On the Assertion of Rights

The study of constitutional law is quite illuminating. The interpretation of these documents – which attempt to set out as perfectly as possible the terms upon which the many agree to be governed by the few – can often reveal the psyche of that nation’s state. Behind each state’s constitution is the history of its political or social revolution. And each political or social revolution through modern history has had a catchphrase, a statement repeated through history to remind future generations of the reason and purpose of the struggles of their forefathers. For example, the Magna Carta, one the West’s first recorded assertions of right over sovereign authority, signed by King John at Runnymede in 1215, contains statements like “No freemen shall be taken or imprisoned or disseised or exiled . . . except by the lawful judgment of his peers or by the law of the land” – in other words: No incarceration without trial. Another, having been reinterpreted over the centuries, asserts that the King shall levy no taxes upon the people without the consent of a parliament.

The American Revolution is forever associated with phrases like the one used at the Boston Tea Party in 1773: “No taxation without representation.” And the French Revolution brings to mind the poetic “Liberty, Equality, Fraternity.” Though these statements were made centuries ago, they retain their meaning and vigor; As if the people of these countries still remember the importance of the rights they were asserting, and the constitutions of each of these countries still breathe the air of that memory.

The Founding Fathers of such countries also found a more temporal resting place for the rights which had been fought for: Every nation which has had a revolution or some manner of break from its past has a written constitution, and nearly every written constitution contains a bill of rights. These rights, often referred to as Fundamental Rights, are the written elucidation of the catchphrases which defined that country’s revolution.

In contrast, Pakistan does not have much to offer by way of a rich political rhetoric which characterized its revolution – the Partition of 1947. Of course (and I cannot stress this enough), I mean the political rhetoric of Partition as it is perceived today. The murder of history committed everyday by textbooks prescribed by the state has left Pakistan’s political memory with hackneyed phrases like “Pakistan was created to guarantee a Muslim homeland,” “The Muslims of India wanted to participate in government” or the ever popular “Pakistan ka matlab kiya? La Ilaha Il Allah!”

I must hasten to add that this last phrase did not actually exist until after Partition. In his book “From Jinnah to Zia,” the former Chief Justice of Pakistan, the late Muhammad Munir, explained that it wasn’t until 1954, when he was appointed onto the Court of Inquiry into the causes of the anti-Ahmadi rioting in Lahore, that he heard the phrase used for the first time. But I digress. The point here is not that the Pakistani revolution may or may not have had a marketing sound-bite, but that the received rhetoric of Pakistani history is missing something crucial: an assertion of right over the state’s authority. This missing link could mean that the Fundamental Rights guaranteed by our Constitution to every person in this country are merely inherited ideals never truly understood and explored, let alone enforced.

If the creation of Pakistan was a paradigm shift in the understanding of the rights of the Muslims of India, then it is curious to note that Pakistan’s Constituent Assembly took until 1949 (that is, nearly two years until after Partition) to frame the Objectives Resolution, a document which carries the ideals the people of Pakistan had hoped would settle in the character of their infant state. It is also curious to note that there were no major changes in the way the people of Pakistan were governed – that is, in the application and enforcement of law – before or after Partition. Pakistan did not even have its own constitution until 1956, nearly a decade after Partition, choosing instead to operate, until then, under that masterpiece of colonialism known as the Government of India Act, 1935. Furthermore, Pakistan still retains the English civil and criminal procedure systems, the English penal code and host of other pre-Partition laws. Even elitist European clubs maintained their “no natives or dogs” admission policies for some time after Partition (although some would argue that they still continue to press them today).

However, it is true (and I cannot stress this enough) that one of the reasons for the struggle for a Muslim homeland was to enable the Muslims of India to govern themselves as they thought fit. But what one must remember is that as late as March 1940, it didn’t even matter whether India was partitioned or not. What mattered was whether the Muslims of India could participate in the affairs of the state.

At this point, it would be foolish to forget that the “state” over which the Muslims of India fought to have a say in was a colonial institution whose sole function was to act as a conduit for the riches of India as they made their way from the hands of its people to the marketplaces of England. The “participation in the affairs of state” meant little more than an opportunity to claim a share of the spoils. And since there has been no revolutionary exertion of rights in this part of the world, it is not difficult to conclude that the Pakistani state did not acquire a fresh personality at its birth and that instead it inherited the worst possible mindset for running a country: One which believes that the purpose of government is not the enforcement of the rights fought for and claimed by its citizens, but the collection of the fruits of their toils (in this context, it is chilling to note that the official title given to land law in Pakistan is “Revenue Law” and that, at times, the punishment for assaulting another person in this country is minute compared to punishment for stealing from it).

It is unfortunate that this interpretation of history can offer an explanation for the state of our Fundamental Rights and current political wranglings. No one is really taken by the MMA’s claim that a President cannot be Chief of the Army Staff at the same time (after all, have we heard any voices raised against that Martial Law President and MMA godfather General Zia-ul-Haq?). Such rhetoric is hollow as it has little to do with the rights of the people. To me, such a claim – when compared to the reasons for Pakistan’s political revolution – is nothing more than a squabble over who’s man goes where and which political party gets which piece of the pie. In fact, this could be one of the reasons why there is little political rhetoric (here, I must genuflect before the few notable exceptions who carry on the fight for the rights of the people of Pakistan) focusing on the rights of people or society. The people of Pakistan have never experienced enough freedom to claim that their interests precede those of the state.

It will take nothing short of a collective assertion of rights before Pakistan’s political psyche can comprehend its colonial mindset and begin to affect change. Of course, such an important task should not be left to our politicians. I believe that it is our judiciary, with its powers to strike down laws inconsistent with Fundamental Rights, which has the ability to allow such an assertion. Not until then will we see institutional vision and hear political rhetoric focusing on bettering people’s lives by understanding, enforcing and protecting their Fundamental Rights. Till then, however, one must guard against losing heart for, according to the great American Jurist, Justice Learned Hand, “Liberty lies in the heart of men and women; when it dies there, no constitution, no law, no court can save it.”