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Default Present at the creation - Roedad Khan

Thursday, April 08, 2010

Present at the creation

Roedad Khan

Addressing a large gathering at Garhi Khuda Bux on April 4, President Zardari said, “The 18th Amendment would ensure that no dictator could trample the Constitution again”. It has a ring of déjà vu to it.

On Oct 9, 1972, in the backdrop of a bloody civil war that resulted in the dismemberment of the country, a constitution committee met in Islamabad to prepare the draft of a permanent constitution for Pakistan. I was lucky enough to have witnessed the passing of the Constitution Bill and the emergence of the 1973 Constitution in the National Assembly. It was a momentous event in the chequered history of our country and I was not going to miss it.

As the people’s representatives, elected directly for the first time by adult franchise, the members of the committee strived to arrive at a constitutional arrangement which would preclude any recurrence of past failures. The draft of the Constitution, the committee hoped, would do away with the dichotomy between the fiction and reality of executive authority. The committee provided what it thought to be effective deterrents against any attempt to abrogate or subvert the constitution, declaring it to be high treason offence.

I still remember Mr Pirzada thanking the Speaker for conceding the floor to him and his words still ring in my ears. “Mr President, sir, first time in the history of Pakistan of 25 years, tragic history of Pakistan, tragic constitutional history of Pakistan, for the first time we are not only on the threshold of giving a constitution through the most recognised and cherished democratic process but we are almost over that threshold…”

Mr Bhutto, who followed Mr Pirzada said, “I hope that after a long and tortuous road we have reached a stage in our life which can be regarded as a culmination. For a long time we have not been able to find basic solution to many problems that affect the country. Again and again, the issues have been opened and reopened with greater anger and with greater bitterness. Among these problems the answer to the constitutional problems of Pakistan can be regarded as the most important. After 25 years we have, after many disputes and quarrels, come to a point where we can say that we have a fundamental law; we have a constitution and nobody can deny that this constitution does represent the will of the people of Pakistan; nobody can deny that this constitution is a democratic constitution by any definition of democracy; nobody can deny that it is a federal constitution; nobody can deny that there is settlement over the quantum of autonomy, and thank God for that; nobody can deny that it is an Islamic constitution; It contains more Islamic provisions than any of the past constitutions of Pakistan as well as any of the other constitutions of Muslim countries other than the monarchist Muslim countries.

“To the young law minister, I would say that he has done great service to Pakistan and it is a good fortune of history that on his young and able shoulders fell the task of giving Pakistan a constitution, of piloting the Constitution Bill. This is not a privilege which can be easily had in our circumstances in the conditions of Pakistan. He has worked with great zeal and with untiring devotion. He has been in touch with the opposition leaders at all times. He has kept his mind open. He has acted with dexterity, with finesse, with nimbleness and he has amply demonstrated great qualities of a legal mind, of a political mind.

“I have continued my speech longer than I thought it would be, but I would finish with only one note which is: is this constitution a viable constitution? Its viability lies in the hands of the people, its viability lies in the consciousness of the people, its viability lies in our understanding of our conditions. If we take stock of the situation, if we learn from what had happened in the past, if we do not repeat the tragic errors that we have made in the days not so long ago, if we pause to think and consider what a certain action will contain and what will be the consequences and repercussions of certain acts either made out of lack of knowledge or out of sheer ambition or greed, then I believe that this document will stand the test of time. But if we think that it can be cast aside and that there are simple solutions and all that one has to do is to sit on a white charger with sword in hand and settle problems with its flash, in that case the tragedy of the greatest magnitude will befall Pakistan. Therefore, this document is in the vault of the people, the people hold the key to its viability. No country has had to face as much of constitutional experiences and troubles as Pakistan — we would now consider this document to be a fundamental law worthy of respect of the whole nation and that the whole nation now and the generations following it will protect it with their blood and with their lives.”

That day I felt like I had a future. Pakistan was back on the rails, or so I thought. Disillusion was soon to set in.

It is unfortunate that Mr Bhutto violated the sanctity of the Constitution and the constitutional accord by a series of unilateral amendments in the Constitution in the teeth of opposition from his political opponents. In the process, he destroyed the delicate political compromise which formed the basis of the 1973 Constitution, weakened his position and exposed himself to vicious attacks. Ultimately, he was overtaken by the forces he thought he had neutralised and had in fact re-empowered.

Constitution-making is a hazardous business in Pakistan. On the eve the 1973 Constitution was passed, Mr Bhutto said: “Today we have passed through the dark tunnel, and I see the golden bridge.” Tragically, what he saw was not the golden bridge but an optical illusion and a mirage. On April 4, 1979, Zulfikar Ali Bhutto, the prime minister of Pakistan and the architect of the 1973 Constitution, was taken to the gallows on a stretcher and hanged.

A written constitution makes sense only if people genuinely believe in its sanctity and supremacy and are prepared to protect and defend it. It makes no sense if people withdraw their support of the Supreme Court, the guardian of the constitution and are not prepared to defend it. A written constitution makes no sense if what it says is one thing and what actually happens in practice is another. It makes no sense if citizens allow it to be periodically abrogated, suspended or held in abeyance by people who have sworn to defend and uphold it. It makes no sense if it is treated as a parchment of dried leaves and torn to pieces whenever it suits the rulers. If that is how we are going to treat our written constitution, why have a written constitution at all? Whither, then, are we tending?

The Supreme Court should be the barrier that protects the citizens from the winds of evil and tyranny. If we permit it to be desecrated or demeaned, and it crumbles, who will be able to stand in the winds that follow? Obviously we have learned nothing from history. Isn’t it a great tragedy that today the democratically elected government has virtually declared war on the Supreme Court and is determined to defy it? This is the challenge that all of us now face. Every citizen of Pakistan must search his soul and decide where he stands. It has been rightly said that those who do evil are bad, but good men who do nothing to oppose it are equally so.

The writer is a former federal secretary.

Email: roedad@comsats.net.pk
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