Pouvoir Constituant

ANUJ MISHRA

Despite what appears to be inter-regnum constitutional void in narrowly legalistic scope, there is inherent intertwining of sovereignty and constitutional continuation, explicitly in terms of the paramount constituting of the state; with or without “a constitution” being enforced –a product of temporal, sometimes transient and often contextual political transactions, especially in transitional societies, unlike permanency of state.

As such, even when there is constitutional failure, when a much-maligned constitution collapses under its own weight, not being able to deliver on its pre-set mandate; the onset of constitutional vacuum renders the political power illegitimate –except for pouvoir constituant, the power of the constituents. However history is rife with instances of abuse of this ultimate source of legitimacy, when contemporary power holders proclaim assumption of this popular sovereignty to instantiate advantageous political set-up, without real representations of the constituents –the citizens.

The challenge then is how this body of citizenry in its whole as the manifest political entity, the demos, exercise sovereignty and re-legitimize the state in desperate constitutional vacuum; when transition has not wound down, while transformation has not taken off –a purgatory fuzz.

When even the most vaunted dyadic theorization of constitution-making, an interim constitution followed by a permanent one, a product of experimentation of mission civilisatrice, especially post-1990s, fails to account for failure of interim constitution itself, even before properly gestating permanent constitution –to offset the constitutional vacuum created by the absence of legitimate state power; the natural order would entail activation of popular sovereignty expressed by the demos through the pouvoir constituent manifest in the doctrine of constitutional continuity.

Which, in turn being intertwined with the sovereignty of the state is explicit in the very constituting of the state–in application till the time the state is re-constituted again legitimately.

This quandary poses a challenge as to how best to re-legitimize state power when past constitution has been superseded by the new constitution or an interim one –which has however, collapsed without giving birth to the supposed permanent constitution. While the real time application of pouvoir constituent as being manifest in constitutional continuity is rendered mutually exclusive by revanchist hyperbole of populism, especially aided dividend driven racist identity politics and ethno-populist opportunism.However re-legitimizing state power, which has been rendered effectively illegitimate by the political failure and the consequential constitutional failure is pre-requisite of unknotting the constitutional impasse.

As such a new and lean interim statute –completely shorn of ideological overload, or expansive agenda of social transformation, under whose very weight, the constitution collapses–yet, robust and straight-forward enough for enabling constitutional operation of the state for time delimited transition is apt via media amidst the dangerous oscillation between two extreme poles of radicalization and retrogression.

The doctrinal pouvoir constituent while mandating constitutional continuity to gallop the constitutional hurdle may not imply reverting back to the previous constitutional order; whose very failure produces the new order. When the optimal gauge of the absolute pouvoir constituent, the electioneering itself is rendered ineffectual by pervasive criminalization of politics; instead of reverting back, rather reverting to the universal lowest common denominator of popular aspirations for social order, personal security and public services, mandates restitution of firm constitutional order legitimizing a firm and effective government for the interim –to deliver the very popular aspirations until the new legitimate constitutional order is established.

There are no universal prescriptions and it is very much contextual, particular and case specific –each society with its own peculiar complex dynamics and unique socio-historical course has to settle for its own uniquely transacted and negotiated bargains for solutions amongst its constituents. There is however universal requisite of an ordered society as enunciated above as social order, personal security and public services. Conflating two: there is unique possibility for the society’s unique governance problem.

If the state structure is intact, albeit much maligned –with the system of public administration, security apparatus and justiciary function in place; then shoring up the state on its base would be the priority of new lean yet robust constitution. Provided all the controls, including countervailing geo-political forces in feeble and transient society remain conducive; voluntarily vacating the power by already un-delivering political forces–whose legitimacy, even a qualified one is at best very much questionable, due to their self-inflicted failures and consequential constitutional failure–for an interim administration composed of the heads of the paramount government apparatuses would be less worst solution.