Constitutional Restraint, and what Loyalty to the State really means
Human beings are defined by restraint. Through law, morality, conscience, religion, social norms, culture. We have always imposed some limitations on ourselves through a restraint framework, the mode and mechanism of which has evolved over time. Take religion as an example. It is restraint placed by the deity working through theological (spiritual) basis rather than human-made institutions.
The very idea of a constitution is restraint on power. It provides some rules of the game. The principal objective of a constitution is to place some limitations on citizens, exercise of governmental power, and to provide structure for governing the state by establishing different institutions. Thus, the constitution is a modern-day restraint framework that every ancient society has had in the form of informal institutions such as religion, social and cultural norms etc. Only that it’s fairer, much more sophisticated, and better equipped to govern in this day and age.
Why did Pakistan fail to adhere to its Constitution?
Corruption, political instability, spineless leadership, military interventions, rampant terrorism etc. are all symptoms. The problem lies in the mindset of those who have been calling the shots.
General Pervez Musharraf’s words give us a peek into the actual underlying problem. The Pakistani man on horseback (Gen. Musharraf) employed sophistry to justify his usurpation of power. He stated the following in an interview:
“As a military man I took oath on the constitution of Pakistan. When I take oath on the constitution of Pakistan, the oath was actually to preserve the state of which this constitution is a part. Now if the state is going and the state is going to be no more, where does this constitution stand? I think it’s just a piece of paper to be thrown in the dustbin.”
Musharraf wanted to protect the state by flouting his oath and the very constitutional order upon which the state rests. This superficial understanding of the constitution emanating from a linear (binary) military mindset has had disastrous consequences for the state. The strongmen have always wanted to rush through reforms and ensure rapid enforcement without creating any inclusive systems. Temporary setups are established which function without the consent and participation of the people for whom they are built. The result, as soon as the usurper leaves, their individual-centric systems collapse, pushing the country in further chaos and disorder.
Islamization, Enlightened Moderation, Hard state. We have seen and lived through all of them. Every despot wants to impose their vision of prosperity, and protect their reign at the expense of the country.
Take Zia-era fiats. Article 58(2)(b) of the constitution which enabled presidential dissolution of elected assemblies (removed in the 13th Amendment, reinstated in the 17th Amend. and finally removed via the 18th Amend. in 2010) can be adduced. It directly facilitated the musical chairs fiasco between Mr. Nawaz Sharif and Ms. Benazir Bhutto during the 1990s. The said period was detrimental to the democratic continuity and by extension to our country. Because it diminished public trust in the democratic process. Men and women on the streets grew weary of democracy.
A common perception was instilled in the collective unconscious, that democracy was never meant for us. Despite the crystal-clear vision of our founder for a democratic Pakistan and the successful functioning of democracy across our eastern border, India.
Not a Barrier to Overcome
The constitution is not merely a rulebook or a piece of paper, as Musharraf would suggest. It is something far beyond that. Despots treat the constitution as mere technicality, a hurdle that can and is to be trampled, whenever need be. Without realising that constitution defines the very core relationship between the people and the state, and that free and fair elections are an effective and peaceful communication framework for smooth functioning of a state. Elections being the essential exercise for establishing trust between state and its people. Once dictators dent this relationship between the state and its citizens, it’s often difficult to repair.
Gen. Musharraf’s preposterous statement necessitates the determination of what is actually meant by state and government. And why adherence to the constitution is necessary and guarantees the existence of a state and its prosperity.
Distinguishing the State from the Government: What does Loyalty to the State really mean?
Government is one of the constituent elements of the state. State, being a larger entity incorporates the government. Our constitution obligates loyalty to the state and allows criticism of the government and its subsidiary institutions within some parameters. The difference between the two is necessary for understanding the concept of patriotism.
Article 5 of the constitution establishes duties to the constitutional order. Loyalty to the state is loyalty to its constitutional order, and not just its government. Under Article 5 loyalty to the state does not mean unconditional support to the government. The government itself derives its authority from the constitution therefore, it must be elected legitimately and should function within the confines of the constitution.
State: A Political Idea
A state is a continuing political and legal entity. Its conventional elements are population, territory, government and sovereignty. At the very nascent stage, a state is a political idea. It later fulfils the elements for statehood.
The overarching legal framework for executing that political idea underpinning a state is the constitution. It sets the path for government to function and recognises rights, duties, and limits for both parties to the social contract. The constitution gives legal expression to a state’s political ideology. For instance, Pakistan’s political ideology, as envisioned by her founders, was a democratic state which was to function in accordance with the core principles of Islam. The same is reflected in our constitution.
Loyalty therefore, lies not with the territory but with that political ideology. That very political ideology is effectuated through a legal framework, wherein the constitution sits at the apex. Thus, from a constitutional perspective, fidelity of citizen is not to the piece of land upon which the state physically exists, but to the political idea and legal framework that converts the ordinary land into a state, a homeland. The bottom line is that loyalty to the constitution is loyalty to the state.
The idea of patriotism isn’t just limited to waving flags on Independence Day or joining the armed forces. In its truest essence, it is to conform to and uphold the foundational principles which define and govern the state i.e., the constitution.
But what if the people want to change the political and constitutional order of their state? If the people of a state decide to depart from the existing political order or ideology, and make one to define their state. Then so be it. The constitution will follow that political direction and will be changed accordingly. But the same will be done in a democratic and inclusive manner according to the procedure provided in the constitution. Because it is the political institutions of a state that shape its legal and economic institutions.
Historical Account
To set the record straight, Pakistan came into being through a political and constitutional process, not wars or battles. The largely free and fair elections of 1945-46 gave the Muslim League a massive electoral victory which played an instrumental role in our independence. The electoral mandate ensured that Mr. Jinnah had the political leverage to negotiate on behalf of Muslims of the subcontinent. There were widespread violence and massive loss of human life during the partition, but the process of independence was political. Therefore, Pakistan owes its existence partly to the elections of 1945-46.
Myths, Utility, and the Element of Dignity
A persistent myth in Pakistan is that a rules-based system, particularly constitutional governance, is ineffective. Many term it an ‘alien concept’ which is simply not for us, and will never function in our society. It may seem ineffective in the short run. But the same is essential for stability and predictability which yields positive long-term political, and potentially better economic results.
Principally because democratic accountability incentivises those in the corridors of power to take interest in, improve and keep providing the public good provisions to the ordinary men and women of the state. An illegitimate, undemocratic, elitist and exclusive political system rarely works for the public good.
From a utility perspective, a democratic rules-based system yields prosperity and serves the provision of public good. However, a democratic system isn’t just about utility or prosperity. It goes to the very core of human dignity. Our collective governance frameworks should be as inclusive and democratic as possible. For it is the inherent right of every person to have a say in how the affairs which affect him or her are conducted. Democracy is more of a question of human dignity and individual self-worth rather than merely about economic numbers or social benefits.
How can the Constitution function?
Formal institutions function when they are backed by informal institutions. Without the support of informal institutions, formal institutions risk becoming hollow. Laws may exist, bureaucratic offices may be staffed, budgets allocated, and infrastructure established, yet institutions often fail to fulfil their intended purposes, prioritising appearances over effective functioning.
A constitution can only function in its true letter and spirit when people take ownership of it, and the governmental authorities exercise self-restraint. Becausenot every aspect of governmental authority can be regulated. There is always discretion which should be exercised in such a manner that upholds the spirit of the constitution.
There is another recurring pattern in Pakistan. When in power crush the constitution but when the tables turn and one finds himself at the other side of the aisle (the receiving end), then immediately turn to the constitution for protection. Musharraf was no exception. Ironically, when sentenced to death, he suddenly became a constitutionalist. He relied on the same constitution which he believed could be thrown in a dustbin. Fundamental principles of law and requirements of the constitution were violated by the judgment which sentenced him, alleged the deposed dictator in exile.
Amidst the clouds of pessimism looming over our country, we need to understand that in a vibrant democracy, civil society— including students, activists, judges, and the legal fraternity need not be pragmatic. They need to be idealists and must speak for upholding constitutional morality. Those holding the levers of power will accept our constitution when we start owning it and demand its implementation.
Conclusion
The idea of constitution still startles me. That somehow most of us agreed on some fundamental principles to run our state. It is the epitome of cooperation and coordination between human beings, and the culmination of the social contract. It’s an accomplishment, as significant, as any other scientific or technological innovation. Be it the moon landing, reusable Space X rockets, or AI.
Pakistan should embrace and benefit from constitutional governance rather than discarding it. To escape its loop of perpetual crisis, Pakistan needs what John Adams called “a government of laws and not of men”.
