South Asia’s revolutions and constitutional conundrums

RECENT POLITICAL TURMOIL IN ASIA has been marked by larger legal uncertainty. Images of violence, protests, and arson have evoked a sense of awe, amazement, and panic. 

Upheavals in South Asia, first in Bangladesh and then in Nepal must be critically understood from a legal philosophy perspective, as they have combined the restlessness of the people with constitutional uncertainties. South Korea nearly had a Schmittian moment, and the ousting of governments in Bangladesh and Nepal has opened theoretical debates on how popular sovereignty, revolution, and constitutions engage with each other. These times demand an interaction between legality and legitimacy. 

However, this is not the first time a subcontinental nation has faced a constitutional conundrum due to a revolution or coup d’état. Pakistan has gone through a significant constitutional turmoil due to coup d’états, and the Pakistani Supreme Court has dealt with the question of revolution and constitutional change several times in its postcolonial history. Understanding the Nepalese situation, along with Pakistani lessons on dealing with coup d’état situations can hold valuable lessons for students of constitutional law and legal philosophy. 

Kelsen in Pakistan: An unusual ‘Ally’ of the military dictatorship 

History presents its ironies in mysterious ways. Austrian scholar Hans Kelsen was persecuted by the Nazis and their totalitarian political system. However, his thesis was used to justify the coup d’état in Pakistan. The deployment of Kelsen’s views on revolution and Grundnorm by the Pakistani Supreme Court has been a matter of scholarly debate in Jurisprudence classes across the subcontinent. 

Kelsen proposed that the entire legal system gets its validity from the basic norm (Grundnorm). However, he opines that a change in the grundnorm can be effected through a successful revolution or coup d’état, as a revolution may nullify the old order and bring a new one into being through an illegitimate means that is not prescribed by the first order itself. The nature of the revolution - violent or non-violent - would also not matter. In State v. Dasso (1958), the Pakistani Supreme Court validated the unilateral declaration by President Mirza to abrogate the Constitution of Pakistan (1956 ). In doing so, the majority view, led by Justice Muhammad Munir, deployed Kelsen’s thesis on Revolution and grundnorm, suggesting that a revolution or coup d’état is a recognized method of changing a constitution if it is efficacious.