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. (shrink)

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 post-colonial societies characterized by tension between the locus of power in the politico-administrative machinery and the source of legitimacy in the constitution. In the post-independence period, the State increasingly absorbed pressures from the newly enfranchised public, which sought to reshape politics in pursuit of nationalist goals. The institutional-constitutional framework of the post-colonial state was ill-equipped (...) to accommodate much less to sponsor and pursue these goals in earnest. This led to a general accusation of institutional decay, leading to a crisis of democracy. The inherent institutional imbalance between bureaucracy and politicians in Pakistan made a mockery of such constitutional provisions as parliamentary sovereignty, procedural and substantive aspects of the legislative process at the federal and provincial levels and the principle of the government’s accountability to its public representatives. (shrink)

Controversy has long surrounded the complex relationship between King Victor Emmanuel III and the dictator Benito Mussolini in Fascist Italy. It is clear that the king played decisive roles in bringing Mussolini to power in 1922 and in removing him in 1943. In between, the two coexisted as Italy became a ‘dyarchy’, with two foci of power. The presence of the monarchy at once checked Fascist radicalism and persuaded many conservatives to adhere to the regime. Thanks especially to the (...) monarchy, the innovative thrust of Fascism was channelled in certain delimited directions, toward a statist economy, for example. Still, the relationship between the crown and Mussolini was often rocky, though the king’s reluctance did not prevent alliance with Nazi Germany, anti-Semitism, and war. Tensions were largely papered over by rhetoric and myth-making, as if the elements of Fascism fit together neatly. Despite his opposition to certain particulars, Victor Emmanuel identified with the overall Fascist project to some extent, and he worried that outright opposition to the regime would jeopardize the monarchy. But as the Second World War went badly for Italy, the king finally deposed Mussolini. Nevertheless, Italy soon voted to eliminate the monarchy, discredited by its association with fascism. (shrink)

Discussions of the constitution of the Principate are usually focused on the powers of the emperor, and relatively little attention is given to the role of the senate; by exception much has been written on its jurisdiction, with which I shall not be concerned. Despite his theory of a dyarchy of emperor and senate, which I do not wish to revive, Mommsen, partly because he devoted separate volumes to each, did I not exhibit the extent to which Augustus and (...) Tiberius at least worked through the senate, and on occasions attributed to them legal powers to act by their own authority, when in reality they caused the senate to take action as the only proper means of effecting their wishes. More recently, F. de Martino in his admirable account of the Principate dedicates only one out of twenty-seven chapters to the composition, functions and procedure of the senate. For Syme it was simply an ‘organ that advertised or confirmed the decisions of the government’. This description does not bring out the truth that it was performing a role essential to Augustus' design. For though in effect he founded a monarchy, he commonly thought it expedient on necessary obtain for his measures senatorial approval. That this was the practice of Tiberius in his early years is clearly attested, and some suppose that he behaved in an entirely different manner from Augustus. This view seems to be mistaken, and the mistake is of some consequence. (shrink)

At the Seventh Congress of German Historians held at Heidelberg in April, 1903, Prof. Eduard Meyer delivered an address on the subject of Augustus, in which he expressed his view that the restitution of the republic was a genuine act of renunciation. ‘Augustus desired to dwell among his fellow-citizens not as a ruler but as a citizen, of course as the first among them all, as the princeps, like Camillus and the Scipios of old.’ If with Mommsen you described the (...) dual control of Caesar and Senate as a Dyarchy you ought not to forget that’ of the two the Senate in theory held complete predominance,1 the Emperor was ‘its executive, or as Tiberius expressed it, its servant, the Senate was the master .’. (shrink)