Monday, August 03, 2009

Lifting the Siege: Could Parliament help Supreme Court?

Lifting the Siege: Could Parliament help Supreme Court?
By Dr. Mohammad Taqi

“How dreadful it could have been if the right judges had judged wrong”

– (modified from Sophocles)

The Supreme Court of Pakistan (SCP), through its July 31, 2009 judgment, has tried to lift the siege laid around the Pakistani judiciary by the civil and military establishment, the politicians and the judiciary itself.

There was a clear and present danger that in an effort to reassert itself the restored judiciary might venture into taking on the executive and the army, and in the process, risk derailing the democratic dispensation. The SCP obviously had a very difficult balancing act at its hands as the public expectation demanded certain scalps for the November 3,2007 actions.

Starting with the petroleum prices and subsidy issue, the SCP appeared to be on a collision course, thus raising concern in several quarters including the lawyers themselves. Reportedly, three High Court Bar Associations bluntly declined to join the Sindh High Court Bar Association in the petition just adjudicated lest things may get out of hand, sending the current system packing. Meetings between the Army House and the lawyers’ leaders later ensued with the reported exchange of mutual reassurances.

To paraphrase the advice of Lord Chancellor Bacon to his newly appointed magistrate, the SCP confined itself to its jurisdiction as defined by the ancient mere stones and contained within that mark.

To their credit, the CJP, Justice Iftikhar Chaudhary and his brother judges not only showed tremendous restraint but have also provided an opportunity for the parliament to redeem itself.

In an article titled “The March of Folly”, published on these pages on March 14,2009, I wrote:

Notwithstanding his paranoia related to and obligations under the NRO, Mr. Zardari might have to consider going a step farther than the lawyers and their allies and have a constitutional package drafted in the light of the 1972 judgment of the Supreme Court of Pakistan, which opined in Asma Jilani case:

“As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to the would-be adventurers”.

Asma Jilani case indeed was the basis for the framers of the 1973 constitution drafting not only the Article 6 dealing with high treason but also making a specific exception to the constitutional principle of non-retrospecivity of offences and punishments in the case of such high treason and desecration of the constitution.

Acutely aware of the potential for mischief of Pakistan army and its quislings - such as those who eventually would endorse the 8th and 17th amendments, the framers went on to include the Article 12(2) stating that any such offence would not fall under the Protection against Retroactive Punishment or indemnity granted by the parliament via article 270. The Article 12(2) states:

“ Nothing in clause (I) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence.”

By making the agreement to implement the Articles 6 and 12(2) and the spirit of the SC judgment in Asma Jilani case, the corner stone of any constitutional reform, Mr. Zardari could wrestle back the moral high ground. It could serve as a litmus test to determine whether any of long march leaders are indeed interested in the full restoration of the constitution or if all their swashbuckling is just to get the Punjab government back.

Unfortunately, the Pakistan Peoples Party has not yet availed the historical opportunity afforded to it by a constellation of international and domestic factors to establish itself as the champion of democracy through strengthening the parliament.

In the judicial history of Pakistan, the major cases dealing with the martial law and seizure of power have included: State Vs. Dosso (1958), Asma Jilani Vs. Government of Punjab (1972), Begum Nusrat Bhutto Vs. Chief of Army Staff (1977), Syed Zafar Ali Shah Vs. Gen. Musharraf (1999) and to an extent the Tikka Iqbal Vs. Gen. Musharraf (2007).

In four out of these five cases, the Court placed reliance upon abstract legal doctrines such as Hans Kelsen’s theory of “Grundnorm” popularly called the “Doctrine of Necessity”, to carry out political acts at the behest of the usurpers and thus legitimized adventurism.

These cases, with the exception of the decision in the Asma Jilani case, show a Court that has been the weakest of the four organs of the State, the fourth and strongest organ being the army.

Even in the present Rashid Rizvi case, as in the Asma Jilani case, the Court has placed reliance upon the Hugo Grotius principle of “State Necessity” and the “Implied Mandate”, to selectively condone and legitimize certain unconstitutional actions.

The Court has not just selectively condoned its own transgressions; it has indeed legitimized the 1999,2002 and 2005 actions of those sitting on this bench. It has thus treated certain PCO oaths, as “past and closed transactions” opening of which, in its view, has no useful purpose.

One would be remiss not to point out that in theory, all acts that advance the good of the people and all acts done for running the usual business of the state may be condoned if they enjoy the implied mandate of the people and because there exists a necessity to condone them and to not do so would lead to chaos (SC in Asma Jilani case). Still, the Court could and should have clarified that it was merely condoning and not legitimizing such PCO oaths.

Very clearly, annulling the oaths of the President or Prime Minister or declaring the 2008 elections null and void would have lead to chaos. However, if 110 judges can be disposed off, at the very least an acknowledgement of lapse of judgment on part of the CJP i.e. his own PCO oath, would have strengthened his effort to lift the siege around his institution.

The decision in the Asma Jilani case was never implemented by the parliament and in less than five years of that judgment, the SCP reversed its stand and revived the Doctrine of Necessity and its stance in the Dosso case.

The parliament once again has the option to show that it is indeed supreme. It must undo the so-called National Reconciliation Ordinance, 17th amendment, condemn the 1999,2002 and 2007 actions of the usurpers and their abettors including the PCO oaths and such decisions as the April 13,2005 verdict of the SCP legitimizing Gen. Musharraf’s rule.

The role of the parliament will be crucial in ensuring a permanent establishment of representative democracy. It still has the opportunity to implement the Articles 6 and 12(2) of the 1973 Constitution across the board; the ultimate arbiter is the people of the federation.

(Author practices and teaches medicine at the University of Florida and can be reached at

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