This article dwells on fundamental issues defining a constitution especially in the context of Pakistan. It argues that constitution is never like a political document. At best, it is a theory of conduct both for individuals and institutions. In this sense, it is a moral document.

by Dr. Khalil Ahmad

It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.
[Robert Houghwout Jackson, Associate Justice of the U.S. Supreme Court and Chief Judge at the War-Crimes Tribunal in Nuremberg]

A constitution is never like a political document. It is not to be used, treated, implemented, exploited or manipulated politically. Nor it is for the politicians to amend or suspend it at their will or whims.

At best, a constitution is a theory of conduct both for individuals and institutions. In this sense, it is a moral document. Taking it not like this or identifying it with a political statement is fatal to the soul of any constitution.

Thus, if a constitution is manipulated, exploited, implemented, treated and used for political purposes, its moral tenor is lost. Likewise, if a constitution is amended and suspended at the least political whims, it is reduced into a political statement only. This has been the case in Pakistan.

Historically, it was in the sub-continent that Muslim and Hindu communities’ leaders could not agree on a theory of conduct to rule their people. That constitutional failure led to the making of Pakistan and India. Then, the Indians soon realized the importance of such a theory and consented to a constitution to rule their country.

In Pakistan, our leaders proved they lacked moral insight and could not reach a mutually agreed theory of conduct. They continued fighting for political interests. So much so that in 1971, chronic political fighting of individuals and institutions dashed all the hopes to reach an agreed theory of conduct to rule both the wings which resulted into the formation of another country out of Pakistan.

The Preamble to the Bangladesh Constitution reads: ‘We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic war for national independence, established the independent, sovereign People’s Republic of Bangladesh.’ This tells how strongly they differed with the leaders on this side.

The period from 1947 onward was an example of ‘constitutional’ anarchy. After about a fourth of a century and an unhappy separation of half the Pakistan, we came to have a Constitution in 1973. In this case, it was always late to mend. However, it may be termed a happy ending of a tragic drama that finally there was a theory of conduct to rule the remainder of Pakistan.

But, the ruling party that gave (West) Pakistan a Constitution, and which is always more than eager to take the credit and brag of this achievement, is the very party that disfigured the same constitution. The constitution that was adopted on April 12, 1973, from May 8, 1974 to January 4, 1977, underwent seven amendments, six by the same assembly and the seventh by the next short-lived assembly of the same party.

Sure, the credit for this constitution goes to the PPP, but it is on record that PPP did not want Pakistan ruled by a federal and parliamentary constitution. Zulfiqar Ali Bhutto always wanted a presidential system of government for Pakistan and he behaved like that while in the government. It was a matter of unwanted necessity that PPP had to go for the federal and parliamentary system because otherwise one federating unit, Baluchistan, was difficult to bring into the constitutional fold. So, it was from the very start that the constitution could not achieve the status of a moral document and a theory of conduct as well. The acts belied the intentions. The constitution proved to be a playground for the power players.

Then, there was the Army, an all powerful institution, which never subscribed to any theory of conduct whatsoever. They created a moral vacuum in the country. The greatest damage they caused to this nation is not through the suspension or partial/total abrogation of the constitution or whatever is being inscribed on the unending charge-sheet against them; it’s the destruction of moral and social values. They are the perfect immoralists.

After them, it was leaders of the political parties who used their parties as pressure groups to achieve their ulterior motives. They were the political agents of Pakistani elites who were out-and-out immoralists. They used the constitution to further their political and elitist interests. Thus, the constitution transformed into a document that served the purposes of these elites.

The third party to this crusade against the constitution was the judiciary. They were the thoroughgoing immoralists and champions of a new theory of misconduct. For them, under necessity everything could be validated. No theory of conduct or no moral codes could stop them from fulfilling the demands of the immoralists. When custodians of the constitution have gone for selling it, who is there to give a thought to the theory of conduct? The moral document was immorally brutalized by those who were supposed to protect it.

It was quite natural for a savior to emerge from this very incestuous horde. He is Iftikhar Muhammad Chaudhry, who by following his moral conscience and sticking to his constitutional oath, has shaken the foundations of Pakistan’s immoralist establishment. That is more than a knell for the immoralist elites.

It is with him that the fundamental constitutional rights of an ordinary citizen were dug up from the abandoned book of constitution and upheld. Not only the theory of conduct but the code of conduct also became a matter of everybody’s discussion. It was to purge the judiciary from this impeccable person and those who followed in his footsteps that November 3 last witnessed that brazen act of a dictator in which the highest seats of justice were dismantled in one blow. This was just shocking for otherwise tolerant people of Pakistan.

That how the awakening of a single soul got the legal fraternity up in arms and a “directionless” civil society up in rage needs no proof. The movement continues with renewed vigor. There was a moment of respite after the February 18 elections. That the Bhurban Declaration was a ploy to break the momentum of this moralist movement is not doubtful. But it did not succeed in that. Conversely, it has strengthened the movement. The moral conscience of the Pakistani society has come to be alive.

As the future Pakistani historian will have repeatedly to come back to the person of Iftikhar Muhammad Chaudhry to delineate the dynamics of this moralist movement, so are we at this moment. It is such a miracle that his person has transformed into a Midas, the fabled king of Phrygia whom gods endowed with the power of turning every thing to gold with a mere touch. The same is happening in Pakistan. Whoever touches him turns to gold, and who denies him turns to ashes.

The results of February 18 elections demonstrated that well. PML (N) was nowhere on the election scene, but it is the second major victor sweeping in the majority province. That, other political parties did not make the restoration of the deposed judges an election issue does not mean their voters did not want the deposed judiciary restored. The evidence is available from the Chief Justice Iftikhar Muhammad Chaudhry’s country-wide travels to address the bar associations in various cities. People flocked in to his historic cavalcades.

That, under the circumstances the arch political rivals, PML (N) and PPP, formed a coalition government needs to be judged in the constitutional context only. There is little to celebrate in it. This coalition is not an end in-itself. Thus, what matters is whether it strengthens the constitution or weakens it as a moral statement. If the coalition breaks down, there is little to cry on. They were trashing the constitution into political trivialities.

Now, as the moralist movement has entered a crucial phase where all the political parties are expected to exhaust their possibilities both positive and negative, the constitution of Pakistan is set to emerge as a moral document embodying a theory of conduct for all individuals and institutions strictly to follow. The supremacy of the constitution and not of the parliament, independence of the judiciary, rule of law and security of fundamental rights to every citizen are guideposts to this movement.

That the conduct of political parties is going to decide the fate of this movement is a misreading. It is for them to realize that it is this moralist movement which is going to decide their fate. They will have to take to the constitution as a moral document to compass their sense of direction. Their politics should have to be subservient to the theory of conduct the constitution represents. The last three decades, especially, of trampling the constitution by the civilian or military usurpers prove that politics without a theory of conduct and without a moral code is worse than robbery and murder, and more than what is being condoned under the National Reconciliation Ordinance. Hence, in order to prove their worth, political parties must check with their political sense of direction. Otherwise, they are in a moral vacuum and will strengthen the cause of the immoralists.

This article appeared in The Post on May 23, 2008.