Abstract

This paper deals with the nature and direction of constitutional thinking and practice in Pakistan. It is argued that the country reflects a general malaise of postcolonial societies, characterized by tension between the locus of power in the politico-administrative machinery and the source of legitimacy in the constitution. Under the classical formulation, the constitution represents the way a nation wants to live its collective life in terms of various laws and institutions, as well as the powers and duties of public office-holders. In other words, the institutional-constitutional edifice of the state functions as the vehicle of a nation's life’. One finds comparable theories in the tradition of structural Marxism, for example in Poulantzas, which consider the state as a condensate of the power structure of the society. It is argued that there is a conceptual tension in the formulation of such theories. In the context of postcolonial societies, transplantation of institutions and constitutions from a different era and a different continent played a formative, almost deterministic, role in the way the state's authority was conceived and opera-tionalized. For more than a hundred years, British India remained a laboratory for the implementation of political, economic, legal and administrative values and norms. On the one hand, this shaped the way people came to look at their relations with the state in terms of new implements of power such as non-arbitrary sources of authority, codified law, rational-legal bureaucracy and rule of public representatives. On the other hand, it created the mass public itself which, in due time, rose to stake a claim for societal input into the business of the state. In other words, our discussion needs to go beyond the ahistorical approach to constitutionalism in Pakistan and elsewhere, as embedded in such concepts as the reflection of either the nation's will or the social power structure in a microcosm. The relative autonomy of the state apparatuses of the military, the bureaucracy and the judiciary, as well as constitutional provisions ranging from writ jurisdiction, equality before the law and equality.