The Essentials of a Constitution ‘Vision’, Karachi, May 1955

On the 24th of October, 1954, the Governor-General of Pakistan issued the following proclamation:

“The Governor-General having considered the political crisis, with which the country is faced, has, with regret, come to the conclusion at the constitutional machinery has broken down. He, therefore, has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function.

The ultimate authority vests in the people who will decide all issues including constitutional issues through their representatives to be elected afresh. Elections will be held, the administration of the country will be carried on by a reconstituted Cabinet. He has called upon the Prime Minister to reform the Cabinet with a view to giving the country a vigorous and stable administration. The invitation has been accepted. The security and stability of the country are of paramount importance. All personal, sectional and provincial interests must be subordinated to the supreme national interests.”

This proclamation, of far-reaching significance, has reopened the question of constitution-making from item number one, and therefore, the nation’s attention must be riveted to, what are without a doubt, the basic disciplines of fundamental legal norms.

The anarchists would have us believe that the framing of laws is in itself an evil which merely perpetuates the stranglehold of the state. They believe that in the rudimentary stage of social evolution, human beings lived in splendid fraternity because they were not chained by laws. According to them, humanity must return to those halcyon days by abolishing both the state and the laws regulating it. Norms of law ante-date the state

For the sake of argument: however, even if there were a period in history when homo sapiens were not restrained by the fetters of law, that stage, in the evolution of the social order is, in this day and age, as distant from the realities of life as Neptune is from this planet.

An analytical study of jurisprudence reveals that laws are the pillars of the state, and that the constitution is the highest law, the very basis of the state. It is the ‘Grand norm’ from which the state derives its legal validity, the juristic source from which the state emerges with rights and duties in an international community.

The forces which give shape to this fundamental norm are, strictly outside the precincts of juristic investigation. Not infrequently, these meta-juristic elements are to be found in the expression of the “People’s Will.” But even so, the “Volksgeist”, irrespective of its innate vitality is incapable of bestowing the state with a legal validity, because “law proceeds only out of law, and the force of law is law itself.”

In view of this proposition, the preamble of the American Constitution, is, from analytical considerations, impolitic. It begins as under: “We the people of the United States, in order……”

The Founding Fathers were not “the people of the United States” until their constitution created the legal entity called the United States of America. The enforcement of the constitution was the condition precedent for the coming into existence of the Republic itself. An assembly composed of representatives of the thirteen states of the Confederation entrusted with the task of framing a constitution was not and could not be the people of a state which had not, at that particular juncture, come into existence.

This preamble is indicative of the thin line that prevails between the basic juristic and meta-juristic sources. Although the latter invariably precede the fundamental juristic source, that is, the constitution, and is essential for its effective implementation, never must it be forgotten that the former alone is capable of conferring the state with legal rights and duties. However, although in most cases the constitution is the fundamental juristic source of “the state”, such need not always be the case.

For instance, as far as Pakistan is concerned, the fundamental legal norm that established the legal entity called ‘Pakistan’ was the Indian Independence Act of 1947. The Constituent Assembly of Pakistan was not entrusted with the task of creating a sovereign state. In a manner similar to chat of the assembly of the representative of the thirteen American colonies, an act of the British Parliament had already achieved this purpose. Hence, the Constituent Assembly of Pakistan was charged only with the responsibility of framing a constitution that would give Pakistan a form of government more in consonance with its independent status. Even in this case, it can be argued with force that the modified Government of India Act, read with the Indian Independence Act, 1947, is the Constitution of Pakistan, and therefore, there is no real exception to the proposition that the constitution is the basic norm of all states. There is no need to cavil at this point.

In countries where the constitution is the basic norm, the renunciation of the constitution tantamount to the extirpation of the state itself. Pakistan cannot be forced with this consequence unless and until the constitution becomes the fundamental law, that is, not until a constitution is framed which supersedes all other norms. Then, and then only, will the constitution replace the Indian Independence Act, 1947, and the Government of India Act, 1935, and become the fundamental norm, the legal raison d’être of the State of Pakistan. Those who contend that the Indian Independence Act, 1947, is the constitution, for them the repeal of that Act is sufficient to question the legal validity of the State of Pakistan as brought into existence by that Act.

Such an anomalous situation irresistibly poses the question whether lot a repeal of the Indian Independence Act of 1947, by the British Parliament before the enactment of a national constitution extirpates the State of Pakistan?

This is purely an academic question. But even so, Section 6(4) of the Indian Independence Act guards against such a possibility by providing that:

“No Act of Parliament of the United Kingdom passed on or after the appointed day shall extend, or be deemed to extend, to either of the new Dominions as part of the law of that Dominion unless it is extended thereto by a law of the legislature of the Dominion.”

An abrogation of the constitution, must not, however, be confused with a law which brings about a change in Government. The former puts an end to the state per se, the latter only alters the authority within the state. Even if a new government drastically alters the ordinary law and amends a pre-existing constitution, it does not impair the legal validity of the state.

The only condition under which a change in the government extinguishes the legal entity of the state is when a government established by law is overthrown by the use of force. In such an event, the application of means not permitted by the law of the land is the meta-juristic source of the new constitution. This extra-judicial source is commonly called “revolution.”

Hence, as the state and its constitution are concomitant phenomena, an examination of the basic attributes of the fundamental law is important. If a constitution seeks to leave its impress on posterity, it must comply with the following rules:

1. It must be framed in consonance with the personality and the will of the people.
2. It must retain its flexibility.

iii. It must confine itself to essential norms.

A constitution may be federal or unitary in form, it may or may not stipulate for the independence of the judiciary, it may vest the executive power in the President or the Prime Minister and his Cabinet, it may even provide for the minutest detail of administration; but, no matter what its normal provisions be it cannot be a “good” constitution if its form is inimical to what Leon Duguit called the “solidarite sociale” of the people. Form is important, but substance is of supreme importance.

There is a plethora of incidents in history which clearly illustrate the ultimate doom of constitutions which fail to reflect the true spirit and the native genius of the community. Although one need not go all the way with Hegel, he nonetheless observes:

“What is called the making of a constitution is a thing that has never happened in history. A constitution only develops from the national spirit identically with that spirit’s own development.”

Obviously a constitution cannot control the machinery of state in a satisfactory manner if it prescribes a form of administration antipathetic to the people. Indeed, if the constitution ceases to represent the “Volkgeist,” that is the will and the sentiments of the people, there is sure to be a revolt against it. The greatest danger of this exists when constitutions are uprooted from their natural and logical surroundings and hastily superimposed upon a totally different soil. Of course ideas have to be borrowed and adapted to indigenous conditions, but the bulk of the document must fit into the local setting and be in concord with the personality of the community.

“Doctrinaire enthusiasms may adorn a constitution, but if they are out of tune with the existing power relationship, they are no more than an ornament. And by ‘power relationship’ is meant not merely a situation where the naked force of so many people in the country could overcome that of the minority, or where an armed and more homicidal minority could dictate to majority, but also the spiritual values, awake or habitual, prevailing among the various groups which dwell together within a single nation.”

A constitution is no trivial object which can be transplanted in toto from one cultural pattern to the next without causing serious repercussions. Hence, infinite caution must be exercised in studying the local needs and values and judicious discretion applied in borrowing ideas and concepts from alien constitutions. Plagiarism in constitution-making is an unpardonable error, and in the last analysis, the cause of recalcitrance towards the constitution.

Montesquieu, the renowned continental jurist, made the following observations in this respect:

“Law, in general, is human reason in so far as it governs all the peoples of the earth, and the political and civil laws of each nation ought to be only the particular cases to which this human reason is applied.

“They ought to be so closely adapted to the people for whom they are made, that it is very improbable that the laws of one nation can ever be suited to the wants of another nation.

“The laws must harmonize with the nature and the principle of the government which has been established or which it is desired to establish, whether they serve to constitute it as do political laws or to support it as do civil laws.

“The laws ought to be relative to the physical character of the country, to its climate, whether frozen, burning or temperate; to the fertility of the land, to its situation and to its extent, to the prevailing mode of life among each people, accordingly as it is agricultural, pastoral, or employed in the chase, they ought to be relative to the degree of liberty which the constitution can bear, to the religion of the inhabitants, to their tastes, their riches, their numbers, their commerce, their morals and their manners.”

It is impossible, however, for a constitution to retain the national will and personality for long if it is rigid. Peoples’ values are subject to incessant modifications, and it is incumbent upon a good constitution to register the changes accordingly or it cannot maintain its vigor and remain the true embodiment of the community’s will. Indeed, it is essential for a constitution to be a judicial mirror of changing realities, reflecting the shifts in the community’s moods and power relations.

Unfortunately, many well-drafted and basically good constitutions become obsolete because they fail to follow this rule. The reason why some constitutions are inelastic is that orthodox theorists consider it improper to tamper with the fundamental law. They argue that since the constitution is the basis of the national legal order, it must be of a more permanent nature than the ordinary law. Hence, a change in the constitution is made more difficult than the amendment of ordinary laws.

In marked contradistinction to the deification of the fundamental law lies the rational belief that a constitution is a thing to serve, not to be served or idolized. The outstanding characteristic of the British constitution is its extraordinary elasticity. Amery, in his Thoughts on the Constitution, rightly says:

“It is a living structure, shaped by the interaction of individual purposes and collective instincts with changing external circumstances. It has followed the laws of its own growth, and not a preconceived intellectual plan designed to control and confine that growth.”

“The principle of flexibility is a rational one. In a world which is fast changing, in which economic and political forces move from one direction to another, in which science explodes old concepts and institutions from day to day, it is the wiser community which takes cognizance of the empirical approach and keeps abreast with the changes.”

However, it is not contradictory in any way to accept the principle of flexibility on one hand, and to consider a frequent tampering with the constitution inadvisable on the other. The fundamental law must conform with the changes, but at the same time, it is vital that it retains its basic and original character, which in turn is based on certain lasting principles. Thus, a constitution must preserve its fundamental postulates and also accept the principles of flexibility.

This is indeed a difficult balance to achieve and can only be done if the contents of the constitution are kept to the barest declaration of essential legal norms. In a detailed and over-loaded document this desirable balance is an impossibility.

After all, a constitution is only a part of the law of the community and is not supposed to cover every conceivable contingency. It is primarily a legal document, intending to state only the supreme rules of law and, therefore, should confine itself strictly to stating the fundamental rules of law, not opinions and ideologies.

It is unfortunate that there are some among us who do not look upon a constitution as a purely legal document. To them it is a manifesto, “a statement of ideals, a charter of the land.” Hence, the tendency to make lengthy preambles and policy directives a traditional part of most modern constitutions. This is an unhappy trend and produces confusion rather than clarity in the true approach to the fundamental law. Since preambles and directive policies have an ideological rather than juristic force and cannot be enforced by a court of law, the constitution should avoid being contaminated by subjective value judgments and political manifestos.

Chief Justice Marshall of the United States said in the case of McCulloch vs. Maryland:

“A constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never he understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”

As far as Pakistan is concerned the observations of the eminent American judge bear the stamp of prophetic revelation.

Sanguine enthusiasts little versed in the science of fundamental laws aired their views about an “Islamic Constitution,” and in their naive quest to give Pakistan something entirely ‘new’, vagueness reigned supreme. As the years rolled by, a catena of insoluble riddles became synonymous with the task of constitution-making.

In the midst of such confusion and apathy, vacillation turned into a fine art. Those entrusted with the mission of framing the constitution got engrossed in frenzied bouts. Out of such chaos, a document would have emerged studded with partisan irrelevancies. A commercial firm’s ledger book, instead of an Islamic Constitution, would have been the nation’s inheritance. After seven years of flippancy, the masquerade was put to an end by a proclamation which was the fitting epitaph of the Constituent Assembly.

In so difficult a situation no individual or partisan enterprise, no matter how courageous it be, is sufficient in itself to elevate the nation from the unfathomable depths of a constitutional lacuna. In this deadly crisis it is the duty of free men to put an end to internecine conflicts and strive for the re-establishment of tranquility and order as opposed to the regimented dogmas of estatism.

Whether the old Constituent Assembly, with all its obvious limitations, is called upon to function again, or whether another body legally constituted is entrusted with the supreme responsibility of making the constitution, the Olympian end must never be confused, which is, to work tirelessly to raise the rule of law from the quagmire of political entanglements and establish its paramountcy so firmly that no force ever dare to rival it.

The nation will watch with concern the political and constitutional developments. But whatever be the shape of things to come, it must not be forgotten that “a constitution,” in the words of Herman Finer, “is the autobiography of a power relationship” and since it is evident that the power relationship within a state is very seldom, if at all, of a permanent nature, the authors of the constitution ought to have some regard for the cardinal rules enumerated herein, if the intention is to frame a constitution calculated to be of a relatively enduring nature and one which will not precipitate another constitutional convulsion.

The destiny of this great Islamic state is in the balance. Let us not falter in righting the great wrong that each among us has done to the other.