Von der Teilung Indiens zur Teilung Pakistans. Staatsrechtliche Aspekte

Abstract

Events leading to the formation of Pakistan (or partition of India) and Bangladesh (or partition of Pakistan) show certain basic similarities in the problem of transforming colonial rule superimposed upon non-homogenous societies into self-ruling national states. In both cases partition was preceded by the failure of attempts to bypass divergent group identifications and force homogeneity by appealing to broad ideologies like Congress Secularism or Pakistan’s Islamic Ideology. The alternative was to build composite states by intra-state accomodation of various ethnic, territorial or communal groups, i.e. tempering democracy with contract. This difficult task was complicated by the prevailing notions of International and Constitutional Law which give the premium of plenary power to the group occupying the throne of „national“ sovereignty. The extra-legal potentials of constituent power exercised by a numerical majority and of emergency powers used by an executive apparatus, the resulting legal impossibility of providing lasting sanction to pacts on constitutional issues, coupled with the denial of the right to secede, all this legal heritage of European absolutism contributed to the sudden and catastrophic break-ups into smaller sovereignties.