Founding Moments and Pakistan's ‘Permanent Constitution' of 1973 because of its abortive experiments with constitutional change.
In this discursive milieu, the towering and revered historical figure of Muhammad Ali Jinnah - the founder of Pakistan and a constitutional lawyer himself - personifies a deeply idealised but unfulfilled vision of Pakistani identity that continues to grip the collective imagination.
Not unlike the popular appropriation of founding visions elsewhere, the refrain of‘Jinnah's Pakistan'[857] finds traction across the socio-political spectrum, from those espousing an Islamic state[858] to those arguing for a secular and pluralist state.[859]Amid the din of competing visions of Jinnah's Pakistan, the despair of a lost founding, the nostalgia for Jinnah and his principled constitutional politics, and the hope for a revival of Jinnah's vision in the future, there is little scholarly recognition of the current constitutional framework of the country: namely, the Constitution of 1973. Despite being a watershed historical event, the making of the 1973 Constitution remains chronically understudied almost half a century later. The period of constitution-making between 1968 and 1973 was tumultuous, yet one of constitutional trailblazing. This was a time when a countrywide social movement brought down the first military dictator;[860] when the country held its first democratic elections based on adult universal franchise;[861] when it experienced the shock of civil war and lost more than half its population with the partition of East Pakistan;[862] when elected leaders first took the reins of government;[863] and when a constitution was drafted for the first time by an elected constituent assembly.[864] The lack of attention to the 1973 Constitution is partially a result of the impoverished state of scholarship among lawyers and legal historians in the region.
More importantly, it is a result of the cyclical de-legitimation of democratic politics - and, with it, the 1973 Constitution - by the military governments of General Zia (1977-88) and General Musharraf (1999-2008). These and other political upheavals have led many to be deeply critical, even cynical, about the legitimacy, utility and relevance of the Constitution to democratic norm-building.[865]Hence, it is with some trepidation that I set myself to what seems like an intellectually daunting task: envisioning the constitutional bargain underlying the 1973 Constitution as a founding moment of constitutionalism in Pakistan. This chapter advances the argument that the creation of the ‘permanent’ Constitution of 1973 is central to Pakistan’s constitutional identity. I make this claim notwithstanding the failure attributed to the 1973 Constitution in forestalling military coups,[866] the repeated ‘suspension’ of the Constitution and its bill of rights,[867] and the many ‘constitutional deviations’ introduced into the Constitution by dictators.[868]
The 1973 Constitution is Pakistan’s only surviving constitutional settlement that is both democratic in its origins and has the imprimatur of being a ‘consensus constitution’ in an otherwise divisive political context.[869] Moreover, it is on the pivot of this Constitution that diverse constituencies in support of democracy and constitutional rights have emerged over the past four decades. The Constitution is the symbolic anchor for the survival and self-perpetuation of democratic political parties.[870] It is also the source of a uniquely South Asian constitutional rights jurisprudence, known as ‘public interest litigation’ (PIL), which has enabled a wide array of constituencies - involving citizen groups and non-governmental organisations, the media, government employees, lawyers, politicians and political parties - to engage with and construct a rights-based discourse through the courts.[871] Furthermore, it is the normative framework from which the judiciary - one of the most politically interventionist in the world - derives its powers of judicial review.[872]
The 1973 Constitution acquires legitimacy as the founding moment from factors that are grounded both in the past and in the present.
They include the historic political conditions of the birth of the Constitution; a broad identification with the Constitution at the time of its making; evolving political support for the Constitution over time; mobilisation around the Constitution for political resistance through constitutional means; and a reconstruction of the current political system on the substratum of the original Constitution. Accordingly, I argue that the Constitution must be judged not on the basis of its substantive flaws or historical failures, or on the basis of continuing impediments or challenges to constitutionalism. Instead, it ought to be appraised on the basis of its instrumental value in enabling and expanding constituencies for constitutional transformation and sustaining opposition to ‘extra-constitutional’ interventions.[873] In other words, the 1973 Constitution is a central arena for pro-democracy groups and rights activists to assert their constitutional rights and ‘to devise instruments of empowerment to strengthen their endeavours’.[874] It is in this consequentialist sense that the 1973 Constitution is a founding moment in Pakistan. This consequentialist understanding does not negate some very valid criticisms of the Constitution and the politics around it; rather, it underlines the need for continuing and strategic engagement with the political process for entrenching constitutional norms.This conceptualisation deliberately deviates from the idealised eighteenthcentury Western European notion of a founding moment as an immediate and radical break with the ancien regime?[875] It also departs from normative characterisations of the American founding as higher law-making that takes place outside the regular constitutional process through the intense participation and deliberation of the people.[876] Not only are these traditional formulations of founding moments the subject of mounting critique in their own contexts, using them as yardsticks for constitutional norm-building in present-day post-colonial societies is both misconceived and counter-productive.[877] The alternative notion of a founding moment I propose is ‘instrumental’ (as opposed to self-enforcing), ‘resurgent’ (as opposed to entrenched) and ‘negotiated’ (as opposed to populist).
This calls for a reflexive relation between models of constitution-making and political and historical conditions.[878] Indeed, viewed on a wider scale, a constitutional framework that accumulates legitimacy over time through periodic resurgence allows for the articulation of a more typical present-day political model for rethinking founding moments.[879] It is to this end - to engage with a political model on founding moments that has resonance with many contemporary states in political transition - that I use Pakistan’s example as broadly illustrative. I remain cognisant that this is only one amongst a plurality of observable processes of constitutional origination.The chapter is structured as follows. Section I outlines the original 1973 Constitution and its prominent features within a historical framework of inquiry. Section II shifts the focus from the textual to the conceptual. It makes the fundamental argument that the 1973 Constitution is a founding moment in constitutionalism. In making this argument, section II attempts to situate Pakistan’s trajectory within a scholarly framework of political and constitutional development, and lays out the contours of a founding model of ‘resurgent constitutionalism’ in similar contexts. It puts forward two essential elements of a founding moment - namely, the ex ante conditions of constitution-making and the ex post endurance of a constitution - and reflects on how Pakistan’s historical experience is important for thinking about founding moments generally. Section III presents a historical analysis of constitution-making in Pakistan to illustrate the ex ante and ex post elements of its founding moment.[880] On a more general level, it reinforces the double-barrelled quality of a founding moment as both a watershed historical event and a process of constitutional consolidation. Section IV offers some concluding thoughts on theorising resurgent constitutionalism in transitional contexts.
I.