A couple of weeks ago, I was at a dinner featuring the ambassador Dr. Maleeha Lodhi. After her speech, a very heated question and answer session began as a member of the audience disagreed strongly with her optimistic view of democracy’s prospects in Pakistan. He pointed out that the American system, with a very explicit separation of powers, has been extremely successful, while Pakistan’s constitution has failed over the last 50 years to create a stable system. Although this guest did not explicitly say so, it was my impression that he felt Pakistan’s system was inherently flawed, and would never be able to succeed. It is interesting therefore to compare the Constitution of Pakistan and America, as they are quite obviously two very different documents.
America’s constitution dates from 1789, when the former colonies agreed on a strong central government rather than the loose confederation that had existed since the defeat of the British in 1781. It has withstood the test of time, with a mere 17 amendments along with the Bill of Rights having been added since then. There are two things that stand out about the US Constitution. The first is its sparseness. It is a very brief document with powerful ideas expressed in the most compact way possible. For example, the freedom of religion in America rests on the short phrase, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Schoolchildren can easily read and understand the US Constitution, and in fact are made to do so in high school social studies classes. The entire document consists of 7 articles, the Bill of Rights, and 17 short amendments.
The other salient feature of the American document is its clear three-way separation of powers. Three independent branches of government are created. An executive branch is headed by a directly elected President, while all legislation is generated by a separate Congress divided into two houses, and the Federal Courts are filled by judges with lifetime appointments. They get there by being nominated by the President and later confirmed by the Congress. Certainly there is much to admire in this system, but does the wisdom of this arrangement make it foolproof?
Compare the US document to its Pakistani counterpart. Pakistan’s Constitution dates from 1973, and contains over 250 articles with about 15 amendments in less than 30 years. Pakistan has a parliamentary system, in which the dominant coalition in Parliament assumes both executive and legislative power. The leader of that coalition is the Prime Minister. But Pakistan also has the office of the President, who is elected to a five-year term by the votes of the National Assembly and a weighted vote of the Provincial Assemblies. The President has the right to nominate the judges for the Supreme Court, and before the Article was stricken by the last Sharif government, had the power to dismiss the government and order new elections.
One of the flaws of the Pakistani system is this strange role afforded to the President. If the President is supposed to be a symbolic head of state who projects national unity, as occurs in many other nations, then he should not have this degree of political power. But if he is to wield this much power, then the position should be directly elected by the people of Pakistan, and not be the result of backroom deals between MNA’s.
Where the American document is sparse, the Pakistani document spells out all sorts of details of government. One provision specifies which city the Supreme Court may sit in, and another describes how to deal with fractional votes during an election of President. All sorts of rights and obligations are handled with the language of legal statutes in great detail. This begs the question, why?
The answer goes to the heart of what the gentleman was debating about with the ambassador. What the US and Pakistani Constitution betray is the trust each nation places in its own political class. The US document is sparse, because Americans can trust their leaders to subscribe to and fulfill the spirit and intent of the document. The Pakistani version is so cumbersome and legalistic because there is no trust of the political class not to subvert the Constitution’s basic spirit. If the American Congress so desired it could create great havoc. It has a very broad power of impeachment. It can cut off the funds that pay for the electric bill in the White House if it so chooses. The lifetime appointed Supreme Court justices are free to do anything bizarre that strikes that small group of 9. And the President could order the arrest of the Congress (there is no parliamentary immunity in the US system), and defy the orders of the US Supreme Court with impunity. What makes the American system work, even when branches of government are controlled by bitter political enemies, is the inherent goodwill and sense of limit that all in politics subscribe to. President Franklin Roosevelt, at the height of his power and popularity, tried to subvert the Supreme Court in 1937, and was roundly defeated.
Pakistan’s political class cannot be trusted. That is why this unwieldy Constitution was created. Britain has one of the world’s most successful democracies, and has no written constitution at all. It is not Pakistan’s lack of a decent prescription that has prevented it from having political health, but rather its failure to take the medicine.