Business Recorder Column April 10, 2017

Constitution Day Rashed Rahman A Constitution both sets out the rules governing the affairs of a state as well as encompasses the compact or social contract between the state and its citizens. The 1973 Constitution is being celebrated under the rubric of Constitution Day in Pakistan these days. Forty-four years after the promulgation of the 1973 Constitution, a look back at the project of agreeing a Constitution in our history presents a cautionary tale. For nine long years after Pakistan came into existence in 1947, the political class represented in the Constituent Assembly manufactured out of the pre-independence elected representatives of the areas that came to constitute the new state (including some whose constituencies were left behind in India after Partition) wrestled with the task of framing the basic law of the new state. The debate and arguments used as their foundation the British colonial Government of India Act 1935’s structure, but from that point on, there were as many points of view as protagonists. The religious parties that had opposed the idea of a separate state of Pakistan to be carved out of pre-Partition India now insisted that the new state should be fashioned on the lines of an Islamic state, and that too according to their interpretations, in contradiction with Quaid-e-Azam Mohammad Ali Jinnah’s speech of August 11, 1947 to the Constituent Assembly in which he declared that religion had nothing to do with the business of the state. After the death of Mr Jinnah, his successor and Pakistan’s first prime minister Liaquat Ali Khan succumbed to the pressure of the religious parties to include the Objectives Resolution in the preamble of the draft Constitution in 1949, thereby opening the door to the location of religion at the heart of Pakistan’s state philosophy. Despite later changes, for example military dictator Ziaul Haq’s making the Objectives Resolution a substantive part of the Constitution, the debate refuses to die down, especially since the state’s narrative today is heavily loaded in the direction of religion as the legitimizing principle of the state. The movement for Pakistan in pre-Partition India revolved around the rights of the large Muslim community, provincial autonomy and an independent India that would safeguard the interests of undivided India’s religious and ethnic diversity. When the Congress Party failed to show the large heartedness and generosity required to resolve these contentious issues to the satisfaction of the minorities, especially Muslims, all formulae to prevent Partition withered on the vine, including the Cabinet Mission proposals of 1946. Although Partition became inevitable then, the haste suddenly acquired by the British colonialists to quit India led to the chaos, communal massacres and exodus both ways of the greatest migration in human history, leaving a trail of blood and bitterness in its wake that has ever since roiled Pakistan-India relations. Apart from the religious lobby’s considerations, the political class debating the new Constitution between 1947 and 1956 was seized of the issue of the structure of the new state. Federalism was a central plank of the Pakistan movement but after independence, this principle was held hostage by undemocratic stances. Admittedly, the new state presented some knotty problems. For one, the western and eastern wings of the country were physically separated by about 1,000 miles of hostile Indian territory. East Pakistan had a majority of the population of Pakistan and on the basis of the democratic principle of one man one vote, should have been accorded a concomitant majority of seats in parliament. However, the post-colonial state and its dominant institutions the military and bureaucracy, with support from vested interest politicians from West Pakistan, wished to deny East Pakistan a ‘permanent’ majority that would militate against their grip on power. Thus the 1956 Constitution abolished the historically received provinces of West Pakistan by merging them into One Unit, and depreciated East Pakistan’s representation through the device of ‘parity’, i.e. according the two wings, with unequal populations, an equal number of seats in parliament. Naturally this construct worked in favour of the western wing and the powerful state institutions backing this scheme. However, it had two profound consequences. One, it alienated the people of the smaller provinces of the west wing, provoking rebellions in Balochistan (armed), Sindh and Khyber Pakhtunkhwa (political). Apart from parity, East Pakistan was incrementally alienated by the extraction of economic surpluses from it to favour West Pakistan’s development as well as the perception after the 1965 war with India that the eastern wing could not be sanguine about its defence. In the two years the 1956 Constitution remained in existence, governments (about 11) fell every other day like nine pins until the 1958 military coup by General Ayub Khan abrogated the Constitution. Ayub’s coup further aggravated the political divide and grievances of the smaller provinces subsumed in One Unit in the west wing and the alienation of the eastern wing. Ayub’s 1962 Constitution was a radically different kettle of fish. It brought in an executive presidency elected by a new electoral college called Basic Democrats, who proved to be a malleable lot. That edifice collapsed in the face of the 1968-69 movement against the Ayub dictatorship, ushering in a seemingly more conciliatory Yahya military regime that undid One Unit and restored one man one vote for the forthcoming 1970 elections. Those decisions brought to the fore all the pent-up grievances in both wings, leading to the divide being reflected in the electoral results that gave Sheikh Mujibur Rehman’s Awami League a majority culled entirely from East Pakistan. The Yahya regime went back on its own commitments, refused to call a session of the National Assembly that would have anointed Sheikh Mujib as the prime minister, and launched a bloody military repression in East Pakistan. The rest, as they say, is history. It is in this backdrop that the Bhutto regime first tried to pick up the pieces of a broken, defeated country by winning over the opposition regarding the state’s constitutional construct. However, as soon as he had consolidated his power, Bhutto turned on the opposition as well as the Left inside his own party and government. The ‘consensus’ 1973 Constitution did not carry the imprimatur of one federating unit. Balochistan’s elected leadership refused to endorse the Constitution over dissatisfaction with its provincial autonomy provisions. They were rewarded with dismissal of the Sardar Ataullah government in Balochistan in February 1973, and with the wholesale arrest of the Baloch leadership the day after the promulgation of the constitution on August 14, 1973 by suspending fundamental rights. These rights remained suspended throughout the Bhutto regime and its successor Zia dictatorship. Since 1988, there has been a steady and incremental expansion of the democratic space in a country afflicted with military regimes for almost half its existence. Although the Musharraf military coup of 1999 was an aberration, he had to maintain the façade of democracy to maintain his hold on power. After democracy was restored in 2008, amendments to the Constitution present a mixed picture. Whereas the 18th amendment made major strides in the direction of enhanced provincial autonomy, it failed to undo some of the most controversial amendments of the past. Throughout its existence, the provisions of the 1973 Constitution related to political, economic and social rights of the people continue to be practiced more in the breach. This reflects the truth that democracy by itself does not deliver anything. It is the enabling construct that facilitates moving state and society in the direction of according the people their rights. For that, strong and effective political movements are required to ring in the required changes. At present, this seems like a far fetched dream. However, the dialectic of history is quietly at work. Sooner or later, the present order and its certainties can be, in fact will be, challenged. rashed.rahman1@gmail.com rashed-rahman.blogspot.com