Decolonizing the Constitution

The constitutional history of Pakistan and its final form, the 1973 constitution, provides an understanding of why it is time for the federation to investigate its colonial legacies. The existing cleavages between institutions, lack of balance, and de facto separation of power between stakeholders, along with the precarious state of the rule of law have distorted national cohesion at multiple levels. Since its inception, legal and political discourse in Pakistan has failed to identify the elephant in the room (and in the constitution), which is the reality of being a federation with a colonial history. This article argues that the presence and glorification of archaic British colonial laws in Pakistan’s constitution(s), based on the Government of India Act of 1935 inter alia, may explain its democratic boom and authoritarian bust. The paper aims to highlight the critical role of these laws in shaping the nation’s legal landscape, among other ramifications including ethnic relations, institutional power, and center-province relations. It also argues that the use of laws from the colonial era, devised to regulate the colonized and extract mass resources from the colony, perpetuates legal loopholes that various stakeholders exploit to their advantage. Further, it sheds light on the far-reaching implications of retaining colonial laws and the production of a patron-client relationship spread across institutions and regions, which creates a culture of dependency and a power asymmetry. Consequently, the supremacy of law and a collective respect for the constitution becomes compromised. Finally, this article advocates for decolonizing the 1973 constitution with an urgency to expunge colonial laws and replace them with statutes that reflect Pakistan’s modern democratic principles. Through a theoretical and comparative approach to Pakistan’s historical legal legacies and their contemporary implications, this paper contributes valuable insight for deliberation on decolonizing the constitution to focus on better governance, inclusive policies, and synergized frameworks.