www.icl-journal.com Vol 6 3+4/2012, 441  ARTICLES Syed Sami Raza On the Disruption of Post-colonial Constitutional Order: Hans Kelsen or Carl Schmitt? ABSTRACT In wake of a coup d'état in 1958, the Supreme Court of Pakistan is asked to decide on its legality. The court, faced with lack of precedent, relies on Hans Kelsen's legal positivism. Over the next five decades the key theoretical basis of the decision is summoned in several other cases in different post-colonial states. This essay develops a critique of the application of Kelsen's theory. The aim of the critique, as well as an added theoretical contribution, is that I engage Carl Schmitt's critique of Kelsen. Accordingly, I redeem the 1920s debate between Kelsen and Schmitt in order to caste critical light on the court decisions. Moreover, I engage Schmitt's own constitutional theory in order to provide an alternative answer to the question of constitutional disruption. The task is two- fold: first, to evaluate Kelsen's (liberal) constitutional theory, which purportedly seeks to answer the non-liberal or non-democratic challenge posed by constitutional disruption and dictatorship, and second, to explore the democratic element in the non-liberal theory of Schmitt. My conclusion is that although Kelsen gives politically correct principle of "the efficacy of change" as the basis of legality of constitutional disruption, however, the main steps in his theory do not support the principle. Moreover, the principle draws him away from his liberal constitutionalism. On the other hand, Schmitt's explanation of the same principle based as it is in a non-liberal or realist theory, answers well the question of disruption and dictatorship. Thus the courts that engage Kelsen remain hard- pressed to defend their decisions, while those other courts that challenge Kelsen come close to Schmitt. A. INTRODUCTION Making of a constitution for the newly independent state of Pakistan (1947) was a challenging constitutional task. The agreement arrived at in the shape of 1956 constitution – especially the questions of parliamentary representation, form of government, administrative and financial division among the provinces and ecclesiastical and sectarian issues – remained tenuous. Meanwhile, multiple parties system, divided on regional, ethnic, sectarian and linguistic lines, failed to form a stable interim government. Although new constitution gave some hope for political stability, the erstwhile President of Pakistan was not convinced. According to him the new constitution was "full of dangerous compromises so that Pakistan