Mr. Ejaz Haider in a lucid article on the legitimacy of constitutional change (DT 5th September 2003) has made a fertile argument, which in the context of Pakistan’s politics, raises more questions than it answers. In this article we will briefly examine his proposition, to indicate that while it may be eminently suitable as an explanatory device for the nature of democracies in the advanced industrial countries (“matured” democracies), it points to the need for a deeper explanation in the case of “developing” countries like Pakistan.

Mr. Haider puts forward a simple theoretical proposition: For constitutional change to be legitimate, it has to be undertaken in terms of a set of rules specified by the constitution itself. This is clearly necessary if the conflict between the contending political forces is to be constrained within a stable political system embodied in the constitution. Mr. Haider may well be right in suggesting that the “sweep of changes” represented by the Legal Framework Order (LFO) could change the essential character of the constitution and therefore do not emanate from what he calls the “endogenous norm”. However it is not enough to say, as Mr. Haider does, that such a norm must be observed. The question is, why in Pakistan, does the conflict between political forces in the country repeatedly break out of the bounds of the constitution and thereby destabilize the political system itself?

It may be pertinent to mention here that in Pakistan’s history if we include the Legal Framework Order (LFO), the various ‘provisional/interim’ as well as the ‘permanent’ constitutions, there have been eight documents each of which has served as the constitution of Pakistan. This means that the average life of a constitution in Pakistan is about seven years. Pakistan’s history has been characterized by political conflict between various factions of the elite that has repeatedly undermined the constitution of the day either endogenously or exogenously. Three examples of endogenous interventions that have changed the essential spirit of the constitution prevailing at the time, may suffice:

1. The Constituent Assembly in 1954 made the first attempt to give a constitution to the nation. On October 28, 1954, the Constituent Assembly was scheduled to formally vote on the published draft of Pakistan’s first constitution, a draft that had been approved in the previous session of the Constituent Assembly. On this fateful day Governor General Ghulam Mohammad who felt that the draft constitution did not suit his power interests, ordered the police to bar members of the Constituent Assembly from entering their meeting room in Karachi. The passage of the first constitution was thus aborted. The significance of this event was summed up in a prescient remark by Lawrence Ziring: “Once the first constitution is destroyed, it is doubtful that any succeeding one, no matter how successfully drafted will ever be truly accepted. A tradition which makes it possible for new leaders to replace old documents with others which appear preferable to them not only denies constitutionalism but makes reference to it little more than a sham”.
2. Mr. Hamid Khan (in his book titled: Constitutional and Political History of Pakistan) has shown how the Z.A. Bhutto Government through the fourth amendment to the constitution of 1973 sought to curtail the powers and jurisdiction of the courts. It aimed to prevent the judiciary from granting relief, (or even bail during detention) to political opponents who were being persecuted through the personalized use of state power. The mode of passing this amendment shows how the functioning of the “endogenous norm” can undermine the essential spirit of the constitution. Members of the opposition in the National Assembly were denied the opportunity to debate the amendment when they were physically thrown out of the National Assembly by the security staff led by the Sergeant-at-arms. A vote on this amendment was then passed in the absence of the opposition, by the two-thirds majority, which the Z.A. Bhutto government enjoyed in the National Assembly.
3. The regime of Prime Minister Nawaz Sharif who like the regime of Z.A. Bhutto had a two-thirds majority in the National Assembly, made a systematic attempt to undermine and control institutions such as the Presidency, the Parliament, the Judiciary, the Press and (in the end) the Army, in order to lay the basis of authoritarian power within a formally democratic structure. A dramatic though painful example was the conflict between the government and the judiciary when the Supreme Court decided to hear a writ petition for contempt of court against the Prime Minister and some of his associates, which if it had been decided against the Prime Minister, could have resulted in his disqualification. According to independent observers, an attempt was then made to engineer a division within the apex court.

Inspite of the consequent division and conflict amongst judges of the Supreme Court, the Chief Justice resolutely went ahead with the trial of the Prime Minister. On the day fixed by the Supreme Court for the hearing, the ruling Pakistan Muslim League (PML) transported thousands of its supporters to stage a protest against the Chief Justice. The charged mob broke the gate of the Supreme Court building and ransacked it, forcing the Supreme Court Judges to abandon the trial and retire to their chambers.

The unprecedented mob attack on the Supreme Court by a ruling political party brought in its wake a major constitutional crisis. President Leghari accused the Prime Minister of inciting the attack and warning that “he would not allow the law of the jungle to prevail”. The Prime Minister retaliated by moving an impeachment notice against the President in Parliament and also sending him a summary advising him to sack the Chief Justice. The President was now faced with the choice of getting impeached or signing what he regarded as an illegal order against the Chief Justice. In a situation where the Army appeared unwilling to step in to resolve the crisis, the President decided to resign. Thus the powers that were earlier distributed between the Chief Justice, the President and the Prime Minister, were now concentrated in the hands of the Prime Minister. This violated a fundamental principle of a democratic constitution originally enunciated by Montesquieu, the eighteenth century French political philosopher, whose work later became the basis of the American Constitution. He had argued that a democratic government was one in which there was a balance of power between the Head of State (the Chief Executive in later dispensations), the Parliament and the Judiciary.

The above examples illustrate the fact that successive political leaders in Pakistan have sought to use the “endogenous norm” to build personalized domains of authoritarian power even within formally democratic regimes. Equally, successive military chiefs have intervened “exogenously” when internecine conflict within the existing political system has triggered a crisis of the state itself. Each military regime has intervened, ostensibly to establish political stability and has justified the intervention on grounds of national security. These exogenous interventions have in most cases been legitimized by the Supreme Court on the basis of the “law of necessity”, or the fact that misgovernance by the elected rulers had created such a severe crisis of the state that the constitutional provisions were inadequate to deal with it. To give the most recent example, the Supreme Court in its validation of the military take over of 1999 referred to the crisis explicitly: “On 12th October 1999 a situation arose for which the constitution provided no solution and the intervention of the Armed Forces through an extra constitutional measure became inevitable which is hereby validated……”. The endogenous norm was thus replaced repeatedly by the exogenous norm legitimized by the imperative of state survival.

In Pakistan successive democratic governments have ruled in the name of the people. Yet they have undermined their legitimacy by pursuing personalized power and being indifferent to the interests of the people. In this sense Montesquieu’s formulation has been turned on its head: In Pakistan, not only despotic but democratic governments ruled as if the “people were nothing”. The question therefore is not simply of the formal structure of governance, (although this is important) but of political culture and the particular form and practice of power in Pakistan, that induces similar behaviour amongst democratic and dictatorial governments alike.

The problem in Pakistan is not simply that in the current political situation the “endogenous norm” is being violated by bringing about constitutional changes through a procedure that was not envisaged in the constitution, as it existed before the military take over. The question that needs to be examined is why, both exogenous interventions as well as endogenous changes in the constitution have repeatedly been deployed to change the character of the constitution. Why is it that the “grund norm”, that Mr. Haider and indeed all of us desire, has not yet emerged? Addressing this question would require an analysis of the historical interplay between the power proclivities of individual leaders, political culture, and institutions of both state and civil society. Such an analysis would reveal why a consensus has not yet emerged, which is organic to society and which could underlie the stability of the constitution.

The protagonists within Pakistan’s political elite have pursued unbridled power that has proven unproductive for their own long-term interests. This is because the very framework within which their power could be constituted has been repeatedly undermined. In terms of game theory it can be argued that such political behaviour is irrational. The work of John Nash, (the Nobel prize winning economist) may be relevant here. He has shown that under certain circumstances the cooperative solution, rather than the purely competitive one enables each protagonist to maximize his gains. This may well be a rational endogenous norm in the context of Pakistan’s political conflicts. Although this norm has not been observed in Pakistan so far, we cannot dismiss Pakistan’s politics as simply irrational. Since Pakistan’s politics is real therefore its specific features manifested within the historical process must be understood to get a rational explanation. To end with a quote from Hegel, “What is real is rational”.