‘Permanent Constitution’ as a Founding: Ex Ante and Ex Post
The resurgent model of founding moments has ex ante and ex post elements: ex ante in the sense of historical conditions that enable an unprecedented democratic consensus; and ex post in the sense of post-enactment exogenous struggles to entrench constitutional norms.
The ex ante conditions in which the 1973 Constitution is grounded relate to a series of events beginning in the late 1960s and culminating in the actual drafting of the Constitution between 1971 and 1973. The late 1960s was a period of major socio-economic flux. The military experienced its first political backlash in the Indo-Pakistan conflict of 196 5.[945] By 1968, the deteriorating economic situation resulting from this conflict, combined with rising discontentment over regional disparities and political oppression, put in motion a wave of popular unrest across Pakistan against Ayub Khan’s military regime.[946] A number of different social and political movements, including students, workers, and new and revived political parties, catalysed widespread agitation against the regime.[947] This ‘antiAyub movement’ compelled a transfer of power to another military strongman, General Yahya Khan, who immediately imposed martial law and abrogated the 1962 Constitution.[948] Growing political pressure on the military eventually led
to the first general election in 1970 based on universal adult franchise. The 1970 election is widely accepted as the most free and fair in Pakistan’s history[949] and marked the first formal victory for pro-democracy forces. The electoral winners within each wing won significant majorities: the Awami League in the East and the Pakistan People’s Party (PPP) in the West.[950] However, at the same time, this East-West divide was exploited by the military to its political advantage,[951] resulting in a military operation in East Pakistan, the secession of the latter with military and diplomatic aid from India, and finally the retreat of the Pakistan military in 1971.[952] Paradoxically, this phase of deep crisis opened up a critical window of opportunity for constitution-making.
Where the country had struggled to create a permanent constitution for almost a quarter of a century because of the East-West imbalance and the political dominance of the military, the removal of these impediments in the aftermath of East Pakistan’s secession enabled a constitution to be made within a short span of fifteen months. Regardless of the many flaws in the process, the outcome was an unprecedented constitutional settlement.[953]In complete contrast to past constitutions, this consensus imparted a high degree of democratic legitimacy to the 1973 Constitution. Yet, the populist ex ante context and the consensus producing the Constitution were not sufficient conditions for ensuring the long-term survival of the Constitution. The evolution of social and political support for the Constitution over time is a major determinant in explaining the resurgence of the Constitution.
Ironically, the Constitution suffered its worst setbacks during the early phase of its life, starting with the rapid centralisation of power by the majoritarian PPP government and leading to General Zia’s military coup in 1977.[954] In 1979, billions of dollars of military aid poured into Pakistan from the US and Saudi Arabia, setting the country on a path of religious radicalisation to resist the Soviet invasion in Afghanistan.[955] From 1977 to 1984, the Constitution remained suspended and the Constitutional Courts were barred from exercising judicial review powers.[956] The Constitution was revived after extra-constitutional amendments in 1984 to reconsolidate the military’s political control prior to elections.[957] However, what is often missed in this oft-regurgitated narrative on Zia’s defacement of the 1973 Constitution is the fact that the revival of the Constitution was not merely an act of political gratuitousness or, alternatively, regime legitimation. On the contrary, the dictator was compelled to change tack because of unrelenting opposition against his regime.
One powerful locus of this opposition was the massive, populist left-wing political alliance of major political parties known as the ‘Movement for the Restoration of Democracy' (MRD).[958] The central demand of the MRD was the restoration of the 1973 Constitution,[959] and it was instrumental in mounting pressure on Zia to resuscitate the constitutional process and hold elections, and to thereby force open institutional avenues for political contestation.Zia's death in a mysterious plane crash in 1988 paved the way for another transition to civilian rule. Tenuous as this transition was, it nonetheless brought about two major transformations that catapulted the Constitution to the centrestage of politics. One was the political rise of the judiciary and the other was a deepening of political party identification with the Constitution. The judiciary's power derived from two main sources in the Constitution: the Fundamental Rights[960] and, ironically, the presidential power to dissolve governments under Article 58(2)(b). The revival of the electoral process created the space for the courts to re-invent and propagate their role as custodians of a new, democratic order through judicial activism.[961] In the process, they evolved jurisprudential tools like PIL to ensure their institutional survival and enlarge their capacity to intervene in political questions. Alongside this, the involvement of the courts in dissolution cases under Article 58(2)(b) empowered them to judge the fate of elected governments.[962] The politics of the 1990s was thus crucial in moulding the role of the courts as mediators between the deep state and civilian political parties - an institutional trend that persists up to the present day.[963] Political parties also emerged as important political forces in the 1990s.[964] They boldly invoked Fundamental Rights in the courts against military encroachment in politics,[965] removed Article 58(2)(b) from the Constitution through a unanimous vote in parliament in 1997[966] and jockeyed for leverage in the courts through strategic judicial appointments and court-packing.[967] That all these contestations were anchored in the 1973 Constitution was a major factor in enhancing the political ownership of the Constitution.
In 1999, General Musharraf overthrew a civilian government in a military coup. Musharraf suspended the 1973 Constitution, purged the courts for regime legitimation, marginalised political parties, sponsored new parties and alliances, re-inserted Article 58(2)(b) through a fresh set of unilateral constitutional amendments in 2002 and engineered elections on the basis of the revived but heavily amended Constitution.[968] However, unlike in the 1980s, Musharraf had to contend with a burgeoning media, an activist judiciary, and international pressures for rule of law reform and democratisation.[969] The fragile state of the regime became apparent in 2007 when the Supreme Court's constitutional challenges to Musharraf - grounded in the Fundamental Rights jurisprudence[970] - provoked the dictator to move the process for the Chief Justice's removal. This event ignited a large-scale street mobilisation that was spearheaded by lawyers, but was, importantly, supported by a host of other actors, including political parties, the media and civil society organisations, that cohered around the rhetoric of restoration of the Constitution and the rule of law to depose Musharraf. This ‘Lawyers' Movement', as it came to be known, culminated in fresh elections, a new democratic government, the re-instatement of the judges and a humiliating exit of the military from politics.[971]
The transition stimulated by the Lawyers' Movement led to a period of constitutional rehabilitation. The most prominent feature of this period was the restoration of the 1973 Constitution to its original form by the landmark Eighteenth Constitutional Amendment.[972] The Eighteenth Amendment was introduced by the first post-Musharraf civilian government and received unanimous parliamentary approval in 20 1 0.[973] It modified or substantially rewrote over one-third of the Constitution with the overarching objective of reversing illegal constitutional amendments since the Zia era, and is arguably the most crucial political consensus in Pakistan since the making of the 1973 Constitution.
The provision-enhancing changes in the Amendment include the removal of Article 58(2)(b), the restoration of a semi-parliamentary system with more powers to the Senate, the establishment of an independent and permanent Election Commission for conducting elections, the strengthening of judicial tenure and mechanisms for judicial appointments, and the expansion of judicial review powers through the new Fundamental Rights.[974] Further, the Amendment has made significant strides towards a decentralised federation, devolving some highly important issues to provincial governments[975] and, to a more limited extent, to local governments as envisaged by the original Constitution.[976]Developments in the aftermath of the Eighteenth Amendment have edified the normative relevance of the Constitution. These include the completion of an elected government’s tenure for the first time in Pakistan’s history followed by a peaceful electoral transition in 2013; peaceful transfer of power by two army chiefs since General Musharraf; the completion of tenure of five Chief Justices of the Supreme Court since the retirement of Chief Justice Iftikhar Chaudhry in 2013; the re-distribution of a larger proportion of national revenues to the provinces and the re-allocation of interprovincial shares in favour of historically marginalised regions; and the devolution of power to the provinces and the operationalisation of local governments through elections. Although the Eighteenth Amendment is by no means an uncontested and irreversible reality - especially given the abiding civil-military imbalance - these are nonetheless far-reaching political shifts, accompanied by major institutional overhauling, and signify a deepening of constitutional accommodation.
The following section summarises the main theoretical insights on founding moments based on Pakistan’s experience with constitutional evolution.
IV.