A constitution can be malleable or rigid; in other words, its provisions can either be directory or mandatory in nature. A directory provision is a constitutional instruction that is desirable but not absolutely necessary. The recent flooding of Karachi and the excuses by the PTI, the political party that holds Islamabad’s reins, in relation to the flooding situation are helpful in understanding it.
While the PTI representatives were out and about recording videos and badmouthing the PPP for being responsible for the flooding of Karachi, the PTI government was merely ignoring its constitutional role in such an emergency-whether through federal agencies responsible for taking cognizance of such a national emergency or the constitutional provisions relating to emergency circumstances. These are the provisions that could have been utilised by the federal government to help the people of Karachi who played a major role in getting the PTI to power in the centre. The constitutional provisions relating to such an emergency were directory; it was within the discretion of the federal government whether they were to apply the provisions or just lay back and blame the provincial government.
Not all constitutional provisions are directory. A mandatory provisionis a constitutional instruction that requires, as opposed to permit, a particular course of action. It is when the mandatory constitutional provisions, which have to be followed come what may, are violated that result in an uncertain political environment and become a challenge to the constitutional legitimacy of the government.
A glance at Pakistan’s constitutional history makes it evident that every time a government has tried to strong-arm institutions through disregarding the constitutional provisions, it has led to chaos and subsequently, the abrogation of the entire constitutional machinery itself. In Prime Minister Benazir Bhutto’s first term, it was a conflict over the division of powers between the president and the prime Minister. The subsequent decisions of the government to corner the president led to the downfall of the entire government. In Nawaz Sharif’s first term in office, it was the attempt to impose federal rule over Punjab that led to the downfall of his government. In Benazir’s second term, it was her government’s constitutional intimidation of judges that led to her own appointed president firing her government. In Sharif’s second term, it was the storming of the Supreme Court and interference in the appointment of the army chief in violation of the constitution and the law that subsequently led to the downfall of the entire constitutional edifice and imposition of the martial law.
Violations of mandatory constitutional provisions always result in the downfall of the legitimacy of those that govern a country
General Pervez Musharraf was also a victim of the unconstitutional sackingof the Supreme Court judges; without that trigger, one may think his rule could have continued for at least a few more years.
One would expect that politicians in Pakistan would learn from harsh past experiences. Violations of mandatory constitutional provisions always result in the downfall of the legitimacy of those that govern a country. Sooner or later, they cannot rely on constitutional institutions that they themselves weakened. Yet politicians in Pakistan are of that rare breed that never learns from its past mistakes. Those that advised the PTI government to appoint two members from Sindh and Balochistan in violation of the mandatory provisions of Article 213 and 218 of the constitution are not friends of the government. They may have their own vested interests in the appointment of the two candidates that were neither confirmed through consultation between the prime minister and the leader of the opposition nor through the legitimate means of confirmation through a parliamentary committee. In fact, the Supreme Court has already held that the president has no discretion in the appointment of the members of the Election Commission nor can he act on the advice of the prime minister. The government cannot be allowed to have its own candidates appointed for the sole reason that the parliamentary committee could not reach a consensus.
If such unilateral moves by the government were to be accepted as constitutionally legitimate, it would give the government unbridled powers to violate the constitution. The government can then unilaterally impose its choices in violation of constitutional arrangements just by stalling appointments. That would result in weakening the institutions of the state, inconsistent with the rhetoric of strengthening institutions, a point on which the PTI focused much of its election campaign.
The decision by the Chief Election Commissioner (CEC) to not take oath from the unconditionally appointed members is a move that needs to be lauded. The government should have known better. It is incumbent upon the CEC, due to the oath that he takes under the constitution, that he shall not let any unconstitutionality perpetrate within the workings of and appointments to the Election Commission.
The government and the opposition need to see that their irresponsible actions that result in the violation of constitutionally mandatory provisions will lead to the downfall of the entire democratic system. Can we afford such a course of action with India brutalising Kashmir, the US stepping towards the endgame in Afghanistan, and FATF reprimanding us year after year?
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law