Loyalty, State And The Step Mother

Loyalty, State And The Step Mother

In a constitutional democracy, it is not the citizens but their chosen representatives who govern the state by becoming part of the legislature and by forming a government in it. They run the state by legislating laws for all walks of life and by imposing the same on the very citizens who have chosen them. So running the state is in fact an interaction between citizens who are the ‘chosen ones’ and the ones who are choosing them.

This interaction between citizens is formalized, personified and administered by a document called the “constitution”. Citizens of Pakistan are also fortunate to have one. However, the Constitution of Pakistan 1973 like many other constitutions in the world is idealistic, at times non-practicable and many times unpracticed. Concepts of loyalty and treason are two fine examples out of many others, giving an account of this dichotomy.

Article 5 of the 1973 Constitution declares loyalty to the state as a basic duty upon every citizen and declares obedience to the Constitution as an inviolable obligation of every citizen. This Article deals with four broad concepts, namely loyalty, duty, obligation and obedience. Duty and obligation are often used interchangeably, however in the words of German philosopher Immanuel Kant “an act of duty emanates from moral law whereas an obligation, on the other hand, arises out of set of rules aimed at maintaining order”. If we compare Kant’s version of duty with Article 5 of the Constitution of Pakistan, 1973 it appears that this article declares loyalty as duty which one may say is a concept moral in kind and declares obedience to the Constitution and law as an inviolable obligation. In short, it may be inferred from Article 5 that obedience as an obligation is governed or administered by the Constitution whereas loyalty as a duty has no guidelines, or set of rules, or binding force upon a citizen, hence it is governed by morals and morality.

This gives rise to another important question of whether loyalty and obedience are synonymous, whether these two terms have no differences and why the Constitution has used these two distinct terms. The answer to this question is simple and is conspicuous from the caption of Article 5: “Loyalty to state and obedience to constitution and law”. This makes it clear that a citizen’s loyalty is accountable to the state and on the contrary, a citizen’s obedience is subject to the Constitution and law.

The concept of state has two important determining factors which are ‘nation’ and ‘territory’. The Pakistani state by this definition is made up of Pakistani nationals (living in Pakistan and abroad) and the territory of Pakistan (undisputed or disputed). In this scenario, loyalty to the Pakistani state can also include fighting for the interests of Pakistani nationals and for the rights of de facto nationals living in the disputed territories of Pakistan. It shall be helpful to take the discussion further by elaborating the concepts of nationals and citizens. A layperson would view the difference as: nationality being in a state by birth whereas citizenship being an acquired legal status in a state. In short, even if loyalty is construed in a strict scope, one may say that loyalty to the state is about working faithfully for the interests of the nationals and for the protection of the territory of that state. It is important to note that even if we treat loyalty as a duty, it can be demanded, particularly from the ‘chosen representatives’ of the nation, or persons serving the nation in official capacities. To substantiate this argument it is also interesting to note that an ‘oath’ is taken by these chosen representatives and other officials working in a capacity one way or the other to serve the nation and to defend the territory of the state, be it parliamentarians, army officials, judges or civil executives.

The concept of loyalty primarily rests with the persons effectively running the ‘organs of the state’ i.e. the legislature, executive and judiciary because they are the ones who administer, protect and defend the territory of a state, enact laws for the nationals and impose these laws upon them. However, reciprocal obedience is demanded from common citizens.

There is a stark difference between loyalty and obedience. Disloyalty may lead to the disintegration of a state like we witnessed happening with Pakistan in 1971, when interests of the nationals and the territory of Pakistan were not protected, sending the state into chaos and collapse, whereas disobedience on the other hand, is led by violating the laws of the state. Remedy in case of disloyalty to state is not specific or absolute, whereas remedies for disobedience towards the laws of the state range from death sentences to ordinary fines. One may say that disloyalty is more moral in character and that disobedience is legal.

The irony is that the concept of state in the 1973 Constitution of Pakistan is comparatively less defined than the concept of loyalty. Interestingly, our Constitution defines the state from the perspective of various organs of a state, such as the legislature, government and executives empowered to impose taxes. It ignores the important concepts of nationals and territory altogether that could define a state. Article 7 of the Constitution defining the concept of state is reproduced as follows:

State as per our Constitution means the federal government, Majlis-e-Shoora (Parliament), a provincial government, a provincial Assembly and such local or other authorities in Pakistan which are, by law, empowered to impose any tax or cess.

Without prejudice to the argument that a state has to be defined in terms of national and territorial lines, a state should also be able to accommodate the sub-nation concept. Besides Punjabi, Sindhi, Pakhtoon, Balti and Baloch, our state should be able to recognize more federating units on national, territorial and administrative lines. The collection of taxes is a duty of the government and the right of a state; it must not be confused with the concept of the state.

It is the definition of state in our Constitution that requires explanation and clarification. It is the concept of state that needs elaboration. Defining state from the perspective of a nation and territory shall help us resolve issues like that of Kashmir. Defining concepts like loyalty shall help us in understanding concepts like ‘treason’ that had been introduced into our Constitution by its makers (Article 6). Treason as a concept is not any less confusing than the concept of loyalty. Even by all liberal standards, the concept of treason is the most redundant concept found in our Constitution. Redundancy of this concept is due to the lack of clarity that this nation has over the concept of loyalty and state.

There comes a sigh of relief for the readers of our Constitution after having read the Preamble to the Constitution, which says that:

  • In a state, the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, should be observed;
  • Muslims of Pakistan, having special status in the Constitution of Pakistan, should be enabled to order their lives in their individual and collective spheres and in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;
  • Minorities should be enabled to freely profess and practice their religions and develop their cultures;
  • All citizens must be guaranteed fundamental rights, including equality of status, equality of opportunity and equality before the law with social, economic and political justice, freedom of thought, expression, belief, faith, worship and association subject to law and public morality;
  • Independence of the judiciary should be fully secured;
  • Integrity of territories of the federation, its independence and all its sovereign rights over land, sea and air should be safeguarded.

In conclusion, one may infer that the Preamble discusses rights of the citizens and the state. Surely if democracy, freedom and equality are rights of a citizen on one hand, then on the other hand independence and integrity of the territories of the federation are sovereign rights of the state. Hence, the Preamble of the Constitution still does not explain the concept of a state – it only mentions the rights of the state and the citizen. However, who shall ensure these rights for the state and its citizens? If the state and citizens, both are on the receiving end, then who is on the giving end? The group of citizens who run the organs of the state, who constitute the Parliament, who are part of the executive and who administer the judicial system – they are on the giving end. They are the ones who make the state. They are the ones who give state the deserving status of motherland, but if your motherland is not giving you what you deserve, then do not blame the State – blame the ‘stepmother’. Surely, the stepmother in this case is none other than those who betrayed their motherland, ignored the interests of fellow countrymen and justified being called disloyal. They are the ones who give meaning to both the concepts of loyalty and treason. It is time to revisit the concepts of loyalty, treason and, more importantly, the state.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Muhammad Saad Khan

The writer is an Advocate of the High Court and a lecturer at Punjab Law College.



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