Life of the Constitution?

AN effort to rush through a constitutional amendment was barely kept at bay, but statements from the ruling regime indicate that another attempt is likely within the next few weeks.
As of now, the JUI-F’s reluctance remains the thin obstacle preventing an overhaul of constitutional provisions related to the selection of judges, the status of the chief justice, and the very structure of the higher judiciary.
Though muted compared to 2005-7, most of the legal community stands against the amendment, citing them as detrimental to judicial independence. While the concern remains valid, there is an even more fundamental aspect at risk here: the life of Pakistan’s Constitution appears more uncertain now than at any point since 1973.

At first glance, this may sound hyperbolic given how the Constitution was mutilated by military dictators twice over the past 50 years. On both occasions, its basic political structure — a federal, parliamentary democracy — was undermined for greater centralisation through the office of the presidency and for the denial of political rights to the provinces.
Yet it proved to be resilient enough to regain its original essence through a reversion or modification of form. The last episode of resilience took place in the aftermath of the Musharraf regime, with the passage of the 18th Constitutional Amendment that cemented parliamentary federalism as a governing principle.
Why then would this constitutional amendment, which on the surface touches neither parliament nor federalism, signify its death knell? The answer lies in the two broader trends at work in the backdrop of this latest effort: the first is the consistent subjugation of parliament by the executive since at least 2018; and secondly, since 2022, how this is being done through the political parties that were the main custodians of the 1973 constitutional settlement.
Playing second-fiddle to the executive is nothing new for Pakistan’s parliament. The colonial-era genes of the Pakistani state drive centralisation and authoritarianism, rather than deliberative democracy. In the past, the usual process of subjugating parliament involved gaining judicial approval for ad hoc PCOs and LFOs that mutilated the Constitution, followed by sham elections that turned the Assembly into a rubber-stamping body.
What’s new, thanks to the workings of hybrid regimes of the past few years, is how parliamentary processes have been cajoled and coerced within the existing constitutional order. Mid-ranking officers coordinate Assembly activity and act as the government’s chief whip. Drafts of key legislation are prepared and vetted not in parliamentary committees or even the civil secretariat, but in some office in Rawalpindi.
The executive — mainly the military establishment — now possesses the capacity to subjugate parliament without resorting to any wall climbing, or sanctifying legal acrobatics from an (occasionally reluctant) judiciary.

The net result is repeated abdications of civilian rule via the conjuring of laws undermining parliamentary oversight, increasing securitisation and surveillance (military courts and Peca), granting arbitrary extensions (Bajwa’s second stint) and opaquely transferring resources to the military establishment (SIFC). In its last 15 days, the previous Assembly rushed through 25 pieces of legislation, many with far-reaching consequences. Accustomed to being a handmaiden of the executive, parliament now appears enslaved.
Any defence of the proposed constitutional amendment based on notions of parliamentary supremacy over the judiciary misses the point, either wilfully or in ignorance.
In the current context, no such intervention makes the judiciary accountable to parliament. This may be a worthy goal in the abstract given Pakistan’s sordid history of judicial overreach, but in today’s reality it only achieves judicial compliance towards the executive via a subservient parliament.
And the driving force is not lofty ideas of parliamentary oversight, but the crasser and contingent necessity of keeping the PTI out of power and Imran Khan under incarceration.
Subjugated parliaments were temporarily freed in the past, thanks to the efforts of those political parties invested in the 1973 Constitution. But the current scenario poses a qualitatively different danger. Those who previously did politics on the sanctity of federal parliamentary democracy are the ones bulldozing the parliamentary part of it, in service of extending their tenure in government. The road back to resuscitating parliament from here is going to be nearly impossible, given the khaki patterns of control being exercised and the nature of laws recently passed.
There is another aspect that makes the current moment distinctive. In the past few decades, the PPP and (to a lesser extent) PML-N paid homage to parliamentary supremacy from the vantage point of being the popular opposition to military or hybrid regimes. In practice, this allowed them to generate electoral and societal acceptance for the 1973 constitutional order, especially before they stepped into government.

In contrast, the biggest oppositional force today, the one that commands the most popular legitimacy, the one that stands to benefit from a parliament based on free and fair elections, and advocates for reduced interference of the military, has rarely hidden its indifference to the 1973 Constitution.
At various points in the recent past, the PTI has advocated for greater centralisation, for a revision of federal finances, for technocracy, and for presidentialism. Its last manifesto proposed direct elections for the Prime Minister’s Office, a straightforward mechanism to free executive rule from parliament.
Therefore, the road ahead can go in one of two directions. Either by some change of heart the PTI embraces the federal parliamentary essence of the 1973 Constitution and modifies its longstanding position on what it thinks the state should look like. Or, once back in power, it crafts a new constitutional order on the back of its popularity; one that reflects its ideas and corresponds to its own brand of politics. And if and when that happens, the other two parties will cry foul but without a leg to stand on, having undermined the constitutional essence they previously built their politics around. n
The writer teaches sociology at Lums.
X: @umairjav
Published in Dawn, September 30th, 2024