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
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
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.