The Humane Constitution
Lawyers are fond of saying that ‘justice is blind’. But under human constitution justice will have its eyes wide open, and will be looking to defend the interests of the masses.
By Zahid Ali
Present constitutional crises in Pakistan has posed big problems for the ruling class because the state, and the constitutional laws that surround it, are deliberately mystified. Parliamentary democracy and the Rule of Law are treated as immutable ideas woven into the fabric of the universe. So when crises develop over the structure of the state itself, this risks exposing its aura of mystery and power.
Constitutional laws regulate and limit the power of the state. Constitutional safeguards can help the exploited to fight against the exploiter. Set of rules according to which a body of people are governed is called constitution. It formulates the relationship between citizens and nation states, as well as the relationship of various parts of the state machine to each other.
Rules about how states and societies should function have existed for as long as there have been state structures, around 5,000 years. But today, when academics, lawyers and politicians talk about the constitution or constitutional rights they tend to be referring to broadly defined ideas and concepts, like fairness, equality and justice, which they say are defended by legal mechanisms. The overarching principle that encompasses it is often referred to as the Rule of Law.
When Supreme Court of Pakistan disqualified Nawaz Sharif and Jahangir Tarin it upheld the constitution. The British Supreme Court decided against the government over Brexit, deciding that parliament and not the government had to have the final say over Britain leaving the EU, the judges were portrayed as defenders of British constitutional rights against overreaching politicians. When judges in the USA ruled against Trump’s Muslim travel ban, they were portrayed as upholding constitutional rights against authoritarianism. Constitutionalism and the Rule of Law are check against executive state power, and defender of the rights of the individual.
Adoption of capitalist revolution brought with it ideas such as equal political power for all instead of hereditary rights. The despot no longer had the right to act without the consent of a parliament, made up of elected representatives. In addition, executive action could be limited by the judiciary, through the medium of the courts. Democracy, the equal application of the law, and the freedom to work for whomever you pleased were all central to the new bourgeois order, albeit in a limited form at first. These are the basis of the rules that we today refer to as part of the Pakistani constitution.
In Pakistan unfettered feudal power and the modern Rule of Law stands a transformation equivalent to Solon of Athens’ political revolution. Both processes involved a transition from the state as a naked weapon of class rule, to a constitutional state.
Constitution came about as the product of a class struggle, which forced concessions from the old established order. But this doesn’t mean it avoided compromise and accommodation between different wings of the ruling class, and between the old dominant order and the new one.
Undoubtedly today’s state is the most refined and perfected tool for the ruling class. It is tied by a thousand threads to capitalist interests. The notorious revolving door between business and government ensures that ministers and civil servants slide easily between government regulators and the companies they are supposed to be regulating. Big business lobbyists use threats and bribes to force governments to act in the interests of the bourgeoisie. The courts, prisons, police and army are used to defend the private property rights of the rich, while the rights of the poor to housing and food are ignored.
When it comes down to it, the role of modern constitution is simply to prettify with ‘checks and balances’ the same state machine which empowers the usurper ruling junta. The concept of individual private ownership as a legal right is part of the foundations of capitalist society. Upon this foundation is constructed a constitutional scaffold that re-moulds the old feudal, aristocratic state into a new capitalist one. The state’s function as a tool of the possessing class to oppress the non-possessing class remains the same, but its precise form is refined and perfected to suit the needs of ruling elite.
Pakistanis need to debunk the false constitutional impartiality, and should not succumb to use the fiction of abstract equality before the law. They must know that those who wield state power need deceptions to keep people ignorant of the real role of the state. Lawyers are fond of saying that ‘justice is blind’. But under human constitution justice will have its eyes wide open, and will be looking to defend the interests of the masses. Such a constitution will simply and openly describe the existing relations between haves and have-nots.
In fact individuals enforcing their constitutional rights against the state through the courts is a hallmark of a system in which the state is separate and apart from society as a whole dictating down to society instead of being an integral part of it.
There is need to establish such humane constitutional rules governing state structures through a radical change of society where there would not be abstract laws, enforced from above, but living guidelines shaped and used by the mass of people to help them with the running of the administrative functions of the state.