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Life of a constitution by Abdul Quayyum Khan Kundi

One question that has always occupied political scientists is that if human nature and society is evolutionary than why its constitution should be static or fixed. One way to address this is through introduction of amendments to the existing constitution. But sometimes there are such dramatic changes in a society or the existing structure has such contradictions that it is not possible to fix the issues through amendments. For instance, German republic is now at its 3rd iteration. French are governed by their 5th republic. In other countries the constitutional design is such that it only provides a very broad ideological framework while on going legislation becomes part of the governing law. United States of America (USA) is one such example. In another situation a country’s democratic foundation is built on traditions and customs rather than a written document. In this system the addition of new precedence keeps pace with the changes in the society governed by it. United Kingdom is one such country that is ruled through an unwritten constitution. Other countries have also experienced constitutional crisis such as Turkey, Egypt and Tunisia over last many decades. PM Erdogan of Turkey recently unsuccessfully tried to amend the constitution to convert it into a Presidential form of government.

In our own experience Pakistan has experimented with three constitutional structures so far i.e. 1956, 1962 and then 1973. The current constitution of 1973 has already been abrogated twice in its forty years history by martial laws governing for a total of 20 years which is half of its total tenure. The intermittent democratic governments have made it difficult to fully appreciate the impact of the constitution on the society and its viability to provide long term social and political stability to the nation. In my personal view there are gross inconsistencies in the use of terminology; structure of the document; promotion of conflicting social and political values; and systematic shortcomings that makes it hard for the current constitution to deliver its promise of a progressive and stable Pakistan. Through this article I will make my humble effort to highlight some of those areas.

In the preamble the constitution designates non-Muslims as minorities. This implies that these groups are not full citizens as in judicial terms a minor is a person that has not attained full legal rights to be able to make decisions on his behalf. In the same article non-Muslims are grouped with backward and depressed classes without a clear definition what these terms mean. It also suggests that backward and depressed are permanent conditions rather than a passing phase.

Article 2 mandates that Islam should be State religion. This article is not in tune with the spirit of Islam if we consider the approach of the first four rightly guided Caliphs. None of them assume the title Khalifatul Islam. Even in the Charter of Medinah Prophet Mohammad (PBUH) did not insert an article that made Islam should be the dominant or mandated religion of the community. Secondly, I am not aware if amendment to the document was made once majority of people of Medinah converted to Islam. Thirdly, a State in itself is not a living organ but a collection of individuals. The judgment in the afterlife will be of people not of a State. If 100% of the individuals living in a State are Muslims then we can theoretically call that State to have a religion. But that is not the case in realty. Lastly, even among Muslims there are 72 different schools of thought. So if Sunnis are majority then why don’t we say that Sunni Islam shall be the State religion of Pakistan?

Most of the articles of the constitution are written from the negative rather than positive perspective. As an example Article 3 suggest that there is potential for exploitation within the State while the State is defined as collection of offices rather than citizens. This article can be rephrased to a more positive formulation for instance Equal Opportunities and rights are granted to all citizens without any bias towards their race, color, religion or social status. Or Consider Article 8 which states that law inconsistent with or in derogation of fundamental rights to be void. Instead of this the same article could have been phrased more positively to state that Laws should be consistent with fundamental rights of the citizen. Another example is Article 9 relating to security of a person. It starts with word No person shall be deprived. It could have instead been stated more positively that a person will be provided security of life and liberty except when mandated by law to act otherwise. The whole constitution is written with this assumption that the negative is a normal and positive is an anomaly.

A constitution should be drafted in such a manner that each word or punctuation should have a utility in terms of clarifying the intent or defining the boundary of the article. Throughout the constitution unnecessary ambiguities have been introduced that impinges on the spirit of the intent of the document. For instance Article 11 (4) word cruel nature or incompatible with human dignity does not convey exactly what it means. Another example is Article 14 (1) again dignity of man and the privacy of home shall be inviolable. There is interchangeable use of person, man and citizen which shows there is no uniformity of terminology in the constitution. The use of word man rather than more neutral person has an implied primacy of men and subjugation of women as an inferior sex which could have been avoided by better choice of a term. In Article 20 the addition of word morality has completely changed the intent as it gives State power to define morality arbitrarily and engenders the acts of citizens to be construed as immoral without their prior knowledge of it to be such.

The wording of the constitution is such that it creates a conflict of interests between the State and her citizens. Refer to article 7 & 17(2) which defines state in terms of its functionaries and does not include citizens as its part. It expresses as if State has its own interests that may or may not align with the interests of the citizen. This in practical terms implies that those vested with State authority are not in service of citizens but State. This creates conflict between State and Citizen rather than promote harmony and mutual interest.

Besides tone and tenor of the document there are some structural faults in the constitution that are difficult to overcome. For instance Pakistan is presented as a supra state consisting of units that are not administrative in nature but nations in themselves based on their ethnic identities. Imagine that Germany has provinces inside it but they are administrative in nature while she is member of a supra nation EU as a nation state. Pakistan in a similar fashion is a supra nation of four ethnic based nation states. This creates inherent political hurdle for the emergence of a Pakistani national identity. It also encourages ethnicities to remain concentrated in their particular geographic area rather than offer an incentive for dynamic movement of people within the federation to form a one cohesive whole.

Another issue is systematic. We have adopted parliamentary system as we came out of the colonial belly of a Westminster style imperial power. Culturally we are a hierarchical society which is more suited for a Presidential form of government.

Constitution of 1973 was drafted at a sensitive time when the nation experienced a painful separation of its eastern part. But now much time has passed and we need to take a second look at the document. What I am proposing is that we need to consider emergence of 2nd republic of Pakistan and draft a new constitution. How do we achieve it peacefully without disrupting the society? We should seek emergence of a constituent assembly in the next elections with a mandate to draft a new constitution. But during the drafting process civic organizations should be given an opportunity to provide their feedback on draft proposals. Final document should be ratified by the nation through a referendum after which elections are held under the new constitution.

What Next?

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