Why we need to respect the constitution
Every now and then there is a wave of articles proposing that it is more important to save the state rather than democracy or a particular government. I don’t know on what bases these appeals are made because either these writers are not aware about what a state is and its relation with a government or they are willfully misleading people. Let us try to address this question of state and the pillars on which it is erected. This will enable us to decide whether these calls for saving the state by disrupting an elected government are justified or not.
Modern democratic state is erected on three constitutional pillars which are legislature, executive and judiciary. Out of these three two, that is legislature and executive, are created by direct participation of people or in other words they are the agents of sovereign which is the collective body of the people. This means that a strong state is one in which right of the sovereign to appoint agents is exercised through a free and fair elections. And the elected parliamentarians and executive are able to maintain this mandate by delivering on the promises made during the election campaign. Failure to serve results in petitions to the judiciary or impeachment/no-confidence which is a constitutional way of removing a non-performing agent. A government that is weak, for any reason, ultimately results in weakening of the state because these are inseparable ideas. State represents the collective conscience and aspirations of the people while government is the organ through which these ideas are converted into tangible reality.
Now let us look at how the constitution of Pakistan defines a state. According to article 7, the state means the federal government, parliament, a provincial government, a provincial assembly and such local or other authorities as are by law empowered to impose tax or cess. From this perspective when respected opinion writers call upon establishment to save state rather than the government they are surely not aware of how constitution of Pakistan defines a state because saving a state would mean protecting the parliament and elected governments. By overthrowing an elected government to install a technocratic government or any other formulation thereof would mean violation of state as per Article 7 of the Constitution of Pakistan.
Here I am not proposing that the constitution of 1973 truly represents a social contract that can build a stronger nation or that political parties are properly organised to offer good leadership. But as long as a constitution is in force it has to be respected while at the same time efforts should continue to improve it. I will try to shed light on some articles that are creating hurdles in evolution of Pakistan as a stronger and prosperous nation.
There is an anomaly in the preamble of the constitution. In the preamble it states that ‘the State shall exercise its powers and authority through the chosen representatives of the people….’ Here it uses the word chosen rather than elected. This anomaly has to be removed because word chosen is not normally used for elected officials as in this case referendum of General Zia-ul-Haq and General Musharraf become constitutionally acceptable.
The constitution of 1973 does not clearly define that the temporal sovereignty belongs to the people of Pakistan although it does outline in detail the rights of individual citizen. It only mentions briefly in the preamble that sovereignty belongs to the people of Pakistan. This needs to change and the constitution should clearly stipulate that sovereignty belongs to the citizens of Pakistan and that in their collective interest a state is erected. This was the basic foundation of the Two-Nation Theory as well on which movement for independence was built.
Article 1 states that ‘Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan.’ Article 2 makes it even clearer: ‘Islam shall be the State religion of Pakistan.’ These articles suggest that the state is a living being or organ with a religion. This is a Western concept rather than Islamic. In Western model organisations, both commercial, public and charitable, are considered living entities in themselves and have rights and obligations. It is for this reason a consumer or state has the right to file a lawsuit against an organisation. There are separate procedures for contesting lawsuits between individuals and corporations.
Islamic concept is that humans are individually responsible for all their actions whether they are acting in their singular capacity or as managers of an entity. In the Islamic model when a person reaches to the position of a CEO or president or management, he/she assumes the fiduciary responsibility for any omissions and errors that are accrued. An organisation can provide legal and other resources to the management to fight any litigation as part of the employment agreement so that no injustice is done to them. But organisation in itself has no legal rights or obligations rather these reside in the management structure of it. It is for this reason the caliphs had no immunity from prosecution during their tenure and were frequently called by the Qazi to the court for questioning. In the light of above discussion, a better representation of Article 1 and 2 should be combined to say that Pakistan shall be a Federal Republic that represents the moral and social values practised by its majority constituents adhering to Islamic faith, hereinafter referred to as Pakistan.
There are many other articles that needs serious review. The constitution of 1973 has held the nation together for 42 years but it does require some serious reconsideration to offer a social contract that better represents the wishes of the founding fathers, Allama Iqbal and Quaid-e-Azam, that wanted Pakistan to be a modern day Medina. It has to properly recognise the sovereignty of all its citizens regardless of their religious persuasion and it has to truly represent the social and moral values of Islam.