A Constitution Without Spirit
Karl Marx, never one to shy away from a rhetorical flourish, began ‘The Eighteenth Brumaire of Louis Bonaparte’ by declaring that great historical events repeat themselves, “the first time as tragedy, the second time as farce”.
Marx’s words now echo across Pakistan. From a constitutional perspective, it was a tragedy when, in 2022, a lawfully elected chief minister of Punjab was refused oath of office by the provincial governor of the time, Omer Cheema. His reasoning: the chief minister’s election was ‘beyond the ambit of the constitution’ due to alleged floor-crossing during the voting process. At the time, this had no effect on votes cast. The Supreme Court’s controversial interpretation of the constitution’s defection clause would come later.
This petty impasse would be resolved after multiple constitutional petitions before the Lahore High Court. Eventually, Hamza Shehbaz Sharif would be sworn in after the high court directed the speaker of the National Assembly to administer the oath.
Today’s farce stars another governor, this time from the PPP, refusing to let an elected chief minister resign. In cricketing terms, it’s like a batter nicking one to the slips and walking off, only for the other side to chase him down and insist he continue playing. The spectacle would be hilarious if only the constitution weren’t involved.
Legally, Article 130 (8) of the constitution is clear: a chief minister’s resignation requires neither the governor’s assent nor his consultation. Despite clear rules, our constitutional practice has devolved into petty point-scoring, wrapped in legalese that even a first-year law student could see through.
Beyond the obvious absurdities, these incidents reveal something deeper than political opportunism: a decay of constitutional spirit. The fault lies not with the constitution, but with those who wield it. Our political class refuses to be bound by rules when in power but claims victimhood when out of it.
Constitutions can’t defend themselves. Holding them in place are unwritten practices of restraint and respect. These norms constitute what Harvard professor Laurence Tribe calls the ‘Invisible Constitution’. When lawyers speak of the ‘spirit’ of the constitution, it is these norms they invoke. In 1959, Ivor Jennings called these unwritten norms “the flesh which clothes the dry bones of the law; they make the legal constitution work.”
The strength of a constitutional democracy depends on how faithfully its actors uphold these invisible norms. For a constitution can only proclaim, it cannot execute.
These norms are manifold, but almost all demand that political behaviour advance democracy rather than subvert it. One, under constant attack, is that politicians must recognise the legitimacy of their political opponents. To tolerate disagreement and see each other as equal players in the democratic game.
In each of the two examples discussed in this piece, the governors should have respected the legitimacy of their opponents, accepted defeat and moved on. That would have been consistent with democratic practice, constitutional duty, and the principle that the governor is to be politically neutral.
Yet here we are, in a state where the norm of political tolerance has disintegrated – a collapse visible over the past half-decade as the post-18th Amendment constitutional order unravelled. That order wasn’t perfect, but it gave us peaceful transitions of democratic power for the first time in our history. What replaces it now is an order obsessed with consolidating authoritarian power.
This decay is not unique to Pakistan. Across the world, liberal constitutionalism is eroding as the old guardrails wither. Here, it has reached its peak as the two main political sides see one another as existential threats rather than legitimate opponents. Each sees the other as a traitor. Constitutional rules cannot stand in the way of survival.
In a climate of existential dread, liberal constitutionalism fractures. Pakistan’s post-18th Amendment social contract has broken down. Unless a new understanding is reached and a return to compromise is made, we may no longer have any rules we can believe in apart from naked power.
The blame for this unravelling varies depending on whom you ask, but the record cuts across party lines. From elections marred by manipulation, to governance through ordinances; NAB as a vendetta machine, to delayed elections in defiance of constitutional commands; the stripping of reserved seats, to constitutional amendments passed in the dead of night. Every side has played its part.
When it began and who struck the first blow is a moot point. What matters is how to reverse it. On this current path, people will lose sight of legal certainty, see the constitution as meaningless and see the judiciary as a tool to stamp legitimacy over that which has none.
General Musharraf once quipped that the constitution was just a piece of paper to be thrown in the dustbin. Unless we rediscover the spirit that gives that paper life, his words may yet prove prophetic.
Published in The News International , October 17 2025
