A Comparative Analysis of the Constitutions of Pakistan and the US

A Comparative Analysis of the Constitutions of Pakistan and the US

The Constitution of the United States of America is the first ever written constitution and is well over 200 years old, yet even today it is looked up to as one of the most inspiring pieces of legislation the world has known. There have been 27 amendments to the original text and most of it has (rather successfully) withstood the test of time.

As far as the Constitution of the Islamic Republic of Pakistan is concerned, it is a written constitution very similar to that of the US. Both are Federal States with national governments and individual provincial/state governments with individual autonomy and exclusive control over matters the national legislature does not have control over. By contrast however, the Pakistani Constitution, in its 42 years has undergone 21 constitutional amendments and has been subject to much alteration, especially recently, with 9 amendments in the past 20 years. The last time the US Constitution was amended was in 1992!

The problem with such frequent alteration is that the more you change the constitution, the more legitimacy it is likely to lose. As opposed to ordinary statutes, the constitution delegates authority and is seen as a source of power and legitimacy, and thus needs to remain as firm and assured as possible. The more you update an ordinary statute, the better it gets, but the more you revise a constitution, the weaker it appears in the eyes of the public.

There is also this suggestion that the more you change it, the further it moves away from its original purpose and it loses its “original patriotic” value – something the public expects from an Article that grants authority to all other articles and limbs of state.

Finally, the constitution is considered as a “sacred” instrument, one that all actions of state derive their authority from, therefore, there is this aura of untouchability and timelessness, as though it is ‘untouchable’ per se. The more it is amended, the less of a mythical authority it has.

The US Congress understands this, this is why elected legislatures have been so reluctant to alter the constitution and have instead, relied on individual states to govern particular matters to keep the textual legislative cycle ticking. Whereas, every elected Pakistani legislature that takes control of the Majlis-e-Shoora tries to leave its own legislative footprint on the 1973 Constitution.

As was stated earlier, both Pakistan and the US are Federal States, both have two levels of government, both have two houses of parliament, the upper house is called the Senate for both the countries, and the duties of both houses are very similar as well.

However, that is where the similarities end.

The reason the US has been able to protect the sanctity of its Constitution as well as excel in modern law and policy, both at a state level and a federal level, is because they have always propagated the idea of organic change, meaning that the origins of both the systems of governance have been significantly different. The US started off as a collection of post-colonial states/territories that decided to band together to form a unified country. The national legislature or the Federal Congress had no original power to begin with, any and all authority it received was through the delegation of power by the states. The power at the centre came from the lower levels, each state gave up part of its sovereignty to enable a national system of government to exist and empowered it with only as much power as they thought fit. Even though historically the states have been reluctant to give up to much to the federal government, today through the “Commerce Clause” the federal government of the United States has a lot of real power, however, that is not relevant for our discussion. What is important to understand is that, while the power in the United States has come from the bottom-up, the national constitution has been allowed to keep its original shape whilst the state agencies have been able to adapt to changing circumstances in the context of an ever evolving global sphere.

The story in Pakistan on the other hand has been very different. The municipal constitution has always devolved power from the top-down, meaning that the central government has started off with all the power, as opposed to the provinces. This difference began because the provinces were united as a nation state when the British left in the middle of the 20th century and a central system of administration was set up, as opposed to states/provinces coming together to form a central government. So the bulk of actual legislative and political authority has always vested in the federal limbs as opposed to the autonomy of the provinces being overriding. There has been no organic or grass-root evolution that has led to a national system of law making power in Pakistan. The Majlis-e-Shoora has always been supreme. This meant that the national constitution, essentially, had a large target on its back from day one. And it was always been thought of as ‘amendable’, at least in the view of our national assemblies, as opposed to the US constitution which was (and still is to a large part) thought of as ‘untouchable’.

The closest Pakistan has come to mimicking the US model was through the 18th Amendment, where some legislative and political authority was delegated to the provinces, enabling administrative control to be exercised much closer to the grass-root level as opposed from a higher central position. Yes this means differences in certain policy and economic matters inter-province, however this lack of uniformity is required as well as desirable in certain aspects because it is clear that the populations in different provinces have different mindsets and different ideals of how identical matters should be handled in their province. So perhaps this change was necessary. It also means that when a Punjab-centred party comes into power at a state level, on the back of large voter bases in the province, the other provinces have greater protection as more matters now lie in their hands as opposed to the federal government. It may actually lead to a greater representation of the peoples will, at least with regards to province related matters. And this is a good thing because not only is it the will of a constituent population being taken into account, changes made to provincial legislation by the provincial governments when needed also mean that the national constitution stays out of the firing line, thus ensuring less need for change and greater stability – something our constitution desperately needs right now.

Interestingly, it would appear that these differences in approaches also trickle down to the respective judiciaries; whereas in the US, the civil rights movement lead to a decision like Brown v Board of Education and the women rights groups moved the Supreme Court to decide Roe v Wade and most recently, the struggle of the LGBTQ community has lead to the affirmation of Obergefell v Hodges, showing a clear shift from the people up to the authorities in an organically alterable system. The Pakistani judiciary by contrast has been extra-judicially active and the introduction of and subsequent usage of the ‘suo moto’ power has shown a clear “we know better”stance on behalf of the national courts, forcing important changes and statutory stances down the throats of the local population in a top-down method of decision making.

Whether or not the approaches to law making and power devolving at a governmental level intra-country have any effect on the nature of the judicial decision making remains unclear, however these similarities are worth noting. Also what is worth noting is that as a general rule, the people of the US seem more empowered and satisfied by the court system than in Pakistan. They also have juries that democratize the process even further and fuel the organic change, something that Pakistan might consider incorporating as a greater means of empowering its own (relatively socially/politically active) people.

One thing remains abundantly clear though, that to gain any form of stability and support for its constitution, the local government needs to take some pages out of the US government’s playbook. Even though a majority of the US Supreme Court bench does not agree with the Constitution and believes it needs change, publicly it supports and backs the document, as do the members of Congress, they would much rather rely on the states to sign a unified agreement than change the historic document itself. Their oaths to protect and uphold the sanctity of their Constitution actually matter and hold up during their tenures. Let’s just hope our future law makers follow suit.

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