Pakistan Needs a New Constitution

Musharraf has relented and taken off his uniform. Western leaders have welcomed this development, cautiously hoping, while prodding for free elections and people power. But, are they being shortsighted?

Pakistan’s fundamental problem is not fundamentalism. But, rather that the country does not have a constitution that its people can believe in, that the institutions can follow and the military can defer to.

Pakistan’s history of constitutions and the resulting malpractice rivals the tragic experiences of Mukhtaran Bibi, the Pakistani woman, who was raped and paraded naked in her village. To further the ignominy, her violators walked away free.

Similar has been Pakistan’s fate. Military dictators and civilian leaders who have occupied the helm of Pakistani power, for 50 of the last 60 years, have repeatedly tampered with the Constitution if not radically changed it. The Pakistani people have been victims to the follies of the ruling class.

In the most recent rendition of this phenomenon, the current President occupies office only after having fired the Supreme Court judges, throwing opposing voices in jail and mowing down all media sources.

And there is little hope from the forthcoming elections. At least one of the two civilian contenders to high, elected office has a history of constitutional improprieties. The Pakistani people, visibly fed-up of this kind of ruling class, are being asked to go to the polls with few real choices.

Pakistan’s challenges are so historically rooted, a topic for another time, that one hopes the world’s leaders will call for nation building and not for momentary chessboard moves.

Pakistan’s Constitutional History

Observers may say that no new constitution could arbitrate between the military and civilian powers unless the Generals step down. Or, that a nation threatened with terrorism has no place for a document of laws.

I disagree.

Pakistan never went through a focused, deliberative process of defining itself and creating laws that could be captured in a Constitution—a Constitution that could then have been socialized with the masses. Pakistan’s people never got runway to build power, thus minimizing their ability to control divisive forces, and containing the military to the barracks.

Separately, those who believe that Islam and democracy are at opposite ends, make an existentialist argument—all one has to do is look at India, Indonesia, Turkey and immigrant populations in the UK, the US, Canada and other countries.

History tells us that the essential steps in nation building that should have happened way back starting 1947 never transpired in their fullest form in Pakistan. A Constituent assembly met on August 11, 1947, four days before independence and then operated as the federal parliament of Pakistan.

In Pakistan, close to a decade after independence the constitution was approved on March 23rd, 1956. Till then, the India Act of 1935 provided the framework for governance—a symbolic bastion of pre-independent colonial India.

In Pakistan’s formative first decade the country had already undergone multiple changes in leadership, unlike India where Dr. Rajendra Prasad and Pandit Nehru were able to provide stability to solidify institutions building off of a Constitution that had been ratified in 1950, less than three years after independence.

Pakistan's Leadership from 1947-1958

Mohammad Ali Jinnah 1947-1948 Governor General
Khwaja Nazimuddin 1948-1951 Governor General
Liaquat Ali Khan 1948-1951 Prime Minister
Malik Ghulam Muhammad 1951-1955 Governor General
Khwaja Nazimuddin 1951-1953 Prime Minister
Mohammad Ali Bogra 1953-1955 Prime Minister
Iskander Mirza 1955-1958 Governor General
Chaudhary Muhammad Ali 1955 Prime Minister
HS Suharwardy 1956-1957 Prime Minister
II Chundrigar 1957 Prime Minister
Malik Feroz Khan Noon 1957-1958 Prime Minister
Ayub Khan 1958 Military rule

Under the new Pakistani Constitution that came about in 1956 a Prime Minister was installed at the helm replacing the Governor General. This lasted only for a short time.

In a military coup, General Ayub Khan, in October 1958, started tampering with the newly ratified Constitution introducing a system of “basic democracies” that led to the banning of thousands of politicians.

In 1962, Pakistan got a new Constitution. Ayub got rid of the 1956 framework and started bringing the military into the fray of domestic politics and administration. The 1962 Constitution eroded the office of the Prime Minister and strengthened Presidential powers.

Ayub’s decade long tenure is showing its impact even three decades later today as the military continues as the most influential source of political power. Unlike liberal, democratic states where under separation of powers the executive commands the military, in Pakistan the military is the executive and at times in its history has ruled over the judiciary and the Parliament.

The next major change happened in 1973 when Bhutto came up with a new Constitution putting powers back in the hands of the Prime Minister. Once again, this Constitution could be practiced unhindered only for a short time. In 1977, Zia started tampering with the 1973 document centralizing powers in the hands of the President and the military.

In 1985, the Constitution went through a revamp—a major amendment was introduced. Presidential powers were further strengthened.

In 1997, Nawaz Sharif changed the 1985 amendment, putting powers back in the hands of the Prime Minister. This was, once again, reversed when General Musharraf introduced a Legal Framework Order (extra constitutional) in 2002 consolidating powers in the hands of the Chief Executive.

The developments since the beginning of November 2007 do not provide any constitutional context. All moves were driven and justified by one man—Musharraf. (Although, the irony is that Musharraf took the oath of Presidential office this last week under the 1973 Constitution.)

Press the Reset Button

The struggle in Pakistan, with reference to the Constitution (its formulation and practice), has been on at least three fronts—presidential vs. prime Ministerial powers, civilian vs. military primacy, and moderate civic society vs. the more conservative, religious wing.

All this has led to a disbelief in the Constitution and governance. In addition, the military is uncertain of its role in the current Pakistan. Meanwhile, lawyers and judges, the media and politicians protest hoping to see free elections. But, they could not in certain terms be hoping to see the return of law, would they? What law and based on which Constitution and whose interpretation?

I will admit that while writing the column “Ayub all over again?” on September 16, 2007 in The Magazine published by The Dawn, I was hopeful that Musharraf will choose the Jinnah way—genuinely start building institutions, energize civic society and provide a sustained period of stability. But, he chose the Ayub path instead of talking about democracy while strangulating the passage to it.

I believe the opportunity is still not lost. Following a free and fair election in January, the political class should prioritize fundamental nation building starting with the creation of a genuine Constitution that is then socialized with the masses.

The intellectual elite from different parts of society should take the lead in bringing together 200-300 representative people from across Pakistan. Ex-military officials, retired civil service personnel, academicians, journalists, and politicians should come together to introspect Pakistan and to come up with its identity.

Personalities such as Pervez Hoodbhoy (professor, Quaid-e-Azam University), Sherry Rehman (ex-journalist and PPP representative), Shaukat Aziz (ex Prime Minister and PML member) and Munir Malik (former president of the Supreme Court Bar and a Constitutional scholar) should be taking the lead to pull this effort together.

Those on the fringe including conservative, religious groups should be invited to participate. Then, the assembly members should use the 1973 Constitution as a basis and revise it such that it is relevant for today and with foresight, for decades to come.

This process will require the tacit approval of Musharraf. Perhaps, ex-military officers could pursue the newly appointed Chief of Army General Kayani, who is said to believe in civilian rule, on this front.

Constitution debating and writing is but only part of the job. It is essential that the representatives then disperse and build support within the country for the new framework.

History cautions us to look at the forthcoming elections with skepticism—at least in the sustaining ability of the outcome. Pakistan needs fundamental change, starting with new concrete that needs to be poured to solidify its foundations. The starting point has to be the creation of a new Constitution, one that can achieve legitimacy in the eyes of both the civilians and the military.

(This column was first published on www.upiasiaonline.com)