A major overhaul of 1973 constitution has been on the cards ever since the installation of the present dispensation. The government has formed a parliamentary constitutional reforms committee which is currently engaged in the task of formulating its recommendations.
The proposal for the induction of judges in the superior judiciary has been thrown open for public debate, while the other recommendations remain under wraps. The need for constitutional reform brought to the fore by the government itself has opened up a debate in the media, and among the general populace whose ideas, nevertheless, remain confined to drawing rooms and private congregations.
The subject, as it concerns the future of the country, needs to draw the opinion of the intelligentsia, legal experts, and people at large to public forums like media, so that the ideas thus generated are addressed at appropriate forum, and the people's aspirations are kept in view while finalising the constitutional reforms.
A two-part write-up by I.M. Ali carried by Business Recorder in its editions of 11th and 12th February, 2010 proposed radical changes, offering an out-of-box solution to the constitutional question. Another two-part write-up on the subject by Asif Ezdi carried by The News on 15th and 18th February, 2010, while proposing changes to the constitution opined that the reform of the constitution is "too important a matter to be left to a parliamentary committee which was formed only to implement the charter of democracy.
A wider debate involving parliament, the political parties, the media, and the civil society is needed". Some useful suggestions have been offered in both these write-ups which deserve serious thought. Two other articles by Sabir Shah have been carried by The News on 1st and 3rd March, 2010 relating to the qualification of legislators, and the appointment of judges of the superior courts.
Pakistan's history of constitution-making and tinkering with this sacred document has indeed been unfortunate, to say the least. India was quick to formulate its constitution, and Bangladesh also lost no time in framing its constitution after emerging as an independent state, while Pakistan, after over sixty years of independence and a number of constitutional experiments, still remains embroiled in controversies and differences relating to the form of the constitution and the provisions therein.
The smaller provinces, in spite of a federal system in vogue, suffer from the perception of deprivation and alienation generated by a feeling in them of being unequal partners, allowed an unfair share in the country's power equation.
A federal constitutional system has to meet the aspirations of the people of all federating units - without exception. It has to provide a mechanism whereby all federating units possess, at all times, a share in the power structure. The worst sufferer in this context has been Balochistan, which incidentally is the largest province area-wise but the smallest population-wise, yet mineral rich and strategically located.
Although, there is an equal representation of provinces in the senate under the 1973 constitution, yet this has failed to dispel the pervading sense of alienation since the upper House has no role in the formation of the federal government. Consequently, there has been no President of the federation from Balochistan.
There has only been one powerless Prime Minister (Zafarullah Jamali) from that province for a short period, and that too happened when a military ruler was at the helm. Under the system in vogue, and the way the political parties function in the country, general feeling among the people of the province is that it has no hope of ever wielding power at the federal level.
The only perceivable exception can be the nomination of a Prime Minister from Balochistan by a political party forming the federal government. Even in this highly unlikely scenario such a nominee would at best be a powerless chief executive, while the real power will be held by the leader of the party forming the government.
Having said that, it is difficult to visualise a situation where even this will be possible, since the way our political system runs the power is always appropriated to himself by the person who heads the party, unlike Britain (whose system we follow) where party leadership periodically changes hands, and the head of the treasury party does not hold or share power with the Prime Minister.
In the case of United States, states, including Nevada, have evolved special revenue generating avenues to help tide over their economic inadequacies. In our system, where power flows downwards from the federation, there are no special avenues for the under developed provinces or backward areas of provinces.
Rather the natural resources and major avenues of revenue generation are almost exclusively held by the federation, leading often to acrimony between the provinces and federation, as well as among provinces, over distribution of revenue generated by these resources and avenues.
This, coupled with the perception of denial of share in the country's power equation, has led to frustration and discontent. It would thus be seen that, beside the issue of governance, there is an inadequacy in the system under which the country is being run. It is the constitution of the country which has to address and resolve these issues. Hence, the need for a serious thought on whether the system under which the country is being governed is best suited to its needs.
Pakistan took over eight years to frame its first constitution, which was more like a surrogate of the Government of India Act, 1935.The enforcement of the constitution finally brought to end Pakistan's dominion status. The 1956 constitution had a short life.
However; the first military rule of 1958 tolling its death knell (it was on October 7, 1958 that President Iskandar Mirza abrogated the constitution, imposed martial law and appointed General Ayub Khan as Chief Martial Law Administrator. Three weeks later, General Ayub deposed President Mirza.) The second constitution was enacted in 1962 to suit the requirements of the military ruler of the time and provided the country with an executive presidency and an electoral college.
This experiment failed and the constitution was thrown out of the window with the exit of the regime. Pakistan went through an exceptionally unfortunate period thereafter, witnessing first the dismemberment of one-unit, and then the country itself.
After the country finally came out, though badly bruised, from the blood and dust of a terrible whirlwind, the 1973 constitution was framed by a political government amid much fanfare, with the consensus of the remaining four federating units. It was loudly claimed that martial law had been buried forever. Destiny laughed and winked over the assertion, however.
And, not many years later came a military intervention, which seemed to last forever; followed by another about a decade after the exit of the first, thanks to divine intervention; the interregnum being filled by political governments, muddling though their tenures unsure of themselves.
The constitution nevertheless survived, though more like a young monarch in the hands of a powerful and assertive regent. Meanwhile, during the thirty-seven-year life of the 1973 constitution, the larger part being spent surviving on ventilator, the country experienced vital changes in its power structure, with the establishment growing exceptionally in size and strength post the Afghan war, spanning over the early part of the decade of 1980s.
New and powerful power centers emerged. Although, there had been two military rules prior to 1973 constitution, yet they relied heavily for their sustenance on the strong civilian structure the country had inherited from the British rule. The situation on ground changed drastically in the decades of the 1970s and the 1980s.
The old service-oriented bureaucratic structure was demolished systematically, conceding ground to a weak interest-based corporate-cum-bureaucratic structure, while the establishment grew more enlarged, organised, systematised, cohesive, and powerful, emerging as a major stakeholder in the country's power equation.
Electronic media emerged as a powerful watchdog over the pillars of the state during the last decade. The most recent arrival in the power equation is the popularly reinstated superior judiciary which has come out of the shadow of the executive, and is no longer its handmaiden, delivering judgements at its calling. And mind you, these are irreversible changes.
They are all here to stay. They are all new stakeholders in the power equation in their own way. These are ground realities and an ostrich attitude will not make them wither away. Any systemic changes to be viable, therefore, have to take all these realities into consideration.
Meanwhile, as these changes were taking place and new stake-holders were emerging, time- the unstoppable and irreversible power- went by, and in the process the federating units who are the basic stakeholders nurtured growing frustration over their perceived alienation and deprivation. The most isolated among them falling in a free drift, away from the mainstream, generating growing discontent and disillusion among its populace and leaders.
These then are the realities the constitutional reforms committee or other such forum has to be cognisant of while formulating crucial proposals for constitutional reform. Constitutional provisions and/or system have to be proposed which will address these issues and realities.
A federal system survives, prospers, and fosters goodwill among the federating units only when all the federating units are satisfied and contented. In the United States, states used to be at loggerheads until the nation developed a modus vivendi, sustained by a system of governance acceptable to all the states.
This has helped that country develop as a cohesive whole and march on the road to progress. In our case, the spirit of goodwill and cohesion being in short supply, we, in over sixty years of independence in these fast moving times of information explosion and digital, electronic, and nuclear development, have failed even to evolve a recognisable identity of Pakistani nationhood.
The 1973 constitution survived two military interventions not because it embodies provisions which provide the best solution for the governance of the country. It escaped abrogation twice only because of a lurking fear in the minds of the two regimes which held it hostage- who nevertheless mauled it well and proper- that it may not be easy to formulate a consensus document to replace it, when the time came for bringing the country back to constitutional rule.
The constitution was never allowed a full run from the very beginning; the spirit of the constitution being violated from the day of its enactment. The state of emergency continued and Fundamental rights suspended, notwithstanding the enactment of the constitution.
As many as seven constitutional amendments were made in less than four years, followed eventually by the suspension of the constitution by the succeeding military government. When it was finally reinforced it was a document with a lot of patch-work which practically changed its form.
It was brought back to its near original form once, only to be suspended again soon thereafter. It was again a changed document when it was reinforced years later. It is now the endeavour of the parliamentary constitutional reforms committee not only to remove the patchwork, but introduce fresh amendments in the light of the charter of democracy.
There is, however, a big question mark whether the 1973 constitution in its freshly amended form will emerge as a consensus document which satisfies the interests of all the federating units and stake-holders. A constitution does not operate in a vacuum.
In order for it to be workable for a foreseeable period of time it has to be acceptable to all to whom it applies, and it meets their aspirations and needs. If it doesn't, there is no guarantee that it will not suffer its earlier fate again, or in a worse scenario, the fate of the earlier constitutions.
You may write what you will into the constitution, but if the provisions are not in consonance with the interests and aspirations of those to whom they apply they will never be worth the ink they are written with. Article 6 of the constitution is one such example.
Even with its presence in the constitution it failed thrice to protect the constitution from being suspended or held in abeyance, which in effect means its abrogation/subversion for a period of time. It has not been found possible, for practical reasons perhaps, to apply this article even after the 3rd November, 2007 suspension of the constitution was declared unconstitutional by the Supreme Court. Therefore, no matter what additional amendments are made into this article it is likely to remain unenforceable.
Until the political system gains enough maturity to be always able to prevent deterioration in governance to the extent that the constitutional machinery breaks down, writing of any fearsome language into this article, or any other provision of the constitution, will be of no avail.
As for the common man, he needs to first palpably benefit from the provisions underlined in the constitution, before he will stand up to defend it. If his life remains unaltered whether the constitution is in force, held in abeyance, or abrogated; whether any amendments are retained, introduced, undone, he is not likely to respond and come to the rescue of the constitution, or any of its provisions.
We have to develop the stakes of all the federating units, all people in their individual capacities, and all stake-holders in the sustenance of the constitution. Only then will it acquire the status of a genuinely consensus document which none will meddle with.
The spirit of the constitution envisages three pillars of the state- legislature, executive, and judiciary- functioning independently. However, in the system we follow the executive grows out of and is closely intertwined with the legislature.
There is in effect no meaningful separation between executive and legislature, contrary to the spirit of the constitution. Military which is de jure a part of the executive has, over a period of time, evolved a de facto independent identity of its own, due partially to military rules which together lasted about half the life of the country.
Till some years back the separation of judiciary from the executive had not been fully established, and district judiciary remained de facto intertwined with the executive. All levels of judiciary, including the reinstated superior judiciary, however, now stand clearly separated from the executive, satisfying the spirit of the constitution which is a happy augury and should be allowed to stay as such.
The constitutional reforms committee's proposal of a parliamentary committee scrutiny in the appointments of judges to the superior courts has evoked a lot of interest. It has, however, not met with general approval. In principle, the proposal appears sound, but it does not seem suitable in our present state of political evolution. In order for the power to oversee inductions into the superior judiciary, our legislators have to be an evolved body, like the legislators in developed countries where there is a mature and established political system.
If history of functioning of successive legislatures in our country is an indicator, our legislators are far from achieving the required maturity which would persuade them to perform their role keeping the interest of state and the system above party or personal interests and compulsions.
It would, therefore, be wise to keep the judiciary as sanitised from the influence of the executive and legislature as is practicable. If we introduce parliamentary scrutiny over inductions in the superior judiciary by minimising direct involvement of the executive it would practically amount to taking away with one hand what is given by the other.
In the write-ups referred at the beginning, a proposal has been made for the introduction of proportional representation system in the parliamentary elections. This suggestion needs serious consideration since it will allow representation in the parliament of a large section of population which goes unrepresented in the present electoral system.
Another suggestion has been made about injection of technocrats' expertise in governance. This also appears a useful suggestion since the talent and expertise of our technocrats is recognized and utilised even by the developed world. The fact that the life of an ordinary man in our country is heavily governed by the state, and our system has an excess of government, it makes a good case for institutionalised induction of technocrats into governance.
These are some thoughts for the parliamentary constitutional reforms committee to ponder before it finalises its recommendations and gives to the nation, yearning for a better future, a renovated constitution to govern their lives.
(The writer is a former officer of the Police Service of Pakistan.)
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