Defending the constitution

Perhaps Pakistan is the only country in the world which has had to formulate four constitutions neither of which were abided by. There was nothing wrong with the 1956 version under which the country was declared a republic. Even the most complex issue of population parity was settled between the two wings of the country. Iskander Mirza was the last Governor-General and the first President of the new democratic dispensation. Elections were scheduled for October 1958 but instead through ‘Palace Intrigue’ Pakistan came under the boots. The document was abrogated and he declared himself to be the ‘savior’ and assumed the title of Field Marshal and President.
In March of 1969, he was forced to resign and even then, he did not follow his own document and handed power to army Chief, Agha Muhammad Yahya Khan, who abrogated the constitution and replaced it with the Legal Framework Order (LFO). The 1972 version was prepared to lift the martial law and Bhutto took the oath as President. A new era of democracy was ushered in.
A lot of effort went into the preparation of the 1973 constitution. Originally, Bhutto wanted a presidential form of government but for the sake of consensus he compromised for a parliamentary system. Not much material is available about this constitution which was approved by the elected parliament on April 10 and rectified on August 14, 1973, after which Pakistan was declared the ‘Islamic Republic of Pakistan’.
Article 6 of the constitution under the title of ‘High Treason’ states, “Any person who abrogates or subverts or suspends or holds in abeyance or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason”.
Article 8 reads, “Laws inconsistent with or in derogation of fundamental human rights to be void”.
Despite such clauses, there have been blatant violations of the constitution—essentially an agreement between the rulers and ruled—that remain unpunished. Ayub Khan annihilated the 1956 version and imposed his own document against the will of the people. His exploits were tolerated for nine long years but after a massive celebration called the ‘Decade of Progress’, the bubble burst. Street protests started all over the country but for the vast majority, it was declared as ‘progress’. His handpicked successor Agha Muhammad Khan hounded the 1962 document which led to the 1972 version, a make shift arrangement, which was then replaced with the 1973 permanent enactment.
General Zia did not approve of the constitution. In his own words, “The constitution is just a few pages of paper that I can trash at will.” He wanted to create a supra-constitutional body to dictate his whims. After failing to get his way, he decided to disfigure the document. After his demise in August 1988, there was a sigh of relief. The constitution that he wanted to trash outlived him. He was replaced by the Chairman of the Senate, Ghulam Ishaq Khan, who then held national elections. This should have marked the end of Zia’s ‘dark ages’ but unfortunately it did not.
Musharraf had a strange approach towards the constitution. In his own words, “Cannot defend the constitution at the cost of the state.” Little did he know that no state can survive or function without a constitution. Every passing-out cadet of the Military Academy and the graduating batch of the Civil Services Academy take an oath to defend the constitution of the Islamic Republic of Pakistan. Now that I have a chance to interact with the retired custodians of the state, I have individually inquired from them about the document of their oath which most of them have never touched or read. They just follow the orders of their superiors with no consideration of the constitutional parameters or requirements they are required to defend and uphold. It is appropriate that each one of them should be given a copy of the document and then submit a written undertaking that they have read and understood its contents.
Pakistan’s constitution was unanimously passed by genuinely elected representatives of the people yet it has been repeatedly attacked and disfigured. Justice Yaqoob Ali Khan, former Chief Justice of Pakistan, came up with an effective approach. In his words, “First disarm and then punish the usurpers under the law.” This doctrine worked well in the case of Musharraf who was tried and convicted under Article 6 of the constitution. He had to flee the country to save himself. We have to learn to defend our constitution which ensures the safety and integrity of the federation. Any misadventure or hounding must be effectively dealt with. The Doctrine of Necessity is long dead, has been buried and is fossilised for all times to come. Pakistan is a constitutional democracy like the USA. It is time to uphold and defend it.

The writer is Ex-Chairman Pakistan Science Foundation, email:

ePaper - Nawaiwaqt