Doctrine of necessity revisited

THE Supreme Court verdict validating suspension of the Constitution and its aftermath was very much expected, yet it stunned an average sane person when it came. Of course, the hearing by the bench that gave the verdict had not been very comprehensive, as it took over from the original bench, but its order not only took good care of the issue before it but also refreshed one’s knowledge of jurisprudence. Quintessentially, the court upheld all acts of omission and commission by President Musharraf - in an interview the other day he did admit violating the constitution - as legal, drawing legitimacy from case law, special circumstances and public interest. The court order held the situation on July 5, 1977 when General Ziaul Haq overthrew the government of Zulfikar Ali Bhutto and that on October 12, 1999 when General Musharraf dismissed Nawaz Sharif’s government similar to the circumstances that warranted the latest suspension of the Constitution. But, vicariously, the judges on the bench also justified their own oath-taking under the Provisional Constitution Order, 2007, mainly by placing the blame on judicial activism promoted by the judges of the previous bench. The short order of the court concedes that since the “old legal order” has not been completely suppressed or destroyed “this is a case of constitutional deviation for a limited transitional period”. But at the same time the court decided that the Chief Justice and other judges who did not take oath under the PCO “have ceased to hold their respective offices on November 3, and “their cases cannot be reopened being hit by the doctrine of past and closed transaction”. It justified the latest amendments in the form of the PCO because it thought the Constitution had failed to “provide a solution” for the attainment of declared objectives of the Chief of Army Staff. The order declares the Constitution minus “certain parts” to be still reigning supreme, but “extra-constitutional steps” like proclamation of emergency, PCO and its amendment, Oath of Judges Order 2007 and the President’s Order No 5 made by the COAS/President, “are hereby declared to have been validly made”, subject to the condition that the country shall be governed “as nearly” as may be possible in accordance with the Constitution.
This has been done under the principle of salus populi suprema lex (welfare of the people to be supreme law). But about the imposition of emergency on November 3, the court observed there was “a strong apprehension of disastrous consequences”. Will the court verdict legitimising the suspension of Constitution and other extra-constitutional steps taken by President General Pervez Musharraf retrieve the country from the quagmire it is presently stuck in? Only time will tell. Some of the reaction that came soon after the court verdict was not very flattering. One would need a very stout heart to agree with the court that the deposed judges transgressed their judicial authority by taking action in matters that appear to be too lowly but in fact constitute the ‘world’ that an average Pakistani lives in. Suo moto actions by the judges had lifted the morale of the people and strengthened their faith in their destiny. But for these actions the tyranny besetting the people at the hands of a corrupt and cruel bureaucracy would have continued. There is no question that suo moto actions brought justice where it was not coming. But there is also the realisation that one needs to see things in terms of practicability and pragmatism. For one, the court has asked the General to shed his uniform before December 1, 2007. On the face of it, this was some ado about nothing but given the unpredictability of our politics one may say it was not an entirely irrelevant call. Then, the court has consistently stressed the element of temporariness of the PCO and emergency rule, hoping for fuller restoration of the Constitution sooner than later. In sum total, the verdict tends to open the way to general elections, which if held free and fair will have the potential to shift the balance of power to the people’s representatives. They would have all the power and authority to enforce the will of the people by adopting necessary constitutional modifications. But as for now the expected has happened, a fait accompli, that is.

Past can help too

DEBATE and dissent are the essence of democracy. There, therefore, is no reason to be unduly concerned over the frequent struggles in Iraqi Parliament for the passage of bills; more so because there is realisation that Iraq is a fledgling democracy, and it takes time for institutions and politicians to evolve and mature. Yet the stalling tactics adopted by some lawmakers now to block a bill that would facilitate Baath Party members to return to public life cannot be seen as a step in the right spirit. The underlying sentiment behind the introduction of the bill, as Washington and the Iraqi government reckon, is to encourage the ongoing reconciliation efforts between communities that remain deeply divided. Without doubt, the Baathists form a major segment of the Iraqi population, and, in all fairness, their base cuts across communal divide: reason enough to argue that they too must have a say in Iraq’s future. Saddam Hussein’s rule had its share of flaws. But there is no denying the fact that, as a political establishment and stabilising force, Baathists had a positive role to play. And they are still a force to reckon with. Those who try to keep them out of public life are not willing to face the ground realities. Any casual observer of the current Iraq scenario will agree that there cannot be peace in Iraq as long as the Baathists, especially the Sunni minority, are not brought back into the national mainstream.
The fact remains that Americans had been misled, to a large extent, by vested interests as regards the realities that existed in Iraq before and after the 2003 war. Reason why Bush and his men are faced with an impregnable wall of resistance both in the form of insurgence and ground-level animosity against US presence in Iraq. The bill relating to Baathists must be seen as a step in the right direction; and also as part of a move to right the wrongs of the recent past. It is also a matter of concern that another bill, aimed at sharing the gains from oil equitably between Iraq’s 18 provinces, is being stalled in Parliament. If the bill has imperfections, parliament is the forum to discuss and rectify those flaws before it is passed into law. That is the way democracy functions. Stalling is a hard option. Sectarianism has been the curse of Iraq. It is time to turn a new leaf. Moqtada Al Sadr and his men, who are seeking to stall the bill, must know that carrying the animosity forward is not going to help anyone. Instead, it is in their interests too to build an all-inclusive Iraq for the future, in which all sections of the people will breathe easy and prosper. That’s the Iraq we all looking forward to see, drawing an end to the chaos and confusion that dominate the life there today.

—Khaleej Times