It was fortunate that by the time the British Crown assumed the direct control of India in 1858, the Great Britain had scaled a larger part of her journey into constitutionalism. In fact, Britain was considered foremost among the nations of Europe as far as broader features of governance were concerned. The very proclamation of British Raj assured Indian subjects that British rule over India would enshrine the rule of law. It would be based on the principles of natural justice. It was a propitious departure from the arbitrary rule under the local rulers and native monarchs. Already, the British parliament had debated Indian Criminal Code in 1856 which to be promulgated in 1860. Indian Penal Code, encompassing codified laws, was a leap forward from the Napoleonic Code in terms of juristic evolution as it ensured the due process of law and progressive punishments.
It is correct that the British rulers in India dropped the reformist agenda pursued during the first half of the 19th century but then constitutionalism is about the maintenance of status quo where the pace of change is measured, structured and procedural. It was the bare skeleton outline of constitutionalism that ushered in administrative features, which were to transpire subsequently into political structures of 20th century India. Indian National Congress espoused constitutionalism and so did All India Muslim League. Indian national liberation movement was founded by people like Gokhale, Tilak, Banerjee, Moti Lal and Jinnah, all steeped in constitutionalism.
Indian politics, during the years after the World War I, might have been punctuated with periods of violence, it largely followed a constitutional approach. Whether it was Simon Commission or Round Table Conferences, Communal award or the Government of India Act 1935, the ruler and the ruled both followed constitutional approach. Government of India Act of 1935 furnished the lego-political framework for constitutionalism in post-independence India. The Muslim League demand for the partition of India in 1940 conformed to constitutionalism in principle, yet contained the seeds of deviation from republican narrative in that it differentiated among the citizens on the basis of faith, which was liable to personal interpretation instead of transparent public reason.
The Objectives Resolution passed by the Constituent Assembly in January 1947 laid down the foundation of constitutionalism in independent India. The speech made by Quaid-e-Azam Muhammad Ali Jinnah on 11th August 1947 in the Constituent Assembly of Pakistan was a statesman-like effort to herald a constitutional approach in Pakistan. However, the preceding years had sown the seeds of a narrative that would later seriously jeopardize constitutionalism in Pakistan. Jinnah was opposed, both by entrenched state machinery and the obscrutinist clergy. An attempt was made to censor his speech and Shabbir Usmani rebutted the founder of the nation point by point. The response from the political leadership and general public lacked enthusiasm.
The Objectives Resolution passed on March 12th 1949, after the death of the founder of the nation signified the rise of a parallel narrative that could undermine constitutionalism because it conflated the sovereignty of the people with that of a nebulous divinity.
Constitutionalism is essentially a clearly laid down framework for the assumption, exercise and transfer of power. Here the will of the people had been pawned to the convenience of parochial interests. The very fact that Pakistan faltered in adopting its constitution for nearly a decade showed that the shenanigans of political leadership were being mirrored in a clergy which aspired to undermine constitutionalism for its own ultimate power based upon arbitrary rule by edict.
In October 1958, came the first of the military interregna. Martial law is a form of government diametrically opposed to constitutionalism. Wavering political commitment to constitutionalism provided the military usurpers with the chink in the body politic of Pakistan and the adhesive malaise refuses to go away. Pakistan had to wait till 1973 before it could adopt a constitution which enjoyed the semblance of a consensus among the political leadership. The 1973 Constitution was at best a fragile compromise between two different political narratives, bequeathed by Jinnah and Liaqat Ali. Two military regimes that befell Pakistan after the adoption of the 1973 Constitution did not dare to scrape the constitution but made strenuously efforts to mutilate the constitutionalist character of the social contract.
Two factors should be taken into account at this juncture. First was the introduction of a state ideology in 1960s, which was essentially to wed the state with a peculiar political narrative; thus furnishing unjust weightage to hand-picked political stake-holders. It was a defining departure from constitutionalism and the democratic leadership decided to play footsie with populism instead of challenging this travesty squarely. Second, the state of Pakistan decided to forward its assumed geostrategic interests through non-state actors and found compliant (and ambitious) allies among the very forces that wanted to uproot constitutionalism through a homespun version of revolutionary approach; garbed in religious jargon. The emerging forces of Islamist jihad not only perforated the geographic borders of Pakistan, they also undermined the social fabric and constitutional structures of the nation. The introduction of religious penal provisions under successive regimes hugely damaged the rule of law based upon the principle of defined interpretation. While the authority is ostensibly limited by the scripture, the liberty to interpret scripture practically turns it into arbitrary rule by the edict of the clergy. Further, the debate about Grund Norm, initiated by the incorporation of Article 2-A as a substantive part of the Constitution opened the barn gate for an equivocal approach to the constitutional scheme. As things are, Pakistan lives under the cloud of a lop-sided debate between strict constitutionalism and thinly disguised theocracy.
The Charter of Democracy, signed by two major political parties in 2006, was a step forward towards the consensus on constitutionalism among the political leadership and a significant number of political parties have since extended their tacit consent to the primary postulates of this document through their participation in the adoption of 18th Constitutional Amendment. However, the waters of political discourse have been muddied for too long and the existential threat of terrorism has further jeopardized the prospects of constitutionalism in Pakistan. Pakistan stands at a crossroads. If the ruling elite can muster the courage to stand up to detractors of constitutionalism, the road ahead promises democracy and its ancillary dividends. On the contrary, if the political leadership caves in to the contingencies of populism, what’s at stake in Pakistan extends far more than just an academic debate of jurist character.
[Mr. Wajahat Masood is renowned intellectual and columnist]