Constitutionalism — a lost sanctity

To destroy a people, you must first sever their roots. — Aleksandr Solzhenitsyn

Any religious place of worship and its holy book are revered as sacred by their followers. In much the same way, a state and its governing document 'Constitution' holds a sacrosanct place in the hearts of their citizens and constitutionalists. Just as any adulterated alteration of holy scriptures incites the fury of the faithful; likewise, any malicious amendment to the sacred document of the 'Constitution' provokes outrage in a society that firmly believes in upholding democratic principles.

The journey of constitutional process in Pakistan has been nothing short of a rollercoaster ride. From the prolonged delay in framing and adopting the first Constitution to the recurring adventurism of experimenting with the adoption of a Presidential or a Parliamentary form of government, and from the question over a Federal versus a unitary system, to the abrupt military takeovers and undemocratic overreach of power by elected civilian representatives, Pakistan's constitutional trajectory has been fraught with ambivalence.

Growing up in a household where political conversations were the main course of every table-talk, I was unknowingly familiarised with unsettling phrases like 'abrogation', 'suspension', 'reframing', and the most loathed of all, the Eighth Amendment (inserted by the then military dictator, President Ziaul Haq to strengthen his grip on power and suppress political dissent) that left an unconscious, yet profound impact on my understanding of constitutionalism.

As a political science student, I observed the Seventeenth Amendment saga (brought in by the then President, General Pervez Musharraf in collusion with so-called democratic-minded religious and political parties) with a personal interest from the comfort of my couch, viewing it as an academic learning experience. However, I remained oblivious of the gravity of its repercussions.

Years later, after spending nearly a decade in the professional arena, the passage of the 26th Constitutional Amendment (introduced in the backdrop of post-9th May political and military tug-of-war) felt like a direct punch to my face – finally making me realise the devastating impact of these calculated executive and legislative maneuvers. I find myself jolted by the ongoing tremors of this Amendment – an impact intensified by the rather unfortunate than fortunate experience of being position at the heart of it all, working on matters closely tied to its aftermath.

Simply put, Constitutional Amendments in the past by the military dictators were focused on consolidation and legitimisation of their authoritarian regimes, whilst the civilian governments concentrated in strengthening the executive branch. However, the insertion of the 26th Amendment has had the effect of targeted weakening of the judicial branch; it has virtually glued the judicial institution with the executive in blatant violation of the fundamental constitutional mandate of trichotomy of powers and independence of judiciary as enshrined in Clause (3) of Article 175 of the presently enforced 1973 Constitution.

Reflecting on my political science lectures, I am, rightly or wrongly, reminded that the Constitution not being merely a legal document but a foundational covenant between the rulers and the ruled; valued as a social contract between the State and its citizens, if that is the correct version, then who grants corridors of power the authority to unilaterally bend its clauses while expecting absolute obedience by the governed. It is an elemental legal principle that a contract loses its legitimacy when one party manipulates its terms to its advantage while disregarding the consent of the other.

With the advent of the 21st century's sophisticated standards, overt military coups becoming increasingly unpopular. In their place, a far more alarming trend of employing covert methods to dominate the ruthless game of thrones has emerged, which stems from the nations' most revered legal scripture itself. In the guise of upholding the constitutional spirit and rule of law, state actors systematically set legal machinery into motion, weaving legal frameworks into a silken trap.

They wield the axe of 'amendment' like executioners, striking down democratic norms and enclosing them in a gilded cage, all under the banner of legitimate governance. Thus, authoritarian forces are granted the licence to seize power under the illusion of constitutionality, gradually hollowing out state institutions like termites devouring the foundations of a grand structure, all while flawlessly maintaining the façade of constitutional integrity.

This wave of Constitutional adventurism leading us down the path of legal debacle and ultimate frustration compels me to question my very choice of entering the legal profession, especially as I stand witness to a judiciary that mirrors a disarmed soldier on the battlefield, a toothless prey confronted by a fierce and unrelenting executive.

The survival of a nation does not merely depend upon its military might or economic prosperity, but hinges on an unwavering commitment to the principles enshrined in its primitive framework.

The Constitution, like faith, must be honoured, protected and upheld – for once its sanctity is lost, the risk is not just the erosion of legal provisions, but the very soul of the nation itself.