Following the ordered closure of an art installation in Karachi depicting extra-judicial killings, a debate at my law firm has ensued claiming such behavior is 'unconstitutional'.

I believe the opposite.

Ours is an experiment in Constitutional Authoritarianism.

THREAD

First, what is Constitutionalism?

Perhaps a bit more than simple compliance with terms of a constitution(?);
Here it means the division of public power in line with a core set of identifiable principles. Use of power consistent with the constitution makes such use 'legitimate'

With the example of the 1982 Turkish Constitution in mind, Turkuler Isiksel develops a theory of “authoritarian constitutionalism” as a system in which the constitution, rather than constraining the exercise of public power, is co-opted to sanction oppressive uses of it."

Turkuler Isiksel, Between text and context: Turkey’s tradition of authoritarian constitutionalism, International Journal of Constitutional Law, Volume 11, Issue 3, July 2013, Pages 702–726

"That said, it is possible to imagine a political system that practices robust constitutional discipline WITHOUT MEETING BASIC EXPECTATIONS of democracy, fundamental rights, human dignity, justice, or equality." (Id. Emphasis added)

And similar to Turkey, constitutionalism in Pakistan is found in the "form of meticulous adherence to a constitution whose terms directly and unequivocally subordinate the liberties of citizens to an oppressive conception of public order and security."

To those who claim that the 'authorities' have overstepped their constitutionally circumscribed powers in this case, I invite you to read the 1973 Constitution. I am of the opinion that fundamental rights in Pakistan are inherently subordinate to a competing state interest . . .

For example
Art. 19 enshrines the freedom of speech subject to:
1. security or defence of Pakistan or any part thereof,
2. friendly relations with foreign States,
3. public order, decency or morality,
4. or in relation to contempt of court,
5. or incitement to an offence.

Lets also consider the freedom of assembly under Art. 16.

"Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order."

The lesson is:
Public Order>individual rights

And that lesson is nailed down.

Prohibitions on arrests and detentions under Art. 10?

IF there is a competing state interest YOU CAN BE HELD in "preventative detention." Compelling state interest is sufficient to overcome any individual right. This is built in.

Also (and trust me, this IS A NOVELTY IN ANY PARLIAMENTARY SYSTEM) but the Executive (by design) is granted the ability to pass LAWS through Ordinance. By design, bypass the whole reason for elections/representative democracy. THIS IS A FEATURE.

THE POINT:
The Constitution itself decides all conflicts of individual rights with 'public order and security' in favor of the state.

State power as a result is exercised WITHOUT meeting basic expectations of democratic principles, rights, human dignity, justice, or equality.

Interpreting this document to be consistent with principles of representative democracy and rights is not warranted.
Our rights are designed to fail when confronted with a state interest.

Other interpretations seem disingenuous; there is no other way to read this document.

FIN

***INCOMPLETE AND IMPROPERLY FORMATTED CITATIONS***

The Endurance of National Constitutions, Tom Ginsburg, James Melton and Zachary Elkins

THE JUDICIALIZATION OF MEGA-POLITICS AND THE RISE OF POLITICAL COURTS, Ran Hirschl (Annu. Rev. Polit. Sci. 2008. 11: 93-118)

DO CONSTITUTIONS REQUIRING ADHERENCE TO SHARI‘A THREATEN HUMAN RIGHTS? HOW EGYPT’S CONSTITUTIONAL COURT RECONCILES ISLAMIC LAW WITH THE LIBERAL RULE OF LAW, CLARK B. LOMBARDI & NATHAN J. BROWN (REVISED LOMBARDI AND BROWN ART 1.DOC 1/21/2006 1:57:28 PM accessed on SSRN)

MUST READ

The Inherent Authoritarianism in Democratic Regimes
Richard H. Pildes (Public Law and Legal Theory Research Paper Series Research Paper No. 56)

Available online.

Must MUST READ ALSO

Turkuler Isiksel, Between text and context: Turkey’s tradition of authoritarian constitutionalism, International Journal of Constitutional Law, Volume 11, Issue 3, July 2013