According to the German professor of law Ulrich K. Preuss, there are four ‘ideal types’ of constitutions. Preuss’ study focuses on what nature of judiciary such constitutions produce. The ‘types’ are named by me.

Type 1 constitution is the outcome of a revolutionary upheaval. This constitution is designed to allow ‘the people’s will’ to impose its political and social ideals upon the whole society. Prominent examples in this regard are constitutions authored during or soon after the 18th century revolution in France, and the Russian revolution in 1917. 

There is no place for a constitutional court in such constitutions, nor do they give any other courts the power to interpret the constitution. The judiciary’s sole function in such constitutions is to shape a new polity and strengthen it by implementing ‘people’s will’, as defined by those leading ‘the people.’ These are usually new power elites that have replaced the old elites. 

Type 2 constitution is the result of strife between varied ethnic groups who have all been slotted in a single nation-state. The constitution and the judiciary in this regard attempt to shape a collective and consensual nationalism through mediative mechanisms and interventions to keep the peace between the groups. 

Type 3 constitution is dictated by conquerors and adopted by the conquered. The most prominent examples in this regard are Japan and Germany, who were defeated by the Western allies in the Second World War and then coerced to adopt constitutions that embodied the ‘constitutional spirit’ of Western democracies. The judiciary under such constitutions works more or less in the same manner as it does in Western democracies. 

While Pakistan’s Constitution was formulated with the intention of shaping a collective identity by mediating between varied ethnic groups, it now faces existential challenges as some judges seek revolutionary roles

Type 4 constitution is the outcome of an evolutionary process, in which a country peacefully transforms to become a democracy. The judiciary in this case exercises a process-oriented use of law to aid the transition and then strengthen it. 

So what type is Pakistan’s Constitution? I would say, Type 2. Launched in 1973, it came on the heels of a fallen authoritarian regime and a vicious civil war in the erstwhile East Pakistan that had a Bengali majority. The state lost the war and East Pakistan became Bangladesh. Yet, what remained of the country still had multiple ethnic groups, the largest being Punjabi.

Smaller groups blamed the ‘Punjabi elites’ for undermining and usurping the rights of the Bengalis and causing the ‘East Pakistan debacle.’ And, although the country’s population was overwhelmingly Muslim, these were divided on sectarian and sub-sectarian lines. Each one had a history of being theologically antagonistic towards the other. 

However, it was ethnic fissures that had triggered the civil war in 1971, which the framers of the 1973 constitution were most conscious of. So the constitution is largely a mediative document which expresses an understanding of Pakistani nationalism that was consensually formed by the representatives of various sections of society. 

However, unable to fully come to terms with the fear of this consensus collapsing (and along with it the federation), the authors of the constitution put Islam at its core, believing that a stronger emphasis on the country’s majority faith (through official media and curriculums) would weaken the importance of ethnic identities and strengthen Pakistani nationalism. 

Pakistan did not face any further fragmentation. But, by the 1990s, as ethnic turmoil somewhat began to recede, it was replaced by sectarian and sub-sectarian violence, and violence by Islamist militants. The constitution had no answer, because it had continued to be ‘Islamised’ across the 1980s and 1990s — so much so that a large part of it became an unabashed expression of ‘theo-democracy’ (fusion of theocracy and democracy). 

The military establishment (ME) was squarely on board this project and, therefore, so was the judiciary, which had always willingly legitimised the ME’s political whims. This went on till 2022, when the project’s last major marionette, Imran Khan, had a falling out with the ME. The ME became concerned by his absurdist/populist style of politics. By then, the country was not only being impacted by sectarian, sub-sectarian and Islamist violence, but ethnic fissures began to open up again and the economy started to reel.  

The ME partnered with major anti-Khan parties to formulate a plan to reverse the process. But this was also the moment that the judiciary (or at least most judges) decided to become ‘independent’. What timing, indeed. Whereas judges such as the current chief justice dove into the Constitution to find a resolution, others began to climb the populist Khan’s shoulders to announce their independence.

Though conscious of the Constitution’s theo-democratic nature, the chief justice seems to be the clearest in constitutionally contextualising political cases. On the other end, many of his colleagues are being criticised by the anti-Khan lot for ‘rewriting’ the Constitution to aid Khan (as a way to rebuke the ME). 

According to the American jurist Stone Sweet, such scenarios emerge when legislative politics becomes ‘judicialised’. This limits the powers of the legislative. Politics moves from the floor of the parliament to the apex courts. Preuss uses the word ‘juristocracy’ to explain the shifting of the powers of the government to the courts. 

The former Hungarian president and lawyer Laszlo Solyom wrote that sometimes judges take it upon themselves to initiate actions that come under the jurisdiction of the parliament. Therefore, according to Solyom, the motto ‘we the people’ is replaced with ‘we the court.’ 

The Pakistani Constitution may seem dated about certain issues and requires revisions, but it is quite clear about who best manifests the ‘will of the people’: the parliament. Yet, we are now seeing certain judges waving their fists and declaring that they will impose the will of the people. We are still the kind of country that produced the Type 2 constitution. If it is to be rewritten in any way, the rewriting can only be done by the parliament as a consensual exercise. Not by the courts. 

Instead of applying the 1973 Constitution’s inherent mediative mechanisms to amicably resolve issues of a deeply polarised polity, some judges have decided to pose as revolutionaries and that too (allegedly) at the behest of a controversial populist. A constitutional collapse is now very much a possibility, unless these judges stop undermining the current parliament, no matter how much they detest it and feel it is not manifesting the will of the people.

Published in Dawn, EOS, August 4th, 2024