Preface

The contrast between India’s record of fidelity and Pakistan’s less steadfast relationship to constitutionalism is oftentimes the basis prob- lematising Pakistan’s very existence.

In line with this inescapable narrative, the little scholarly attention that has been directed at constitutional law in Pakistan deals primar­ily with the elaboration of an emergency jurisprudence. A number of cases spanning the decades of Pakistan’s existence in which the judi­ciary has conferred legitimacy upon coup d’etats and forged novel doc­trine, legal bridges, to sustain a broader legality across regime changes are associated with such a jurisprudence. There is no denying that this record is awe inspiring for its inventiveness and the ease by which legal and political domains are collapsed, so that the attention it has received is not altogether surprising. However, these cases around coup d’etats and emergencies cannot be the stand-in for understanding a broader legality in Pakistan.

These cases are not read here together as either exceptional or emblematic of judicial complicity or capitulation. Rather, situated in relation to developments in broader institutional fields and struggles, they are simply indicative of the centrifugal tendencies that have long been associated with the Pakistani state.

Not only by acts of constitutional abrogation but more consequen­tially because of the constitutional amendments that follow in train, there is no simple line to divide emergency and a broader constitutional jurisprudence. In the landscape of Pakistani constitutionalism, emer­gencies are not simply time bound and coincident with martial law, but also must refer to the selective application of constitutional protections to diverse populations within Pakistan. At times this is because of the operations of a plural legality and at others, because of territorial exemptions written into the Constitution itself.

Constitutionalism in Pakistan, as elsewhere, must necessarily be understood historically, materially and at the interstices of always com­peting ideological structures. Thus, a deeper historicity is offered in the first two chapters, to organise the framework for understanding more thoroughly the interpretations and elaboration of the 1973 Constitu­tion, which forms the bulk of what is studied in the remainder of the book. While there is no single relation of determination or causality that can be suggested here between the formal apparatus of law and constitutionalism and the material organisation of power and resources within Pakistan, it is important nonetheless to be more precise about the manner in which diverse domains have been organised in relation to each other.

As a historical starting point, important for understanding contem­porary constitutionalism in Pakistan are the violent acts of territorial conquest, the offer or denial of state patronage, and the relative prior­ity conferred upon regions and populations within a colonial politi­cal economy. Unequal relations established under colonial rule have continually impacted on the regimes of management through which the central government has sought to effect rule.

The continuities are expressed in the post-colonial Pakistani state in multiple ways. The second chapter identifies three predominant features that have had everlasting impact on the shape and abidance of formal constitutionalism in Pakistan. These include the marginalisation of regionalist demands, a propensity for over-heavy administrative cen­tralisation, and the shifting place of Islam as normative guidance for the nation. The distributions engendered by these have influenced the shape of three successive constitutions, in 1956, 1962 and 1973. The tendency to see independence from colonial rule as marking a defini­tive break, and the act of framing a constitutional accord as the means of determining the line between legitimate and illegitimate exercises of power alone, is already somewhat disproved in accounting for the continuities between them and what existed prior to independence. For dominant classes in the state, the achievement of independence was significant for ameliorating their position of disadvantage against the colonisers, but for the larger populace this transition was ultimately inconsequential for addressing the deeper structuration of power in the state.

While there is a clear debt and selective borrowing of some of the schematic elements that percolate through the critical literature on Pakistani state power in this volume, there is also an attempt to sub­tly undo the extreme determinism of accounts that see an absolute immovability of power in spite of constitutional adjudication.

If not always central to organising conflict amongst national elites or between them and the spokespersons of regional interest or a stat­ist Islamism, the constitutional structure and the broader apparatus of legality is always nonetheless at play. At times, alongside an understand­ing of specific provisions and their elaboration through judicial review, extensive descriptions of such phenomenon are presented in parallel to illustrate the slippages and omissions.

As already partly described above, the first two chapters of this book chart the incipient assembly and early organisation of the Pakistani state. The history in these first two chapters is intended to acquaint the reader with particular strands of context entwined in the inheri­tance of a particular legalism and system of government. To a greater extent than is the case in some of the other volumes of this series, the remainder of this book foregrounds major features of the 1973 Con­stitution, its multiple alterations and the jurisprudence generated. If the Constitution is a mechanism of control and containment, it has already encoded a dispensation towards the conflicts investigated here and its further abrogations, mutations and revisions are invariably sites where these conflicts are opened up again.

The chapters are comprehensive rather than concise and a further set of contextual features are investigated that reflect both changes in the social sphere as well as those reflected in official policy.

Chapter 3 presents a summation of the rules that govern the legis­lature, but, importantly seeks to expose the myriad ways in which the political sphere has been reshaped by successive regimes. Chapter 4 elaborates those features of the Constitution that allow for heavy executive centralisation, including emergency powers and the presiden­tial powers to dissolve assemblies and enact legislation through Ordi­nances. It also traces the history of executive consolidation through military and civilian regimes and some recent movement by the higher judiciary to introduce principles of accountability into executive func­tioning. Chapter 5 focuses on the role of the judiciary as constitutional arbiter. By highlighting the principle of jurisdiction as conferred by the Constitution and law as the central motif of this chapter, a con­troversial history that includes both a wilful abidance of limitations on judicial review as well as more recent attempts to expand the powers of review is illustrated.

That the 1973 Constitution did not successfully accommodate regional and ethnic concerns through the federal formula it elaborated is made apparent by the passage of the Eighteenth Amendment to the Constitution in 2010. This package of constitution reform was intended to devolve greater powers to the provinces and Chapter 6 investigates the division of powers between federating units and the centre both prior to and after 2010. It also illustrates some instances of continuing conflict within the federation and the formal and informal aspects of federalism that intersect the grievances over representation and resources driving these conflicts. Chapter 7 provides an overview of the fundamental rights that are accorded under the 1973 Constitu­tion and the primary interpretive doctrines that are employed in their adjudication. Two detailed cases studies of the evolving jurisprudence of particular fundamental rights are undertaken; the first of protec­tion against sex-based discrimination and the second pertaining to constitutional safeguards accorded to persons preventatively detained by the state. The final chapter focuses on the alterations made in order to impart a more Islamic character to the country’s legal system. Most of these changes can be dated to Zia-ul-Haq’s reign. These include the elevation of the Objectives Resolution to the status of a justiciable instrument of the Constitution, the establishment of a parallel Shariat court system and the enactment of various Islamic laws. The develop­ments that follow these constitutional incorporations and the particular impact upon religious minorities and women are charted in this chapter.