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Legal Basis

  • Dr Muhammad
  • Jan, 2021
  • 461
  • Dead Spirit Of The Constitution

Constitutions are like operating manuals and a great guide in how to run a democratic system

There is a typical tendency that majority of us demonstrate while we handle various operating manuals - they are kept aside and for any machines that we buy to operate we only refer to these operating manuals only when the machines experience some malfunction. One of the things that we forget is that understanding the small little things and doing them right can act as great preventers of major break-downs. But we think that the machines are so deliberately considered, well-designed and manufactured that our mistreatment of them by remaining ignorant about the small little things that we must do right would matter little. Eventually it does matter and we get into bigger trouble.

Constitutions are also like operating manuals and a great guide in how to run a democratic system but even if they are well considered and well-designed, they alone by themselves cannot guarantee democracy. Nothing is ever absolute or complete and constitutions are no exception. They will always showcase gaps and ambiguities and it is maybe in this context that the government has decided to approach the Supreme Court of Pakistan to seek its opinion of holding Senate elections in an environment of greater transparency under Article 186 of the Constitution. Why is the government doing this and is this good for democracy in this country?

From having no constitution at all (Britain) to having a four-page constitution (US, original constitution was only four pages long) to having thick volumes of written text, all constitutions have two important parts - its body and its spirit and both play an important role in how democracy is run in a country. It is actually how constitutions are interpreted, treated and implemented that refines, improves and perfects democracy. Best democracies in the world are doing well because they keep up with the spirit of the constitution. Spirit is not written it is felt and understood. While we have written and thickened our constitutional volumes, they have worked more on understanding its spirit and the difference between us and them is there for all to see.

Nothing in the American constitution ever dictated that presidents should step down after two terms. Retirement of a president after a second term was considered as a time-honored custom and any departure from it was considered as a move that would be unwise, unpatriotic, and fraught with peril to America’s free institutions. Only when in 1940 President Franklin D Roosevelt violated this spirit that the 22nd amendment to the constitution was passed to prevent its recurrence. But why do democrats in our country only respect the letter of the constitution but not its spirit?

While the letter is ‘what the laws states’, the spirit is the ‘social and moral consensus of its interpretation’. The law states that voting must be held in the Senate (which is the letter) to which our democrats agree, but that the election should be free and transparent (which is the spirit) is something that our democrats will never be able to agree to because of their vested interests. As a commoner it is my great wish and desire that our parliamentarians should stop selling us only the letter of the constitution and should stand up to own its spirit as well.

The body of the constitution can be amended many times but its spirit needs no amendment but understanding. The changes made in the constitution will never create the desired effect unless its spirit is understood. True change will come only if the changes reach out to the spirit of the constitution. What is that spirit? What does it represent?

The spirit of the constitution represents the very change that can be brought about in the lives of the people. The spirit lies in understanding how the constitution must be utilised to act as a bridge to support the social contract that represents the aspirations of the people that binds the ruler with the ruled. The spirit of the constitution represents how our attitudes as people must change positively not only towards each other but our constituencies, our cities, our provinces, our religion and our state. The spirit of the constitution is how we should unite to do good rather than divide and separate to spread hate. How many of our parliamentarians and political leaders demonstrate this spirit? The spirit of the constitution is not to serve the interests of some elected elites only, its spirit is to serve the interests of the state and its people. What good is the political leadership that utilises the constitution only to sustain it in power and extend its rule? Is our constitution only an operating manual that helps politicians defend their interests and operate their engine of power? Is Maulana Fazl-ur-Rehman representing the spirit of the constitution...

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