Witness to History

Roedad Khan

"A country's constitution", Thomas Paine cautioned in the Rights of Man, "is not the act of its
government, but of the people constituting a government". More than two centuries ago (1787)
55 Americans worked through the sweltering heat of a Philadelphia summer to forge one of the
most enduring political compromises which has stood the test of time. In Pakistan too, a
constitution committee, with Mr. Abdul Hafeez Pirzada as chairman and 24 members met in
Islamabad on October 9, 1972, in the backdrop of a bloody civil war and loss of half the country,
to prepare a draft of a permanent constitution of Pakistan.

I was lucky enough to have witnessed, from a ringside seat in the official gallery in the National
Assembly, the passing of the Constitution Bill and the emergence of the 1973 Constitution. It
was a momentous event in the chequered history of our country and I was not going to miss it.
How could one resist the temptation to be present at the Creation? History was in the making.
"History" writes C. V. Wedgwood in her biography of William the Silent, "is lived forwards but
is written in retrospect. We know the end before we consider the beginning and we can never
fully recapture what it was to know the beginning only". None of the main characters in the
constitutional drama - Zulfikar Ali Bhutto, the architect of the Constitution, Abdul Hafeez
Pirzada who piloted the Constitution bill and Wali khan who led the Opposition, knew, nor do
any of us yet know, the end.

The Constitution committee was particularly conscious of the unfortunate constitutional history
of Pakistan and past failures. It identified the causes which led, on more than one occasion, to
the breakdown of the constitutional machinery. This, in the opinion of the committee, opened
the way for usurpers and dictators to assume power at the cost of the oppressed people and the
country. The committee was of the view that the vagueness and dichotomy in the past
constitutional instrument with regard to the source and exercise of power enabled
unscrupulous adventurers to destroy systematically all democratic institutions and processes.

As the people's representatives for the first time elected directly by adult franchise, the
members of the committee strived to arrive at a constitutional arrangement which would
preclude any recurrence of past failures. The draft of the constitution, the committee hoped,
would do away with the dichotomy between the fiction and reality of executive authority. The
committee provided what it thought were effective deterrents against any attempt to abrogate
or subvert the constitution, which offense was declared High Treason.

I still remember Mr. Pirzada thanking the Speaker for conceding the floor to him and his words
still ring in my ears. "Mr. President, Sir, first time in the history of Pakistan of 25 years, tragic
history of Pakistan, tragic constitutional history of Pakistan, for the first time we are not only on
the threshold of giving a constitution through the most recognized and cherished democratic
process but we are almost over that threshold…

Mr. Bhutto, who followed Mr. Pirzada said, " I hope that after a long and tortuous road we have
reached a stage in our life which can be regarded as a culmination. For a long time we have not
been able to find basic solution to many problems that affect the country. Again and again, the
issues have been opened and re-opened with greater anger and with greater bitterness. Among
these problems the answer to the constitutional problems of Pakistan can be regarded as the
most important. After 25 years we have, after many disputes and quarrels, come to a point
where we can say that we have a fundamental law; we have a constitution and nobody can
deny that this constitution does represent the Will of the people of Pakistan; nobody can deny
that this Constitution is a democratic constitution by any definition of democracy; nobody can
deny that it is a Federal Constitution; nobody can deny that there is settlement over the
quantum of autonomy and thank God for that; nobody can deny that it is an Islamic
constitution; It contains more Islamic provisions than any of the past constitutions of Pakistan
as well as any of the other constitutions of Muslim Countries other than monarchist Muslim
countries… I would always want to meet you and to continue our dialogue and our discussions
because I believe this is the best way, this is the only way. We cannot shoot our way through
because we have seen that when you shoot your way through, you reach the grave, and there is
no flower left. If the whole land becomes a waste land, we do not want to make our country into
a waste land, we do not want to see those solutions which are regarded to be the easy and the
obvious solutions, they are not the easy, and the obvious solutions as we saw in 1958 and as we
saw to our peril in 1969. So, then these are the major problems.

To the young Law Minister, I would say that he has done great service to Pakistan and it is a
good fortune of history that on his young and able shoulders fell the task of giving Pakistan a
constitution, of piloting the constitution bill. This is not a privilege which can be easily had in

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our circumstances in the conditions of Pakistan. He has worked with great zeal and with
untiring devotion. He has been in touch with the opposition leaders at all times. He has kept his
mind open. He has acted with dexterity, with finesse, with a nimbleness and he has amply
demonstrated great qualities of a legal mind, of a political mind.

I have continued my speech longer than I thought it would be but I would finish with only one
note and that is this that: is this constitution a viable constitution? Its viability lies in the hands
of the people, its viability lies in the consciousness of the people, its viability lies in our
understanding of our conditions. If we do not take stock of the situation, if we do not learn from
what had happened in the past, if we do not repeat the tragic errors that we have made in the
days not so long ago, if we pause to think and consider what a certain action will contain and
what will be the consequences and repercussions of certain acts either made out of lack of
knowledge or out of sheer ambition or greed, then I believe that this document will stand the
test of time. But if we think that it can be cast aside and that there are simple solutions and all
that one has to do is to sit on a white charger with sword in hand and settle problems with its
flash, in that case the tragedy of the greatest magnitude will befall Pakistan. Therefore, this
document is in the vault of the people, the people hold the key to its viability. All we can do is
to pray to Almighty Allah that at long last after many efforts, because no country has had to
face as much of constitutional experiences and troubles as Pakistan - we would now consider
this document to be a fundamental law worthy of respect of the whole nation and that the
whole nation now and the generations following it will protect it with their blood and with their
lives". That day I felt like I had a future. Pakistan was back on the rails or so I thought.
Disillusion was soon to set in.

The 1973 constitution elevated the status of the Prime Minster while reducing the status of the
President and incorporated provisions presumed to deter the army from interfering in politics.
Mian Mahmood Ali Kasuri, a member of the drafting committee and Law Minister, concerned
about the Head of State's "uncontrolled power" to dissolve the National Assembly, resigned his
committee post and cabinet position. It is unfortunate that Mr. Bhutto violated the sanctity of
the constitution and the constitutional Accord by a series of unilateral amendments in the
constitution in the teeth of opposition from his political opponents. In the process, he destroyed
the delicate political compromise which formed the basis of the 1973 constitution, weakened his

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position and exposed himself to vicious attacks. Ultimately, he was overtaken by forces he
thought he had neutralized and had in fact re-empowered.

Zulfikar Ali Bhutto knew well the man responsible for the trouble he was in; he looked at him
everyday while shaving. All of us have a black as well as a white horse to draw the chariot of
the soul. Tragically, ZAB's horses were both black. It was a Greek tragedy. Mr. Bhutto was
fulfilling his own nature. Once it started, it could not end otherwise. Coexisting with his better
angels in his nature were demons from a darker hell. ZAB was like a quartz crystal: Some facets
bright and shining and polished, others dark and mysterious.

On July 5, 1977, General Zia ul Haq, the COAS promoted by Mr. Bhutto in 1976 over the heads
of several senior officers struck; staged a military take over, arrested Bhutto, and other members
of his government, including Mr. Pirzada, sacked the Federal and Provincial governments,
dissolved the assemblies, held the 1973 constitution in abeyance and declared martial law. Mr.
Bhutto, the architect of the 1973 constitution, was convicted on a murder charge, taken to the
gallows and hanged on April 4, 1979. So, it had all been in vain. In vain all the efforts, all the
deliberations, all the debates, all the nocturnal sessions. We are back to square one like
Sisyphus, the Greek errant in Greek mythology whose punishment in Hades was to push uphill
a huge boulder only to have it tumble down again.

We are all bruised and battered by those who chose to play fast and loose with the Fundamental
Law of the land. Once again the country is in the grip of a grave constitutional crisis. Pakistan is
under military rule for the forth time. The 1973 constitution is held in abeyance. Parliament
stands dissolved. We have come to the brink of a chasm with only three alternatives before us:

i. To turn back the way we came by;

ii. To cross the gap by a legal bridge

iii. To hurtle into the chasm beyond any hope of rescue

We can't go back in time and fix the mistakes of the past, but why do we have to repeat them in
the expectation that it would produce a different result. Is it our Karma? Is it our destiny? Is
there some evil spirit that hangs over Pakistan? Are we on a phantom train that is gaining
momentum and we can not get off?

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As to the Referendum, Mussolini once uttered a warning in a different context, "'Eun errore'. It
is a mistake. If the result is satisfactory, people will say that it is not genuine. If it is bad, the
situation of the government will be unbearable, and if it is inconclusive, then it is worthless".
Even at this late hour, President Musharraf will be well advised to heed these words of wisdom.
But "man", Hegel once said, "learns nothing from History except that man learns nothing from
history".