Fighting for constitutional primacy in Pakistan

The strongest is never strong enough to be always the master, unless he transforms strength into right, and obedience into duty … Let us then admit that force does not create right, and that we are obliged to obey only legitimate powers.

– Jean Jacques Rousseau, The Social Contract

A country without a constitution or rule of law, where there is no independent judiciary and no fundamental freedoms and rights, has no place in the contemporary comity of civilised nations. Government and politics, as the world today knows them, are alien to Pakistan. The scene in the country today bears resemblance to Thomas Hobbes's notion of primitive anarchy, marked by a "war of one against all", as well as to Rousseau's idealisation of the "noble savage". Unfortunately, for more than half a century now, Pakistan has been mired in political and economic uncertainty, and has had neither domestic stability nor constitutional integrity.

Pakistan came into being primarily as an Islamic state, with a moderate, democratic and progressive outlook. The country had a clear roadmap, bequeathed by Quaid-e-Azam Mohammad Ali Jinnah, to build Pakistan as a "modern and democratic" state based on pluralistic democracy, the rule of law, religious freedom and communal harmony. Pakistanis today, however, wonder how a country created in the name of Islam, which stands for peace, equality, tolerance and fraternity, became the focus of the world's negative attention, for reasons that have never been part of Pakistani culture or faith. Extremism has never been a creed of the people of Pakistan, nor have its people ever condoned violence of any sort.

For any contemporary state, its constitution is its solemn and inviolable 'social contract', guaranteeing fundamental freedoms and basic rights of its citizens, including their inalienable right to choose or change their government through the freely cast ballot. This contract also establishes the power and duties of the government, and provides the legal basis for its institutional structure. In Pakistan, it took nine years and several governments after Independence to create the state's first constitution in 1956. This was then abrogated in less than three years. Since then, the country has had two constitutions, one promulgated by a military ruler in 1962, and the other adopted by an 'elected' legislature in 1973. This latter document has since been amended 17 times, leaving very little of the original text in its essence. Indeed, it is a different constitution altogether, practically reduced to a piece of paper, contrary to the vision of the founders of Pakistan.

Praetorian irony
The Quaid-e-Azam had a unique ability to see far ahead of his times. Addressing the army officers at the Quetta Staff College on 14 June 1948, Jinnah urged the armed forces to "…understand the true constitutional and legal implications of their oath of allegiance" to the country's constitution. In so doing, he was clearly foreseeing the ominous writing on the wall. Pakistan's subsequent political history is a sordid tale of broken oaths and unabashed military takeovers.

From the very beginning, power struggles deprived Pakistan of stable and functional political institutions, opening the door wide for military interventions. The country's difficulties were aggravated by frequent political breakdowns and protracted military rule, causing the state to seemingly be possessed by a 'praetorian' curse. Ironically, a country that, at its birth, had been considered a "20th-century miracle", and which had been fought for and won entirely through a democratic struggle, is now struggling for constitutional primacy, and thereby for a place among the peaceful countries of the world.

Given Pakistan's peculiar socio-economic and political culture, based on a combination of feudal and tribal structure, along with its continuing high rates of poverty and illiteracy, the country has evolved a parliamentary system without the Parliament ever being a fully sovereign body. With the Parliament rarely playing any significant role in the country's decision-making process, Pakistan's politicians have remained overwhelmed by the 'invisible' extra-constitutional forces that have kept them fighting each other. Historically, the parties may have profited from the privilege inherent in the system, but in real terms they have always been the losers, because when there is no democracy, parties cannot function as parties. Because of their contentious political socialisation, 'legislating' is a business beyond the capacity of present-day politicians, and is seemingly alien to their temperament. Rather, their attention has always been focused elsewhere, never losing sight of the true sources of 'power and bounty'. To them, genuine pluralism, good governance, rule of law, separation of powers, institutional integrity and normative standards have all become secondary.

Pakistan's has been a culture of political opportunism and ineptitude, which has accepted the entrenchment of military dominance and made it a norm. The sole beneficiary of this system has been the 'wilful ruler', who, as Machiavelli foresaw, has been either the child of fortune, one born into power, or one who acquires power through deceit and force. Indeed, Pakistan became an archetypal example of the Machiavellian "princedom", in which sovereignty does not reside with the people, and which is premised on the infamous 'doctrine of necessity' as defined by weakling judges. In fact, this doctrine has been used repeatedly by successive military dictators in Pakistan to circumscribe the supremacy and integrity of the constitution.
 
To retain power, Machiavelli's 'prince' must eliminate enemies within the state. And in destroying his enemies, "he must get rid of them decisively without mercy, lest some individuals suffering from minor injuries return to seek revenge." This has certainly been the pattern of leadership in Pakistan. In so doing, these 'princes' have always found readily available wizard attorneys to serve them, as well as pliant judges to sanctify their military coups and acts of constitutional usurpation. As a result of this long tradition, the cursed 'doctrine of necessity' has become an integral part of the country's body politic, and has stifled democracy again and again. Military dictators have arrogantly ruled the country for decades, by declaring themselves 'indispensable' on the basis of this doctrine – and, whenever necessary, by remorselessly eliminating their civilian opponents.

In 1951, the first prime minister of Pakistan, Liaquat Ali Khan, was assassinated in a conspiracy that to this day remains shrouded in mystery. In 1979, a popularly elected prime mister was executed after a set-up murder trial. Thereafter, two additional elected prime ministers were banished, disallowed from returning home until very recently – that too as part of an externally manoeuvred and politically motivated power game. Throughout the long spells of military rule, Pakistan has been experimenting with different governmental systems at different times, and sometimes all at the same time.

Cromwellian parallel
The present neither-parliamentary-nor-presidential system, which remained under military straps for nearly eight years, has no parallel in either political philosophy or contemporary history. The closest possibility is perhaps the Cromwellian era of 17th-century England, known for its assortment of political experiments. In Pakistan, as in Cromwell's England, fundamental values of freedom, democracy and human dignity have all been breached with impunity. Constitutional supremacy and the rule of law have remained subservient to the will of an individual. As in the England of the 17th century, institutional paralysis has kept almost the entire country fundamentally disenfranchised.

There is, however, one difference in this analogy. Cromwell, an outstanding commander and an effective leader, did not pretend to have democratic credentials. He realised that the source of his authority was force, not law. And he died a frustrated man within seven months after he dissolved the last Parliament, having utterly failed in securing any popular basis for his power.

Another lesson of history that we have not yet learnt is that humankind requires peace, not war; and a state, in order to survive and prosper, must be organised for peace. In the case of Pakistan, throughout its independent existence, the people have been living under a perennial state of 'military primacy' in national priorities and policies. Meanwhile, the citizenry has been left far behind in the global race for economic growth and sustainable development. The unaddressed challenges of poverty, hunger, disease and illiteracy remain as daunting as ever. Others have made great strides, while Pakistanis are still lost in the abyss of socio-economic vulnerability and political depravity.

But in recent years, Pakistanis have been facing new challenges, emerging from changing global dynamics. Grave crises and acute problems within Southasia have proliferated in a manner that has not only made Pakistan a focus of world attention and anxiety, but also forced Pakistanis to make difficult choices in the perennial struggle for security and survival as an independent state. With the attacks of 11 September 2001 giving Pakistan a new regional role and global relevance, the country is now facing one of its most crucial trials. The goal is to determine how to restore Pakistan's raison d'etre even as it copes with the challenges of our times. These challenges include the country's newfound global image as a hotbed of religious extremism and obscurantism, as well as the perceived ground zero of the US's 'war on terror'.

Personal constitution
Since early March 2007, General Pervez Musharraf has been consumed with his obsession for power at any cost. After choosing his means of staying in power, he has been ruthlessly applying those means, no matter what the people of Pakistan, or those of the world, think of him. There appeared to be no legal or moral inhibitions that could moderate his actions, as was particularly evident in his blatant removal of Chief Justice Iftikhar Chaudhry, so that his election as a civilian president would not be voided by the independent judiciary. What was as blatant was the subsequent declaration by Gen Musharraf of open war against the media and civil society.

The general then went ahead with his 're-election' on 6 October – while still in uniform as army chief – from the same assemblies comprising of central and provincial legislatures, just completing their tenure, that had elected him for his last term. As if this was not enough, Gen Musharraf shocked the world with his 3 November extra-constitutional blitz. During the course of this onslaught, he not only suspended the 1973 Constitution, promulgating instead a 'provisional constitutional order' (PCO), but also illegally removed those judges who refused to take fresh oaths under his PCO, including Chief Justice Chaudhry, who had been reinstated by court order.

This omnipresent acronym, PCO, was quickly re-dubbed the general's 'personal constitutional order'. But the joke fell somewhat flat when the realisation dawned that this dispensation, representing an individual's personal whims, had indeed become the law of the land. In one stroke, martial law slapped on 3 November dealt a blow to the Constitution, the judiciary, the media and the fundamental rights of the people. The accompanying draconian measures not only destabilised the country, but also incurred international opprobrium.

The media, especially the electronic media, was particularly targeted, largely for conducting itself throughout the crisis as a truthful, courageous window into the ugly manifestation of power and authority – as well as into the hearts and minds of the country. Similarly, the general's shenanigans have allowed the country to develop a strong civil society, comprising the judicial fraternity, the legal community, intellectuals and academics, journalists, writers and poets, human-rights activists and students. All of these groups have shown themselves determined to uphold democratic norms, not those prescribed to them by any individual in power – political or apolitical, civilian or otherwise. The clarion call by the public gatekeepers was loud and clear, and everyone could both hear and feel it.

The world community, already concerned over the developing situation, responded relatively quickly, endorsing the call for the restoration of constitutional rule in Pakistan. The country's friends and allies, meanwhile, were embarrassed into asking for a return to some form of representativeness and accountability in government. George W Bush and his secretary of state, Condoleezza Rice, both telephoned Gen Musharraf, asking him "to rescind the action, relinquish his army post and hold elections in January". Britain expressed similar concerns, urging Gen Musharraf to step down as army chief by 15 November and hold elections in January. The Commonwealth secretary-general deplored the emergency rule, and his organisation subsequently expelled Pakistan for violating its fundamental values. Likewise, a loud message also came from UN Secretary-General Ban Ki-moon, who expressed his "strong dismay" at the situation in Pakistan.

A popular civil-society-led movement at home and strong international condemnation did produce some results. Gen Musharraf finally made the move that he had been promising for the previous few years and, if we are to believe it, tearfully took off his uniform on 28 November. With this reluctant transition from Gen Musharraf to Mr Musharraf, he has also taken the oath as civilian president for a 'second' term, though several questions of legitimacy stare his 'presidency' in its face. The two most basic issues are Mr Musharraf's eligibility in uniform and his re-election through the outgoing assemblies, both of which will continue to stigmatise his credentials as being devoid of both legal and moral authority. Certainly, few Pakistanis believed Gen (retd) Musharraf's 're-election' to be a step in the democratic direction.

Gen (retd) Musharraf
On 15 December, President Musharraf lifted the emergency, repealed the PCO and restored a badly mauled Constitution, complete with numerous new amendments passed through 'unchallengeable' presidential orders. Addressing the country on this occasion, he categorically ruled out going back to the status quo ante 3 November as demanded by a vocal civil society. The president also stated that he would not reinstate those judges who had been removed from office, nor would he repeal the curbs placed on the news media. In so doing, far from reversing the actions he had taken in his capacity as army chief, President Musharraf entrenched them further, by giving them a life beyond the period of emergency. His individual-specific amendments in the Constitution were meant only to consolidate his own position by providing legal cover to the actions he had taken under the emergency, which now cannot be challenged by any court.

This situation was best described on a poster prepared by students of a local business school in Lahore following the 15 December speech, which read: Emergency Lifted, Nothing Restored. Amazingly, President Musharraf is making these current decisions under powers that he first used in his capacity as army chief, in order to impose an extra-constitutional state of emergency. In anticipation of his vacating the office of army chief, he conveniently transferred 'de facto' powers of the army chief to himself as civilian president. This was a person-to-person exclusive transfer of power, designed to ensure that Gen Musharraf, even after becoming President Musharraf, continued to own both the Constitution and the law. In few places in the world is state power concentrated so densely in one person. Of course, the big question in the current situation is this: What if the new army chief, General Kayani, wants those 'uncivil' powers back, and also develops presidential ambitions, once he is ready to take off his uniform?

Pakistan stands today at a critical crossroad. The stakes are very high. The country's body politic needs desperately to be 'civilianised', returning to a robust democratic order based on the will of the people and rooted in constitutional supremacy, separation of powers, independence of judiciary, rule of law and good governance. Obvious though this may be to some, this is the only roadmap that will reassure the citizens of Pakistan and lead the country to a more respectable place in the global order. Pakistan's recovery from its current political and constitutional crisis is predicated on the following measures, which were issued by 23 of the country's former ambassadors, including five foreign secretaries, in a mid-December declaration:

• Immediate restoration of the Constitution and the judges of the Supreme Court and High Courts, as constituted before the declaration of emergency on 3 November 2007;
• The formation of neutral caretaker cabinets at the federal and provincial levels, and reconstitution of the Election Commission to ensure the holding of free, fair and transparent elections to the national and provincial assemblies;
• Immediate release of all persons imprisoned or detained under the emergency, including judges, lawyers, journalists, students and others;
• Full restoration of the fundamental rights guaranteed by the Constitution, and the lifting of all restrictions imposed on the media;
• Strict adherence by the armed forces to their oath and constitutional role, in accordance with the directives given by the Quaid-e-Azam; and,
• Strict application of the principle of accountability to holders of public office.

The world's major powers must recognise that a Pakistan under a democratically elected civilian government, with stable institutions, including an army with undivided professional integrity, will be a more reliable, more effective and more appropriate partner than a military regime in disguise in Islamabad. Simultaneously, the people of Pakistan must develop faith in themselves as the final arbiters of their own destiny. Caretakers of any breed will not solve their problems. Pakistan owes its existence to a visionary lawyer and constitutionalist who was wedded to the rule of law. At this juncture, Pakistanis must keep the Quaid's legacy alive, for therein lies Pakistan's survival in democracy and economic progress.
    
— Shamshad Ahmad is former Foreign Secretary of Pakistan