In Pakistan’s constitutional history, there have been precisely two phases recorded by history: the constitutional periods led by the civilian order and the extra constitutional interventions done by keeping the constitution in abeyance, suspension or abrogation in case of a new document. The first such instance happened in the aftermath of the October 1958 coup by Ayub Khan, who employed likeminded legal brains to churn out the 1962 constitution in place of the 1956 constitution penned by a civilian order. That 1962 constitution died with its creator, forcing the next military dictator Yahya Khan to opt for the Legal Framework (LFO) order, which in fact paved the way in terms of political developments ending with the break-up of Pakistan on the dark day of 17 December 1971.
The coup by Gen Ziaul Haque in 1977 was followed by complete suspension of the newly agreed and promulgated 1973 constitution. The gradual return to democracy by the late dictator in 1985 could not be done without the restoration of the 1973 constitution; though in a mutilated format courtesy the Eighth Amendment. While in the eyes of the pro-establishment legal wizards that amendment gave the President the right to implement the establishment dictates through the exercise of his powers under Article 58(2b), which gave him the right to dissolve the political system for new elections, without resorting to the military takeover; also legalized in one stroke of the pen; whatever was promulgated between 5 July 1977, and 23 March 1985.
General impression of the country resembling North Korea, Myanmar or some Baathist state in yesterday’s Middle East, Argentina or Chile in South America; might not help well in attracting long term investment. Returning to the strategic balance within the-nation state is much more important an imperative for stability than the strategies without. Mere lip service, while the Constitution is subject to ‘forced hibernation’ courtesy ‘anaesthesia administered’ will not solve the situation in the long and short term. The constitution has to return in full force, if the nation-state in question; Pakistan, is to be steered back to normalcy in the comity of nations
That development; if in one way it legalized the extra legal acts of the political system; which was forced down the throats of the people, it also demonstrated the hard fact for the purview of the established order that whatever extra constitutional acts that were committed had no legal legs to stand on; until they were rationalized within the fold of the 1973 Constitution as an amendment agreed upon by hook or crook; like the infamous election of one-time Lebanese President Bashir Gemayel in 1982 (in the aftermath of Israeli occupation of Lebanon).
A similar exercise was again repeated when another deceased dictator Pervez Musharraf legalized his acts in yet another constitutional amendment through the 2002 National Assembly. In both the cases, in 1984 and in 2002, the fraudulent referendums staged by the late Zia and Musharraf were given legal legitimacy in the 1973 Constitution.
In the cases quoted above, an analysis of the background realities of the Pakistani politics guides the readers and the students of Pakistani political economy, why there are no military interventions happening in the country, even though the domains of national security, foreign policy and even economy; inclusive of the budgetary outlay are settled with the consent of the invisible forces. The reason behind these ground realties and the resultant timelines of the political developments down to April 2022 rest on the fact that the 1973 Constitution might not be the only document governing the nation-state of Pakistan. The informal say and control of the forces that matter; the reason behind the coining of the terminologies like the ‘established order’ or the ‘establishment’, brings home the bitter fact that the centres of power might be or may be diverse in Pakistan; for all practical purposes.
Moving forward to further analyze the situation, the ability to control the nation-state to its advantage is unique in the case of Pakistan. There can be many instances quoted where the control of the driving seat has been the issue of contention raised by the compliant media. Pakistan, being an important component of the South Asian Subcontinent and consequently a SAARC Customs Union, could have been the prime trade partner of India, based on shared climate, habits, cuisines and culture, which form the basis for consumption-based economic activity.
However, the fact is that Pakistan has never been an active trade partner with India. The post-1988 PPP and PML(N) governments tried hard to ‘break the ice’ for the resumption of trade between the two states. However, they were faced with accusations of endangering national security or ‘compromising’ on Kashmir. Ironically, the Musharraf government in 1999-2008 period followed the same trade trajectory; over which the establishment used to accuse the civilian governments of being soft on India. Yet no one accused Musharraf of any treason on Kashmir.
Here one can smell missed opportunities between India and Pakistan at the onset of 1995/96, when the two countries’ formal entry into WTO obligated both to designate on reciprocal basis the “most favoured nation” status. That MFN clause was treated as something like a sell-out by the right of the centre media. While the trade between the two states was invisibly discouraged during the successive civilian periods, the Musharraf government was instrumental in opening to the BJP government in unprecedented way. It was ironic that when the PPP government was caught unprepared in the aftermath of the Mumbai attacks in November 2008 or when the PML(N) government tried to build bridges with the BJP government elected in 2014, both the acts were treated one stop as ‘treason’.
In 2016, the then political government’s opening with the Iranian reformist government for trade ties, when after a lapse of a decade an Iranian head of the state was invited to Pakistan, the sudden discovery of ‘Husain Mubarak Patel’ and the then military spokesman insistence on a diplomatic explanation from Iran, evaporated much of the goodwill, which might could have been created. The departing Iranian President had to say that ‘whenever the two neighbours try to open, there are invisible hands which discourage the same steps.”
When in the aftermath of the 2018 general elections, the ‘hybrid intervention’ resulted in a dispensation thinly veiled as an independent polity, the nation saw the repeat of the 1973 Arab-Israeli war trajectory in Pakistan. Like the Yom Kippur war in 1973, the Swift Retort was a high point, but towards an informal surrender. In the case of Arabs, the peace treaty was a shocker. In the case of Kashmir, the abandonment of the special status of Kashmir and the freedom movement was the desired surrender. Not many eyebrows were raised by the journalists close to the ‘security establishment’ as to why all that happened.
Here one might ask, why there was a need to undertake the April 2022 disruption in the process. The established order’s overconfidence proved to be the misstep, which unleashed friction between the two components of the famous ‘one-page’ understanding. The last one year’s political turmoil is squarely the war of nerves between those two components, if anything else.
The current situation arising out of the intense political confrontation in the second week of May 2023 has in fact emboldened the dominant players to the point where the Constitution seems a dead spectator. The unceremonious exit of the Gilgit Baltistan government Wednesday and an unexplained clamp down on the parliamentary activity there has sent two wrong messages; one that the Constitution is suspended in practice, secondly, the Pakistani moral high ground in lost vis a vis its stance; if any in case of the worthlessness of the occupied Kashmir legislature, as Pakistani managed legislature seems as impotent.
As said earlier in these columns, a general impression of the country resembling North Korea, Myanmar or some Baathist state in yesterday’s Middle East, Argentina or Chile in South America; might not help well in attracting long term investment. Returning to the strategic balance within the-nation state is much more important an imperative for stability than the strategies without. Mere lip service, while the Constitution is subject to ‘forced hibernation’ courtesy ‘anaesthesia administered’ will not solve the situation in the long and short term. The constitution has to return in full force, if the nation-state in question; Pakistan, is to be steered back to normalcy in the comity of nations.
