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Untitled Document
The Constitution and The Nation
Dr. Akmal Hussain
Newspaper: The Daily Times
Dated: Thursday, October 16, 2003

Ejaz Haider (DT Oct 7) and Jan Sitwat Mil (The Nation Oct 3) have both made valuable contributions to what is becoming a fertile debate. Fertile, because it may help in both understanding why in Pakistan, attempts at constitutional stability have met with repeated failure, and in developing a consensus on core values, which could ensure such stability in the future. As a humble contribution to this process of understanding, I will in this article, briefly discuss the source of a constitution at three levels: (1) The nature of legal meaning inherent in a constitution (2) The nature of organizational rules and (3) The ‘spirit’ of a nation.

As a point of departure it may be helpful to clarify the distinction between a constitution and what Kelsen calls a Grundnorm. The problem with Mr. Haider’s argument (see DT Sept 5 and Oct 7) originates in the fact that he uses these two distinctly different terms as if they were the same. The constitution is a legal document specifying what Hayek calls a “set of rules” concerned on the one hand with the internal organization of the state and with constraints on its actions on the other. By contrast the Grundnorm as I had argued in my article (DT Sept 25) is that particular consensus which is organic to a nation’s essential nature, and which ensures that no entity (“endogenous” or “exogenous”), would undermine the constitution. I had suggested that the very fact that the essential character of Pakistan’s constitution had been repeatedly violated by both elected governments and the military, was evidence of the fact that a Grundnorm has not yet emerged in Pakistan. Mr. Mil (see The Nation, Oct 3) in his subsequent article has further reinforced the distinction between the constitution and the term Grundnorm, when he says, “Kelsen’s Grundnorm was neither the constitution nor an ideal … It is a norm that lies at the foundation of a society. It is what societies held sacred and dear at their very core and from which flow all other norms.”

By identifying the constitution with the Grundnorm, Mr. Haider has in fact assumed out the problem of explaining the repeated undermining of the constitution resulting from the actions of elected governments on some occasions and by the military on others. The second consequence of using the terms ‘constitution’ and ‘Grundnorm’ synonymously, is that the issue of interventions against the constitution can only be treated through his injunction that the constitution must not be violated, if the ‘system’ is to function. Mr. Haider’s injunction is a tautology, even though an extremely important one. It translates into the axiom: The necessary condition for the functioning of a system is, that the rules in terms of which it is defined, must be followed. However, this axiom needs to be developed into a theoretical construct, on the basis of a distinction between the constitution and the Grundnorm. (A theoretical construct has both explanatory and predictive power, while an axiom does not). This would enable us to explain in Pakistan’s case, why the constitution has been so frequently replaced by new documents in the past, and is likely to happen in the future again, ceteris paribus. Such an explanation is important in order to identify the necessary conditions for achieving a sustainable constitution. It is also important in the practical sense of initiating the social and political process through which the necessary conditions for sustainability can be brought into existence.

In understanding the vital distinction between the constitution (a legal document), and the Grundnorm, one may ask the question, what gives meaning to law? Is law (as some scholars hold) simply a set of orders backed by sanctions? Take the example of a person held up by gangsters who command him to give up his wallet or get shot. This is certainly a command backed up by sanctions. The poor fellow may actually give up his wallet for pragmatic reasons. Yet his compliance is not a legal obligation. Thus the question of a legal obligation is more than merely the fact of a command backed up by sanctions.

Kelsen argues that acts have legal meaning in the context of norms. It is linked with the idea of what one ought or ought not to do. People normally do not steal because of the norm that one ought to follow criminal statutes. This depends upon the norm that one ought to follow the constitution. The question is what is the norm in terms of which it is obligatory to follow the constitution? This is the Grundnorm, which is part of the civilizational content of a nation, the core values in terms of which a nation experiences its identity or defines its common purpose.

Let us examine the concept of a constitution as a set of organizational rules. In this context F.A. Hayek, the Nobel Prize winning Austrian economist, distinguishes between a “spontaneous order” and an organization. While in a spontaneous order individuals are bound only by “general rules of just conduct”, in an organization they are subject to “specific directions by authority”. It can be argued that while a constitution constitutes a set of organizational rules governing the conduct of the state, the source of a constitution is embedded in what Hayek calls a “spontaneous order” and Kelsen calls a “Grundnorm”.

The third level at which the source of a constitution can perhaps be determined is what G.W.F. Hegel calls the “spirit” of a nation. Hegel in his lectures on the Philosophy of World History, argues that the spirit of a nation when it becomes fully developed, becomes aware of itself. It is a consciousness of “its own ends and interests, and of the principles which underlie them”. For Hegel, the spirit of each nation has its own specific defining principles, and each nation seeks to realize its own end. Yet the “substance of the spirit is freedom”.

The issue in Pakistan is not of condoning military intervention in the structure of the constitution. Of course it is unacceptable to all those who wish any constitution to function. But then we would also have to confront the fact that destabilization of the constitutional order has repeatedly occurred through the unbridled pursuit of power by elected politicians as much as by the military. The challenge is to reach a consensus on the Grundnorm so that whatever constitution is constructed on its basis will be sustainable. The Grundnorm pulsates in the heart of a nation fully conscious of itself. We are not there yet. A process of education, enlightenment, and reasoned debate is needed. Such a process that combines love with reason will lead to it.

The national consciousness embodied in the Grundnorm is the source of the constitution and gives it legal meaning. It is the bottom line in our psyche, which prevents us from undertaking certain actions, and validating others. If such a Grundnorm does not exist, the constitution would be (as General Zia ul Haq once put it) “just a piece of paper”. It would be violated whenever it is feasible in terms of power play to do so. On the other hand if the Grundnorm existed, not as a set of abstract principles but as values organic to our nationhood, then it would not be possible for any individual or group of individuals whether armed or unarmed, to do so. They would have to face popular resistance.

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