Rethinking Founding Moments: What Pakistan’s Experience Demonstrates
The making of the 1973 Constitution is a case of resurgent constitutionalism. This process of periodic resurgence shares many attributes with diverse examples of constitution-making in grey zones around the world.
It neither fully breaks with the past, nor is it immediately entrenched through an open process of public participation. It is characterised by protracted and tenuous non-linear progress, at times degenerating into a reverse wave before accumulating any positive gains for constitutionalism. The paradox that resurgent constitutionalism raises for founding moments in grey zones is not merely that the enabling conditions of constitution-making are also those constraining constitution-making;[977] the real paradox is that contexts that are new to a democratic constitution are also those that invariably need an incubatory period for evolving constitutional norms. Thus, I have argued that ‘founding moments’ are key periods of democratic constitutionmaking from which the conditions of constitutionalism emerge temporally in grey zones, largely irrespective of judgements about the original constitution being ‘good’ or ‘sham’. I have further argued, as a necessary corollary to this, that a founding moment in a transitional context has two elements: ex ante historical and political conditions of constitution-making - that give the constitution its initial democratic legitimacy - and ex post resurgence and revalidation of the constitution over time.One of the big contributions of the present case study on Pakistan’s founding moment to theories of constitutional origination is the centrality of the ex post element of constitution-making. The almost exclusive focus on the ex ante element, as well as the particularities of the immediate process of constitution-making in extant theories of founding moments, is not only of limited value to but also deeply ignorant of the political and structural conditions obtaining in contemporary grey zones.
The theoretical privileging in constitutional foundings of the ex ante notions of a clean break with the past and the immediate entrenchment of constitutions does not coincide with the historical reality of constitution-making in new and transitional democracies. A constitution that is expected to not only define the rules and norms of the political game but also to provide the moorings of democratic transition necessitates an ex post struggle for constitutional entrenchment. The ex post pushback against anti-constitutional and anti-democratic forces is the concrete test of a constitution’s superlative value as a founding. Thus, I have emphasised the importance - indeed, the necessity - of the ex post element to a founding. It is only the ex post progress - of what is always a nominal constitution at birth to a normative one over time - that legitimates any constitution through an iterative process of negation, resurgence, contestation, engagement and ownership. Unlike the traditional notion of a collective expression of community during a limited moment of higher law-making, the political model of resurgent constitutionalism facilitates multiple opportunities for collective validation of a founding constitution. It is the ex post, then, that gives real meaning to a founding, which, devoid of any real test of survival, only remains an intellectual abstraction.None of this ought to detract from the continuing fallouts and challenges of resurgent constitutionalism in Pakistan or other transitional democracies. Inherent within resurgent constitutionalism is the deep tension between structural continuity and change, and hence the risk of constitutional reversal. In Pakistan, the staying power of the military as well as supporters of an Islamist constitutional dispensation - the two often buttressing each other - is an obvious challenge. Because of ongoing security problems in the region, the unstable diplomacy between Pakistan and India over the long-standing Kashmir issue, the militarisation of Pakistan’s marginalised province of Balochistan, the uncertainties plaguing the border between Pakistan and Afghanistan, the military and drone operations in Pakistan’s troubled Tribal Areas in the northwest, and the military’s unchanging policy of protecting certain militant and terrorist groups for strategic purposes,[978] the military avows both sufficient cause and institutional power to retain its political ascendance, though perhaps no longer in the guise of military dictatorships and martial laws.
The most recent general elections of 2018 are widely believed to have been rigged and engineered by the military on a large scale in favour of its preferred candidate.[979] Thus, a complex civil-military power-sharing arrangement continues to persist, demonstrating that a ‘clean break' from authoritarianism is a very long-term political project in transitional countries - one that no constitution can enforce without an equally long-term ex post political commitment and institutional evolution.Despite Pakistan's many current and foreseeable constitutional challenges, resurgent constitutionalism has both empowered and broadened constituencies of constitutionalism over time. Just as the military appears to have firmly reasserted control over the political process, another social movement is surging in the northwestern province of Khyber Pakhtunkhwa and the adjoining Tribal Areas that have been sites of military operations related to the War on Terror for many years. Describing itself as the ‘Pashtun Tahafuz Movement' (translated as ‘Pashtun Protection Movement' or PTM), the Movement calls, among other things, for an end to enforced disappearances, extra-judicial killings and other rights abuses allegedly committed at the hands of Pakistan's military and intelligence services.[980] That the core express demand of the PTM is that people of the region (mostly ethnic Pashtuns) be granted equal protection of the Fundamental Rights and that this demand has found resonance in non-Pashtun communities across the country is a powerful testament to the socialisation of the 1973 Constitution.