By Jivesh Jha–
Continuing a series of examination on different legal and constitutional provisions, let’s look into the arrangements of preamble in Constitutions of member states of South Asian Association for Regional Corporations (SAARC) this time. Having gone through the preambles of Constitutions of South Asian countries, it became clear that the preamble sets out the objective which the legislation has intended to achieve. These democratic countries are at even to envisage that their constitution is supreme law and it’s enacted for garnering the principles of democracy and socialism.
The cornerstones are set by the two arrangements in particular. First, the constitutions have emphasized on sovereignty and democracy lying on the bedrock of principles of socialism and liberty.
Second, except India and Nepal, the remaining SAARC-member states have given an overwhelming emphasis to religious sacred faiths, while pledging themselves to be governed in accordance with their holy religious scriptures.
The scholars and legal pundits unanimously believe that the preamble is a short introduction to the statute and helps to understand the legislative intent. It’s often called that preamble is the window of any Act which explores the main objective and declares the source from which any Act comes, viz., the people of concerned country. The much-acclaimed jurist Dr JN Pandey, who has authored scores of commentaries, in his scholarly book Constitutional Law of India writes that “preamble is the key to open the mind of makers.” So, the Constitutions of these emerging powerful countries have unanimously accepted that preamble is the ‘place of pride.’
The Constitution of India (COI) being the oldest in SAARC states opines that their preamble has a goal to ‘constitute India into a Sovereign Socialist Secular Democratic Republic’. The preamble has intended to secure social, economical and political justice to all the citizen of India while maintaining that justice will be sabotaged when ignored the true spirits of liberty, equality and fraternity.
On the other hand, Nepal Constitution being the youngest Constitution of the world which was enforced last year heralds in its preamble that the endeavor of their Constitution is to protect and promote unity in diversity, social and cultural solidarity, tolerance, and harmonious attitude. The preamble further expresses commitment to create the bases of socialism by adopting the democratic norms and values. It also expresses determination to create an egalitarian society on the basis of principles of proportional inclusion and participation to ensure equitable economy, prosperity and social justice.
Although the preamble signifies that the Constitution being the most progressive document, the Madheshi parties, who claim themselves of championing the agendas of plain dwellers, perceive it with uneasy eyes.
“We find the document biased. We can see biasness from the very beginning part of constitution as even the preamble failed to recognize the essence the Madhesh movements. It has succeeded enough to acknowledge a decade long Maoist insurgency, and people’s movements but reluctant to acknowledge the Madhesh movements that gave life to the federal democratic republic set up on Nepali soil,” insists Manish Suman, General Secretary of Rajendra Mahato-led Sadbhavana Party.
“The major parties, who claim themselves of being definer of reality, aborted the spirits of Madhesh movements. Surely the wilderness of the major parties would lead the country to nowhere.” Suman further says that the objective of preamble to create an egalitarian society resting upon the principles of proportional inclusion has been impaired when it comes to appear that the spirits of Madhesh movements were disallowed to find space in country’s fundamental document.
“Though it’s a political issue rather than issue of inclusion, it would have better had the preamble of the Constitution acknowledged Madhesh movement like other movements. It’s an undisputable fact that the Madhesh movement established federalism in Constitution which is a significant issue of the new statute,” opines Navin Khatiwada, a legal journalist who is associated with ‘Republica’ Daily in Kathmandu.
Showing satisfaction on the views of Suman and Khatiwada, Supreme Court advocate Dipendra Jha argues that Madhesh cannot see their face at the entrance of the new Constitution. “The dignity of Madhesh movement should be recognized for wider ownership of the new statute. It’s beyond any iota of doubt that the Madhesh agitations spearheaded the notion of federalism and set a milestone for the same to breathe in the midst of Nepali democratic structure. In one way or the other, preamble recognized the outcomes of the movement—federalism and republicanism–but not the movement itself. What the heart (preamble) of the new statute does describe very well is the roller-coaster of armed struggles and people’s movements which had little to do with federalism,” adds advocate Jha.
Unlike, other South Asian countries, the preamble of Indian Constitution does not mention about the glorious struggles and movements carried on Indian soil to onboard the popular democratic structure. When asked the reason being of it, faculty of international law at Uttaranchal University, Dehradun Mrs. Pallavi Gusain argues that the architects of Indian Constitution concentrated on establishing the basic fundamentals for the would be-governments. “So, rather mentioning about our glorious victory over British dominance, the constitution makers tried to put their best foot forward to institutionalize the basic fundamentals for quickening the pulse of democratic federal set up” maintains Gusain.
“The cream of the crop of Indian Constitution is ‘it’s a bag of borrowing’. In a bid to rule out the possibility of precarious situations and dissident voices, the framers underscored the need of taking irrefutable ingredients from other countries’ laws. The major breakthrough has been set by some of the reflections of legal provisions of USA, UK and Ireland. And, it’s definitely a class apart approach as it offers no rooms for tasting the bitter grapes in coming days,” opines Mohit Negi, another faculty of Constitutional Law at Siddhartha Law College, Dehradun.
Asserting that the principles of democracy, freedom, equality, tolerance and social justice would be secured as enunciated in Islam, the preamble of Pakistan Constitution envisages that ‘sovereignty over the entire universe belongs to almighty Allah alone, and authority to be exercised by the people of Pakistan within the limits prescribed by Him as a sacred trust.’ Laying over emphasis on Islamic worldviews, the preamble further sets out the objective of Constitution is to enable the order for Muslims to live their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the holy Quran and Sunnah.
In its 2-page long preamble, Pakistani Constitution has also envisioned to let the country attain an honored place in international forums and “make full contribution towards international peace and progress and happiness of humanity.”
“The over emphasis on a particular religion and making tall promises to transform the country on the basis of a particular religious worldviews is obviously not a healthier approach. In what being seen as Pakistan does not welcome the people of other religious faiths, the preamble itself reflects the mindset of the Pakistani people, who are not ready to give a sidelong cuddle to the people of other religious beliefs,” further adds Professor Mohit Negi.
Another Islamic country Afghanistan’s Constitution’s preamble starts with praising “Allah, the cherisher and sustainer of worlds.” The preamble has taken goal to observe the United Nation’s Charter as well as Universal Declarations of Human Rights (UDHR) to foster democratic orders. Like Pakistan, the preamble also sets out an objective to regain Afghanistan’s appropriate place in international family.
Pledged to stand differently, the Maldivian Constitution was reluctant to give space to preamble. However, Constitution of Islamic Republic of Maldives-2008, which contains 301 Articles, sets out an objective to give Sharia jurisprudence a place of pride. The Constitution envisages that Islam shall be the base of all laws.
Noted, the legal provisions of Maldives and other Islamic countries give air to retributive and deterrent modes of punishment to flourish.
Similarly, the introductory remark of preamble of Bangladesh Constitution also finds consonance with other Islamic countries as it also went on to proclaim that it shall be the goal of the statute to develop absolute trust in almighty Allah. “It shall be a fundamental aim of the state to realize through the democratic process to socialist society, free from exploitation– a society in which the rule of law, fundamental human rights and freedom, equality and political, social and economic justice will be secured for all citizens,” reads the preamble.
Meanwhile, expressing a pledge to order the Bhutanese life in pursuance of principles of Buddhism, the preamble of Bhutan Constitution envisions that efforts will be taken to strengthen the sovereignty, blessings of liberty, ensuring justice and tranquility, and to enhance the unity and happiness as well as well-being of the people for all-time.
Similarly, another Buddhist country Srilanka’s Constitutions’ preamble sets the goals of making the country a democratic socialist Republic one. The preamble also takes an objective to ensure a dignified life for the entire citizen where there will be freedom of individuals and just and fair society.
While talking about the unanimity of opinions in preambles of Constitutions, almost all countries’ Constitution have acknowledged the people’s movements, armed struggles and among other modes of movement which played a pivotal role to onboard the democratic process. Nonetheless, the Maldivian Constitution stood indifferent to give room for preamble.
Similarly, though the preamble of Indian Constitution does not expressly mention about movements carried to thwart the British regime, it has broadly mentioned the objective to make India a secular, socialist, sovereign democratic country with a view to keep the external intervention in domestic affairs at arm’s length.
Even as the preambles of South Asian Constitutions enjoy more or less the similar currency, they are yet to knock the boundaries resting upon injustice, bigotries, unemployment and the moves inconsistent to legal spectacles.