Muhammad Najm Akbar
October 13, 2018
France marked the 60th Anniversary of the adoption of the Constitution of the Fifth Republic on October 4, 1958. Listening to the speeches of the French President and the President of the Constitutional Council, Emmanuel Macron and Laurent Fabius, I kept thinking about the fiftieth anniversary of the Constitution of 1973 in about five years. What would it look like in another few years, if the government decided to commemorate its half-century?
The Constitution of 1973, given its complex environment, has been more resilient than its predecessors of 1956 and 1962. It exists and survives in a Pakistan historically and geographically different from its two predecessors. It has coped with multiple amendments and amendments to those amendments, twenty one (excluding the proposed but not adopted) since 1973 that either the elected governments or the two military regimes inserted into it. Civil society resentment against deep-rooted divisions and distortions that some of these amendments, adopted under both dictatorial and elected regimes, have inseminated into Pakistan’s socio-political scene poses an ongoing challenge to the legislature.
Constitutional provisions notwithstanding, power sharing between different stakeholders in a society does not take place in a vacuum. Constitutional development in Pakistan continues to face historical forces that accord a place of eminence to organized and armed groups in turbulent times. Pakistan’s fragile political structure has thus contended with constitutionally unusual and yet historically consistent claims to power-sharing by an organized armed institution in society. Both military regimes post-1971, nonetheless, sought to escape the wrath of article 6 by pretending that instead of “abrogating,” they had held the constitution of 1973 in “abeyance,” while observing its major provisions as long as they did not collide with their interests which they further consolidated through interim constitutional orders. Eighth and seventeenth amendments under these regimes symbolized the aggression that military dictators can commit against body politic if power-sharing arrangements failed to accommodate their views and interests. The constitution of 1973 thus continues to live through legal and sociological distortions these military regimes imposed on it. This challenge might continue to stare into the eyes of civil society in the years to come.
In terms of governance, the rival elected governments have succeeded to restore the balance of power to parliamentary form of government with a powerful prime minister through thirteenth and eighteenth amendments. They have also been able to take further steps towards decentralization, devolving more powers to the provinces but continue to look at the far more sensitive and harmful social impact of some amendments as “no go areas.”
Looking ahead, revival of the presidencies based on the eighth and the seventeenth amendments does not currently seem to be on the horizon. The stakeholders in the power-sharing arrangements, apparently to their satisfaction, have figured out ways to advance and protect their interests by using (or abusing) the constitutional mechanisms and institutional alliances. Within these constraints, the constitution of 1973 would have to address some of the looming challenges such as the tensions simmering through the nation’s social fabric, violations of minority rights, question of defining and finalizing Pakistan’s borders, a redefined territorial and administrative map, and distribution of resources across and within current or redrawn provinces as well as an official or national language or languages.
Among his French audience on October 4, Macron had the highest judicial authorities. The interpreters and arbiters of the 1973 constitution, like its predecessors, have swung between polar extremes of judicial independence, activism and legalism positivism or attracted suspicions of simply becoming pawn in the hands of a powerful executive. Interpreting Pakistan’s 1947 interim constitution’s provisions on the Constituent Assembly, only one member of the Federal Court believed that Pakistan, though still a Dominion in 1955, had become a sovereign state in 1947. The constitutions of 1956 and 1973 have seen the Court justifying the aggression against them more than once, invoking doctrines of revolution or necessity and in May 2000, going beyond its role and granting a limited though conditional term of office to the usurper. The court, to its credit, has also strengthened its hold on judicial review, upheld the role of political parties, challenged the criteria to exercise authority under amended provisions of the constitution of 1973, and reinforced its own role in the appointment of judges. On the most alarming side, at times the Court has moved far away from the ambit of its constitutional role and appropriated a populist posture.
Resilient, the constitution of 1973 continues to hold the center stage, at the heart of the ongoing institutional struggle for power-sharing. At the moment, there seems to be no reason to think that it would not commemorate its fiftieth anniversary in its current or somewhat further amended form, reflection for which must begin.
Some useful links:
Possibly correct view (?) of the establishment, March 18, 2018
The News on the “Bajwa Doctrine.”
Reversing the 18th Amendment?
Khurram Husain, Dawn March 22, 2018