The self-styled guardians of the Constitution

Who would guard the guardians?

The President has proposed an election date in disregard of the Law Ministry’s opinion. He is bound to seek his prime minister’s opinion, no matter how much he abhors him. But, he has more than once preferred not to seek his prime minister’s consent. President Alvi is not the lone defender of the Constitution. There is a long queue.

Foreigner Chief Justice Umar Ata Bandial also “defended” the Constitution tooth and nail, so to say. But, “the litigants entangled him in political cases”. He willy-nilly heard the cases, leaving behind a backlog of about 55,000 non- political cases (not his fault!).

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His critics say that he had an ebullient affinity for hearing political cases and showering favours on his “sadiq-o-ameen“Good to see you, best of luck”

Our Constitution vests authority or power in elected representatives.  The institutions should abide by the Separation of Powers (Montesquieu). But, in practice, it is Jean Bodin’s Theory of Power that is at play in our country. The real power vests in the one who has power to “coerce”. Jean Bodin’s dictum `majesta est summa in civas ac subditos legibusque salute potestas, that is ‘highest power over citizens and subjects is unrestrained by law’ (Roedad Khan, Pakistan: A Dream Gone Sour). Even a civilian could be a martial-law administrator.

There is a Latin adage, quis custodiet ipsos custodes?, who will guard the guardians? The phrase epitomises Socrates’ search for guardians who can hold power to account. Power corrupts and absolute power tends to corrupt absolutely.

While entertaining the political cases Bandial did not care a fig about what Justice Muneer said shortly before pronouncing his verdict on the notorious Dosso case _ ‘when politics enters the portals of Justice, democracy, its cherished inmate, walks out by the backdoor’ (Roedad Khan, Pakistan: A Dream gone sour, p. 175).

History teems with guardian luminaries who harboured supra-constitutional hallucinations. Alas! Bhutto also was a pseudo-guardian, contemptuous of the Constitution. Bhutto’s disdain of people is well illustrated in M. Asghar Khan’s book We’ve Learned Nothing from HistoryPakistan: Politics and Military Power: `Zulfiqar Ali Bhutto …told me[Asghar] that he was sure that if I joined hands with Him…We can then rule together’. The people are stupid and I know how to fool them.  I will have the danda (stick) in my hand and no one will be able to remove us for twenty years” (ibid. p. 60).

The courts are guards over brute power and authority of the guardians (government). But, their discretion is not limitless. The `institutional boundaries ‘in the golden words of our constitution are crystal clear. But, ‘blurred’ in minds of purblind players: ruling bureaucrats, judges, and praetorians.

Zia had nothing but contempt for the Constitution and democratic norms (ibid. p.87). While addressing a press conference in Tehran, he said, “What is the Constitution?” “It is a booklet with ten or twelve pages.  I can tear them up and say that from tomorrow we shall live under a different system (ibid. pp. 87-88).” Dicey said, “No Constitution can be absolutely safe from a Revolution or a coup d’etat”. Julius Caesar and Napoleon also harboured extra-constitutional thoughts.  Napoleon told Moreau de Lyonne, “The constitution, what is it but a heap of ruins. Has it not been successively the sport of every party?” “Has not every kind of tyranny been committed in its name since the day of its establishment?” During his self-crowning in 1804, Napoleon said, “What is the throne, a bit of wood gilded and covered with velvet?  I am the state. I alone am here, the representative of the people”.

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Former Finance Secretary Saeed Ahmed Qureshi in his book Governance Deficit: A Case Study of Pakistan (p.56) points out that our constitutional evolution had an uneasy start with preponderance to personalities over institutions. `The Federal Cabinet, in its proceedings on the 30 December 1947 decided `In the event of any difference of opinion between the Cabinet and Quaid-e-Azam, the latter’s decision should be final’ . The writer adds ‘one could understand the `trajectory of his role as “the sole spokesman” of Pakistan movement, But it suffered from some haunting institutional weaknesses’: (a) being `hinged on personalities rather than institutions’, (b) `it legitimized extra-constitutional authority’, (c)`it imparted a vice-regal character to a democratic set-up’ Qureshi goes on to recount `Eight blows to the Constitutional System’ including dissolution  of the Constituent Assembly, dismissal of elected prime ministers, induction of General Ayub Khan as defence minister on  October 24,  1954, imposition of martial or quasi-martial law `for 33 out of Pakistan’s 68 years of history’.

Theoretically, the people hold ‘power’ to account. But the ‘people’ are an amorphous lot without a legal identity like an institution, except as ‘voter’ during elections, usually not fair. Noam Chomsky called even American people a “bewildered herd”. Elected representatives (power) should exercise their authority within the bounds of our constitution.

The courts are guards over brute power and authority of the guardians (government). But, their discretion is not limitless. The `institutional boundaries ‘in the golden words of our constitution are crystal clear. But, ‘blurred’ in minds of purblind players: ruling bureaucrats, judges, and praetorians.

Amjed Jaaved
Amjed Jaaved
The writer is a freelance journalist, has served in the Pakistan government for 39 years and holds degrees in economics, business administration, and law. He can be reached at [email protected]


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