November 18, 2007
A Lesson in American Exceptionalism from Pakistan ChaosBy Christopher D. Geisel
General Pervez Musharraf's November 3, 2007 Proclamation of Emergency and the consequent suspension of Pakistan's Constitution and various "fundamental rights" remind us of America's cherished notion of unalienable human rights and freedom.
Legal minds in and out of Pakistan can argue all they want about whether the current state of martial law is authorized by the emergency provisions of Pakistan's 1973 Constitution or whether it is really an "illegal, ultra-constitutional" measure. But such discussion misses the key point: the "rights" of Pakistani citizens, as described in their now suspended Constitution, are founded on the faulty premise that governments issue rights to their citizens.
The preamble of Pakistan's Constitution contains the seemingly positive statement that:
But there is a big problem here. The underlying premise in the phrase "shall be guaranteed" is that Pakistanis have rights because this document says so. And we also see the caveat "subject to law and public morality," meaning that even these "fundamental" rights are subject to the conditions of man.
Even worse, in the chapter entitled "Fundamental Rights," it is made clear a total of four times that this Constitution has "conferred" rights on Pakistan's citizens. Take this example:
So not only are the so-called fundamental rights of Pakistanis issued to them by a political document, but there is even an exception where these very rights may be suspended by the same piece of paper. Should the people of Pakistan be all that surprised at the current chaos in their country when their notions of liberty lie on such shaky ground? Is it that much of a shock that human rights seemingly derived from force of government have now been taken away by force of government?
Contrast this with our own United States Constitution, the longest-surviving -- and most successful -- government charter in history. Many Americans, when asked where our rights such as the freedom of speech actually come from, may answer that they derive from the Bill of Rights, the first ten amendments to our Constitution. But a careful reading of this Bill of Rights reveals otherwise, highlighting the revolutionary concept on which America was founded.
Not once in the Bill of Rights is there any statement that could imply that human rights have been created on these pages or on the pages of any other document. Instead, these ten amendments begin with the premise that fundamental rights already exist and that government must not infringe on these rights.
Take the First Amendment:
Note that the freedom to exercise religion, the freedom of speech, the freedom of the press, and the freedom to assemble or petition the government are all assumed to exist. This amendment does not create those rights. It does not need to; the rights simply are. The First Amendment, like the others in the Bill of Rights, states what is known as a negative right -- its sole purpose is to prohibit the government from violating the genuinely fundamental rights of the people.
By comparison, the Pakistani Constitution's version of the First Amendment tells a very different story:
With phrases like "shall have the right to" and "there shall be freedom of," it is obvious that a Pakistani citizen's apparent rights have just been granted by the 1973 Constitution. There is nothing "fundamental" about them. Without the document -- now that it has been suspended by Musharraf -- they do not exist.
But then where do the genuine human rights described in the United States Constitution come from? If they existed before the 1787 document was written, who created them?
Did they come from our 1776 Declaration of Independence? No, but that document does answer the question:
Thus our rights are acknowledged to derive from God alone, and therefore man has no power to "suspend" them.
A government based on the immutability of human rights and freedoms that are derived from a creator was a revolutionary concept for the eighteenth century. It inverted in grand fashion the doctrine of the Divine Right of Kings, which had justified the absolute power of monarchs as the will of God. The American experiment would be a government founded on the ideal that human rights are the will of God and that the power to rule can only derive from the people:
But wait: does not the Pakistani Constitution also acknowledge the supremacy of Allah? After all, the main caveat to the freedom of speech in Pakistan is that it is "subject to any reasonable restrictions imposed by law in the interest of the glory of Islam." Even clearer is a part of the document entitled "Islamic Provisions":
So rather than explicitly declaring that certain human rights are derived from a creator, the Constitution of Pakistan does establish a nation-state to be governed by Sharia law. But because the will of Allah is open to interpretation, the document establishes an Islamic Council:
And thus we are back to square one: the rights of Pakistani citizens (as protected by law) are deemed to depend on the scholarly interpretations of an arm of the Islamic state. Instead of the Divine Right of Kings, we have the Divine Right of Islamic Clerics. If human beings could perfectly discern the will of a creator who demanded respect for basic rights and freedoms, then there would be no problem with this construct. But humanity is imperfect.
The authors of our Declaration of Independence acknowledged the imperfection of man's attempts to discern the will of God by taking the interpretation of human rights out of the hands of any mortal -- religious scholar or not. By declaring unalienable rights to be "self-evident" truths, they argued that an examination of the human being -- his innate free will and sense of dignity -- was proof enough that God had endowed us with a right to liberty. Therefore this new United States government would not be in the business of issuing religious decrees, and it could not justify its laws by citing the writings of any clergy (even the Pope himself).
The genius of America's Founding Fathers is in how they were able to embrace the Judeo-Christian principles of human dignity and justice while at the same time rejecting eighteenth century European notions that the Church should be an arm of the state.
Over two centuries after our Declaration of Independence, as a military dictator in Pakistan has declared a suspension of the rights of his citizens, Americans can be reminded to treasure our own exceptional notion of fundamental human rights which, sadly, is still not universally acknowledged.
Of course, there are practical limits to the exercise of our rights in America. But the underlying premise that these rights do exist is never compromised or abandoned. For example, our Fourth Amendment protects our fundamental right against "unreasonable searches and seizures." Therefore, government can search and seize, but it must be reasonable. And the Fifth Amendment, which states that no person shall be "deprived of life, liberty, or property, without due process of law," does allow the government to deprive the people of these things as long as there is due process.
Some may see a discrepancy in the fact that the writ of habeas corpus -- which requires that a prisoner be brought before a court -- was suspended during the American Civil War by President Lincoln and again a decade later by President Grant. But we must note that the United States Constitution describes habeas corpus as a privilege rather than a right and authorizes its suspension during emergencies:
Others will point to the hypocrisy of a nation founded on the principles of unalienable human rights but which practiced chattel slavery and denied voting rights to many groups, including women. And it is here where we must acknowledge that America, while founded on a noble ideal, was never perfect in its defense of that ideal. It took tremendous bloodshed during civil war in the nineteenth century and further political and social upheaval during suffrage and civil rights movements in the twentieth century to redeem the principles on which America was founded.
Some may ask then if the ideals outlined in Pakistan's Constitution were similarly noble, but just similarly corrupted by imperfect men. The first problem with that assertion is that, while America's founders traced human rights to the Judeo-Christian religious tradition, the authors of the Pakistani Constitution traced restrictions on human rights to the Islamic religious tradition. Note again that Pakistani freedom of speech is "subject to any reasonable restrictions imposed by law in the interest of the glory of Islam." So it is the curtailment of free speech that derives from Sharia law, rather than free speech itself. In fact, under Pakistan's Blasphemy Laws -- which are consistent with Sharia law -- criticizing Islam or the Prophet Muhammad is an offense punishable by fine, imprisonment, and even death.
A second and more important issue is whether Sharia law, as it is currently embraced in Islamic states like Pakistan, is even at all compatible with the ideals of liberal democracy and human rights. Can dissent and critique -- elements necessary for free societies to flourish -- ever take root (even in secular arenas) when a society's founding legal principle is that certain criticism is considered unholy? Can consensual and just government based on universal suffrage and equal protection under the law ever coexist with pronouncements by religious authority that are used to justify the treatment of women or non-Muslims as second-class citizens? Can political or religious freedom ever be realized under the rule of a government so entangled with those who purport to officially declare the commandments of God?
The answer appears, for the time being, to be no. But perhaps reformist sentiment throughout the Islamic world will one day prevail in the same way that European reformers slowly brought the corrupt Judeo-Christian religious institutions of the Middle Ages into alignment with the emerging Renaissance and Enlightenment visions of individual human rights -- visions which would ultimately form the intellectual basis for the American Revolution.
Meanwhile, America of today, imperfect as it has been, does stand for our founding ideals of unalienable human rights and freedom, ideals that are not discredited even in the face of human imperfection. And the people of Pakistan, along with all those in the world who fight for liberty, can look to America as an example of what can and should be attained, and can see us as the "city upon a hill" envisioned by John Winthrop in his 1630 sermon and lauded by President Reagan three and a half centuries later.
Our belief that the rights of Americans, Pakistanis, and every other human being in the world can never be suspended by a government of man -- even if that suspension is claimed to be in the name of God himself -- is the essence of American exceptionalism and must be the bedrock principle for just government anywhere in the world.
Christopher D. Geisel is a graduate of the U.S. Air Force Academy and a veteran of Operation Iraqi Freedom. He serves on active duty in the U.S. Air Force. The opinions expressed here are his alone. They do not reflect the official position of the U.S. Government, the Department of Defense, or the U.S. Air Force.