Dr. Tahseen Mahmood Aslam looks at a lingering national issue of Wither constitution
Though the Wither constitution of Pakistan is half a century old yet its nature and content have not been able to stay above controversies. The fragility of the perceptions about 1973 constitution could be gauged from the fact that instead of solemn celebration of this iconic document the celebratory proceedings in the federal legislature witnessed lack of decorum amidst vacuous speeches and rhetorical statements reflecting deep lack of proper awareness of the entire governance process. The auspicious occasion was mostly devoted to divisive speeches hurling partisan accusations diminishing the significance of the event and conveying a message that is devoid of any inspiration for the people of the country. As is the wont, the celebratory proceedings were marred by controversy as the soon-to-be-chief justice of the apex court attended the function on invitation of the legislative body that was soon mired in controversy as it was alleged that his presence was suggestive of some alignment though he hastened to clarify the situation. Despite the clarification the questions were and are raised about the non-attendance of all the other judges of the apex court though they were accordingly invited.
Notwithstanding the lack of enthusiasm exhibited by the parliament on the event, the reality remains that the Constitution of 1973 was the consensual set of regulating principles devised and formulated by the representatives chosen by the people through 1970 elections that were held on universal franchise basis. The country was truncated into two in 1971 as the electoral majority of the winning party was not accepted by West Pakistan, the country’s larger wing, creating a crisis giving birth to Bangladesh. However, the National Assembly elected in 1970 elections was acknowledged as the national parliament and was mandated to frame a constitution. Prior to this the country has faced consistent difficulties with framing a constitution since after it inception in 1947 and the country was run according to the Government of India Act 1935. This situation lasted for nine years after independence as the constitutional wrangle continued because the Bengali majority was not willing to concede to the freedoms and rights demanded by them and the western wing was not prepared to acknowledge this point. Nevertheless, united Pakistani leadership succeeded in framing a constitution in 1956 under the prime ministership of Chaudhry Mohammad Ali but this constitution lasted only for two years and it was abrogated by the martial law regime in 1958.
The Ayub Khan dictatorship foisted its own, and the country’s second, constitution upon Pakistan in 1962 which created a presidential system demolishing the parliamentary governance system that was the premise through which Pakistan was achieved. However, this document, too, was put away when Gen Yahya Khan toppled his mentor Ayub Khan’s regime in 1969. It was in the aftermath of these constitutional experiments and authoritarian interventions amidst dismemberment of the country in 1971 that the quest for a new basic law began. The challenges before the democratically elected government and the constituent assembly were considerable as the nation was bitterly divided on political lines, ruptured by economic, social and economic problems and desperately trying to recover from the trauma of the eastern wing’s loss. But even in these difficult circumstances, the parties in parliament began the torturous yet vital task of framing a new basic law. By all accounts the efforts towards framing and adopting the 1973 Constitution was not easy because the gulf between the ruling PPP and the opposition alliance was wide and leaders from both sides regularly reviled each other. The adoption of the Constitution remained tentative to the end and many political observers were not sure if the task would be achieved and whether the opposition would end its boycott of parliament. It indeed is a tribute to the sagacity of the civilian political leadership that it succeeded giving the nation a cause to celebrate the first indigenously devised constitution.
The 1973 Constitution gave the country the basic regulatory structure for governance including a directly elected parliamentary system with a bicameral legislature rooted in federalism and appropriate provisions for every aspect of running the state. Unfortunately the constitution faced ups and downs, mostly down, during half-a-century of its existence but has exhibited exceptional resilience with the most brazen assaults coming during the Zia and Musharraf eras of military rule but it survived every assault and became a treasured national possession. Though it is rated the essence of governance in the country but it is a document that is far from perfect yet it is equipped with the tools to resolve disputes and address shortcomings. It could very well respond to challenges provided its very spirit is respected and adhered to. Currently the constitution is going through probably the worst crisis it has faced with almost crucial organs of the state are trying to deviate from its guiding principles by interpreting them to suit their own demands and ambitions. Hitherto whenever any challenge was faced by the constitution one or more organs of the state stood in its defence but the ongoing crisis is clearly indicative that all organs are contesting their positions in the country. The ensuing struggle their own space by reducing the others’ has put the constitutional order of things in tremendous difficulty and it is under extreme duress.
The constitutional crisis has served as a stark reminder of the profound disconnect that exists today within the body-politic of the country. The parliament does not refrain from rhetorically boasting about its supremacy though its hollowness as an institution is all there is to see. In its state of agitation it consistently criticises the judiciary pointing out the latter’s many faults while demanding that it keep within its constitutional bounds. However, when their criticism turned to the other habitually transgressing institution of the state, those same speeches are quickly muted by television channel operators. This play of things has made it abundantly clear that despite the vociferous claims of the members of parliament the establishment continuously lurks under the shadows and is unwilling to give up its dominance of the national affairs. This state of affairs is amply reflected when one notices that not even a single parliamentarian exhibited the temerity to say a word against the establishment implying that it accepts the situation as it is.
There is no harm in pointing out that a constitution is only as good as the spirit in which the political elites, specially the establishment, work it and this applies precisely to the current situation. There is hardly any doubt that the predicament faced by Pakistan currently is the outcome of abandoning the constitutional framework that in its essentiality entails that all institutions act within their constitutional bounds and avoid confiscating the space of one another. It is imperative to revive and follow the spirit of tolerance towards each other and explore constitutional solutions to their disputes instead of threatening to tear down the system and refraining from the temptation to interpret constitutional provisions according to their own advantage. The time has come when Pakistani power holders realise the fragile state the federation finds itself now and devise ways to rectify the wrongs done in the name of justice and fairplay. TW
Dr. Tahseen Mahmood Aslam is an educationist with wide experience