HUMAN NATURE-CUM-CONSTITUTION

Mawra Raja

This write-up argues that there are two misconceptions about constitutions. Firstly, that they are rules governing state organs either through text or system. Secondly, that if the Constitution of Pakistan, 1973, is replaced with Western ideals/ provisions, only then can real change come about in our system. The fact of the matter is that constitutions are rules governing human nature and their success is in their control and check of the same.

“Is there something known as a large constitution?” asked a pupil. Well, the answer is dual, depending on how one construes what has been asked. If one means large in the sense of size, the answer is yes, and probably what comes immediately to mind is the Constitution of India, with 395 articles in 22 parts, and 8 schedules and 100 amendments. But, if one takes it to mean if there is any kind of classification of constitution known as large, the answer is a straight NO. This is because constitutions have typically been classified in binary divisions such as codified/uncodified, unitary/federal, monarchical/republican, separation of powers/fusion of powers, rigid/flexible and supranationalist/intergovernmentalist.

These classifications are valuable as they inform us about the variety of constitutions in the nation-states, but they do not draw our attention to a much more important distinction between ‘capital C’ constitution (constitution as a text) and ‘small c’ Constitution (constitution as a system). When, in fact, this analytical distinction is of foremost importance, and should be the focus of any student or citizen when evaluating a legal system. This is because the constitutional legal orders of many countries do not mirror-image the theoretical guarantee found in the text. An example is the Constitution of Cyprus which, by virtue of Article 1, talks about there being a President and a Vice-President, but, in reality, constitutes only the former; for the latter is vacant since long due to civil strife and political divisions within the country.

Yet as much as it is important to understand the larger constitutional order, it is equally important to understand the relationship constitution bears with human nature. For much of what the constitution of any type does is to shield against the vices of human nature about which Thomas Hobbes had forewarned us against in his seminal work Leviathan (1651) as ‘greed, self-centredness and love of glory and power and propensity to quarrel.’ These impulses, he opined, if left unchecked would lead to a ‘war of all against all, making commercial activity and much of the routine matters almost impossible.’ It was therefore a sine qua non of human existence to subject ourselves to governance by rules. On this lens, then, constitution is a need-based human-nature-controlling set of rules arising out of the vices of human nature which can disturb the equilibrium of justice in a given society. Perhaps it would be more accurate to say that the idea of society as a club of human coexistence would be impossible without such rules-based governance.  It is, therefore, an essential component of our coexistence to set out the rules, and live by them.

Importantly, in countries with a codified constitution such rules are enshrined in a documented text, making it possible for the constitutional court to check the lawfulness of executive powers or national laws against it. Thus, in Pakistan, to find out if the National Assembly has been lawfully dissolved, the Court refers to Article 58 of the Constitution of Pakistan, 1973, (hereinafter COP) which empowers the Prime Minister to tender advice to the President to do the same. So, if it is tendered by anybody other the PM, the court nullifies the dissolution. Likewise, the promulgation of presidential ordinances is tested against the Constitution. For instance, if the incumbent President of Pakistan, Dr Arif Alvi, promulgates an ordinance, its lawfulness will be adjudged on the touchstone of Article 89 of the COP. That is to say the Court will find them ultra vires if they are made when Parliament is in session with effect for more than 120 days. On this account, the Islamabad High Court had found the Pakistan Medical Commission Ordinance, 2019, null and void. The purpose, as we learn of a codified constitution, then, is to guide human nature against its corruption.

On the other hand, in countries with uncodified constitution, the control over the tyranny of human nature is achieved through application of common law constructs such as traditional grounds of judicial review (which make it possible for the court to check the lawfulness of executive action taken under delegated legislation or prerogative power, and denounce/declare it as irrational, illegal or procedurally unfair) or through reference to international treaties such as European Convention on Human Rights of the European Union. As regards the former, if the Prime Minister of the United Kingdom, Boris Johnson, advises Queen Elizabeth II to prorogue parliament, the lawfulness of this prerogative power could be tested against the constitutional role of parliament. That is to say, his advice could be found unlawful if its purpose is to defeat parliament from holding the government accountable or voicing its opinion on a matter. Such a situation arose in Miller vs. Prime Minister (2019). Here, the UK Supreme Court held that the advice of the British prime minister to Her Majesty the Queen on 27^th August 2019 to prorogue parliament for five weeks right before the Brexit date of 31^st October 2019 was unlawful. In paragraph 57 of the judgement, Lady Hale [President of the Court] opined that its unlawfulness drew from its use to paralyze the House of Commons from having its say in how the Brexit process should come about. Thus, the PM could not use the veil of prerogative power to forfeit parliament’s judgement to bring about Brexit through a Withdrawal Agreement.  

As for the latter, if one is figuring out whether a British school has violated its pupils’ right to freedom of religion and conscience or not, reference would be made to Article 8 of the European Convention on Human Rights (incorporated through Human Rights Act, 1998). This happened in the infamous Denbigh High School (2006) case. Again, we see here that the purpose of an uncodified constitution is to keep a watch on vices of human nature: that is to stop the PM from imposing his will on parliament in the first case, and deter educational institutions from violating pupils’ rights in the second.

Thus, from the foregoing discussion, it is evident that the constitutional value of any constitution is dependent not on its form, but on its success to control human arbitrariness, unfairness and violence. Precisely, there is a lesson for those citizens of Pakistan who talk about substituting our current constitution with provisions found in other Western constitutions: that the goodness of any constitution depends on its control of human nature and its vices. Thence, instead of substituting our constitution with other-world constitutional rules we should commit ourselves to delivering on those that are already found in the COP. This is because the follies of human nature can come under check only with practical application of rules whether found in text or system.

The author teaches jurisprudence and legal theory at Pakistan College of law, Lahore. She can be contacted at mawraraja@protonmail.com