Founding Moments and Resurgent Constitutionalism: The Case of Pakistan
The 1973 Constitution emerged from Pakistan’s first democratic transition. This was a period of global movement towards democratisation,[919] but like many other newcomers to democracy, Pakistan slid back into authoritarian rule in a ‘reverse wave’ in less than a decade.[920] Having come into effect as a permanent constitution, the 1973 Constitution was ‘suspended’ multiple times by military dictators and subsequently amended to legitimate their de facto powers.
In 1977, the notorious coup-maker General Zia-ul-Haq suspended the Constitution and imposed martial law on the pretext of organising fresh elections.[921] The promise of elections was a political ruse, and the Constitution remained in cold storage for several years. Zia eventually ‘revived’ the Constitution in 1985, but only after unilaterally re-structuring government and centre-province relations. One of Zia’s damaging amendments has acquired a nomenclature of its own and refers to the autarchic powers of the President to unilaterally dissolve elected governments.[922] Known as ‘Article 58(2)(b)’, the amendment was intended for subordinating civilian powers to the military executive. It was emulated as a model of presidential government in the early 2000s by another military autocrat, General Pervez Musharraf, who relied on the precedent set by Zia to suspend the Constitution, subvert the judicial process for regime legitimation and subsequently revive the Constitution in a substantially altered form.[923] Ironically, however, the transitional decade between the military regimes of Zia and Musharraf bore the heaviest brunt of Article 58(2)(b). The dissolution of three popularly elected governments in quick succession between 1988 and 1997[924] demonstrated the monumental impediments in rolling back military-imposed changes to the Constitution. In the first three decades of the Constitution’s existence - from the time it was enacted to the time it was revived by General Musharraf in 2002 - it was largely in a state of suspension for, cumulatively, a decade (1977-85 and 1999-2002), and in a state of constitutional deviation for another two decades (1973-77 and 1985-99).Thus, the life cycle of the 1973 Constitution has been ‘nonlinear, fitful, ambiguous and protracted’. [925] Kalhan’s study of Pakistan’s constitutional politics is a step in the right direction for understanding the phenomenon of constitutional evolution in a wider post-colonial context. Kalhan argues that Pakistan is an example of gray zone constitutionalism’, in which the military engages in a ‘recurring, iterative process of transformative preservation, by which its own power and that of its affiliated interests have been extended and entrenched into periods of civilian rule’.[926] Far from being a condition peculiar to Pakistan, this ‘gray zone’ is common to a large number of states undergoing political transition. Political scientists have persuasively demonstrated the non-linearity of the democratisation process since the 1970s, and the complex path dependencies and local contexts that ultimately shape this process. For instance, Carothers notes that many ‘transitional countries’ have entered a ‘political gray zone’, in that they are ‘neither dictatorial nor clearly headed toward democracy’ [927] Similarly, Diamond refers to the ‘democracy rollback’, noting a widespread phenomenon in relatively new democracies of a reversal in the initial gains towards democratisation.[928] Diamond’s data also show an ‘unprecedented growth’ since the 1970s in ‘hybrid regimes’, namely those that are ‘neither clearly democratic nor conventionally authoritarian’[929] Constitutionmaking in ‘gray zones’ and ‘hybrid regimes’ is thus inherently complicated and does not fit neatly into well-defined temporalities.
There is, of course, a great deal of pessimism about the democratisation potential of grey zones and hybrid regimes. With respect to Pakistan, some argue that the country is unlikely to recover in the foreseeable future from setbacks to the democratic process that occurred in the 2000s.[930] Others assert with bewildering certainty that Pakistan’s ‘illiberal democracy' is an ‘end-state’.[931] Still others pontificate over Pakistan’s ‘sham constitution’ in the conviction that ‘naming and shaming’ can be ‘an effective strategy for achieving positive change in and of itself’ [932] With few exceptions, there is little recognition of the contribution of the 1973 Constitution as an instrument of constitutional struggle towards a democratic order.
However, while there is scepticism about the democratic development of grey zones, there is growing scholarly appreciation of the empirical diversity in methods of constitution-making across political contexts. Conscious cross-fertilisation of these two fields of knowledge would help immensely in terms of understanding constitution-making in grey zones. Some recent works on constitutional change in transitional contexts point in this direction. They refer to the ‘achievement of constitutionalism’,[933] ‘transitional constitutionalism’[934] or ‘constitutional tipping points’[935] Implicit in these concepts is the idea that far from being idealised normdescriptors, constitutions are instruments of contestation and change towards a normative constitution in transitional contexts.
What does resurgent constitutionalism look like in Pakistan? Jackson’s typology of constitution-making, derived from diverse contexts, provides an instructive counterpoint to the case of Pakistan. It encompasses three models of constitutional origination - ‘quick clean break’, ‘incremental’ and ‘interim’[936] In some ways, the making of the 1973 Constitution resembles Jackson’s ‘incremental’ constitution, in which a constitution is reconstructed over a long period of time in a post-conflict setting through open-ended and reflexive processes of informal negotiations, legislative actions and judicial interpretation - as in the cases of Poland and Hungary.[937] At the same time, it resembles Jackson’s ‘interim’ constitution, in which a constitution is created through a staggered process with various predetermined mechanisms for different constitution-making activities - South Africa being a paradigmatic example of this kind of constitution-making process.[938] But neither model fully captures the cyclical nullification and revival of the 1973 Constitution.
Unlike Jackson's ‘incremental' constitution, the 1973 Constitution was not intended to be provisional. And unlike Jackson's ‘interim' constitution, the 1973 Constitution was suspended by a dictator only a few years after promulgation.Pakistan's resurgent constitutionalism has followed a different path. It is incremental in that it is rooted in a ‘permanent constitution' that has been buffeted through successive cycles of suspension-amendment-revival by de facto regimes, surviving at times only in a formal sense, to be salvaged and reclaimed again through a return of electoral democracy. Thus, the same constitutional document has been heavily contested and negotiated along the way. It has experienced multiple iterations of extra-constitutional change, but also compounding periods of democratic reconstruction. This incremental process has allowed for extended public discussion on the Constitution and its meaning over a significant period of time. It has provided a common platform for invoking challenges to and mobilising resistance against competing norms that are antithetical to democratic constitutionalism - including military authoritarianism and constitutional theocracy - and in the process consolidating incremental victories for democracy. Authoritarian forces have also instrumentalised the Constitution, but have refrained from abrogating it for fear of provoking a political backlash.[939] Thus, the Constitution is the cornerstone of Pakistan's political discourse as well as the central site of struggle for constitutionalism, notwithstanding the ‘complex and multidimensional currents of constitutional thought and practice in the country'.[940]
Deriving insights from Pakistan’s historical experience, I make three theoretic arguments regarding founding moments in grey zones. Foremost, I argue that in order for a founding moment to be consequential to constitutional development, it need not have revolutionary origins or break completely with the old legal order.
In a post-colonial milieu where the military is a dominant institution and has all too often invoked doctrines like ‘revolutionary legality' and ‘necessity' to misappropriate power,[941] insisting on a sweeping and radical break with the past would force proponents of constitutionalism to choose between the extremes of impossibility and self-annihilation.[942] Further, I argue that a founding moment can be reduced neither to the particularities of the originating processes of a new constitution nor the substantive design of a constitution. A founding moment - and indeed constitution-making in general - is endogenous to and contingent upon political conditions. What imbues a constitutional moment with the normativity of a ‘founding’ is its historical grounding in a broad democratic movement as well as its resurgence or the degree to which it acquires social and political ownership for the transition to constitutionalism over time. Finally, I argue that recognising a founding moment in grey zones is an exercise in retrospective reflection. Whether the moment transpires in a short period of time or through a ‘quick clean break’, or whether it extends across a substantial period or happens incrementally over successive periods of regression and revival, the process of determining whether it matters as a concrete reality is inherently intertemporal.[943]The following section deconstructs the abstract notion of a founding moment in the historical context of the 1973 Constitution, and contemplates how the making of the Constitution has mattered for constitutional change in Pakistan - specifically, how it has provided a tangible rallying point for upholding a democratic-constitutional order against ‘constitution-wreckers’.[944]
III.