. So the ball started rolling towards a republican democracy. Even the imposition of Martial Law in 1958 could not change the status of the nation as a republic but the proud republic day was converted to Pakistan Day and children forgot the significance of this day since the 1956 constitution which was being celebrated on 23rd March was annulled and 1962 gave us a new constitution. This new constitution kept on working till about 1969 and then in 1973 after the greatest tragedy this nation faced we had a new but this time consensus constitution. Its unknown whether we had a new constitution in 1985 when assemblies were restored but since, the Eight Amendment was made in constitution of 1973 so we can say it was not a new constitution rather the same old 1973 was amended albeit 17 times till this day (last time it was amended in December 2002).

This short history does not cover all the details since this is not the main focus of this article. The primary purpose is to explore the state of constitutionalism 49 years after the republic day. What does constitutionalism mean and where do we stand on this account? More importantly is it desirable attribute in a nation?

Simply speaking constitutionalism is the broad term which means that every male, female, businessman, politician, teacher, student and soldier of the nation agree to abide by the norms laid out in the country's constitution. This is not a unilateral agreement. In return the masses expect that their fundamental rights will be protected by the guardians of the constitutions. In our case the National Assembly is the guardian of the constitution.

How can we expect that everybody submit and abides by a single constitution? How can a piece of paper guarantee such a personal security as fundamental rights?

It's not unusual to see the indifference of people towards constitutionalism in general and constitutions in specific especially after one reads through the history of constitutions described above.

The most important question which is asked in this regard is who will bell the cat? It is not difficult to guess who this cat is. No really I am not talking about any dictators or democrats ruining democracy and constitutions. I am actually talking about everybody who in pursuit of his own interests or falsely believing that it is for the general good by-passes the laid down law of the land.

Let's take a hypothetical situation in which we consider the non-controversial task of ensuring that the right of a person to pursue a career of choice is ensured and guaranteed by the constitution. Now what does this demand from the people who are being governed under the constitution and also those who govern? Well simply speaking everybody (it has been defined earlier on who this everybody includes) should not only write this in the constitution but believe from the core of the heart that this is in our best interest that this right is guaranteed. The onus is both on the people of the state as well as the governing people to ensure that nobody's pursuit of a career is hindered. Now what if there is a large group (not necessarily a majority) who advocate that it is not everybody's right to pursue a career of choice. What should be done in such a case? Either we exclude this provision from the constitution or we should somehow convince the group. Both of these solutions seem to be equally difficult. We cannot exclude it from the constitution and we cannot convince a large group without being persuasive.  Just imagine the kind of result we will observe if we are to implement this right without convincing the large group and alternatively the kind of mess we will create in the event of exclusion of this important fundamental right from the constitution. This simple example has really brought out the whole core of this article that constitutionalism is really necessary for the survival of a society and that it?s equally necessary that ALL (not simply a majority) should be unanimous about the constitution prevalent in the country.

Convincing is easier said than done. The role is shared by all. The politicians need to convince people that the fundamental rights are important for their (the people I mean) own socialwell being. This well being has nothing to do with economic well being which is being pursued by everyone by hook or by crook. Who has to do all this? The dearth of democrats is probably the single largest problem our country is facing but unfortunately we are not even looking at it as a problem at all. The east west divide and the 100 years of British Rule have a lot to do with our attitude. We were fortunate to have a leader like Muhammad Ali Jinnah who was a true democrat. We are one of the proud nations in this world, who gained independence through a thoroughly democratic method. But where did all this vaporize in the past 58 years? Maybe we never really cultivated this concept in our society or maybe we were unfortunate to lose Jinnah and never to have a leader even close to Jinnah's democratic credentials. It is normally said that the later is perhaps the case but probably it has more to do with lack of fostering of a democratic culture in our society. Constitutionalism is the only path that can be followed. It is neither the objective of this article to demand a constitution nor should such an implication be derived. The primary soul of a democratic spirit is constitutionalism. All our rights are ably defined and protected by the constitution. Hence we should protect the constitution by vowing to defend it by following it.

February 5, 2005 Zahid Irfan

114-Garden Block,

New GardenTown, Lahore

Pakistan

Credits and Background information: The basic idea of this article was the theme of a lot of discussion with my colleagues and friends. But all of this is possible because of my quiet but really influential mentor my father whose education enabled me to entertain these ideas and to really have the capacity to get greater insight into issues. The most important contribution in this regard of course goes to Thomas Jefferson who really impressed me with his great convictions in democracy. The federalist Papers by Alexander Hamilton, James Madison and John Jay have been the primary source of my knowledge of constitutional discourse. Moreover J S Mill and recently Karl Popper have been increasingly helpful in exploring and broadening my horizon.  The first part of the article was actually told to students of my school at Abbottabad (PresentTimesPublic School) in 1999 when the 23 March Pakistan Day function was held and attended by me as a judge.