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Licence to rule

Prior to this, the judiciary almost always sided with the incumbent General who, after overthrowing a democratic government, sought a legal cover from the apex court. This happened for the first time when the rather infamous judgment was given in the Tameezuddin case by Justice Munir in which he invoked the ‘Doctrine of Necessity’ to accommodate dictatorial rule. Jurists are in agreement that this was the basis that paved the way for all future dictators who in one way or the other took advantage of the same ‘Doctrine of Necessity’ and legitimised their dictatorship. If this didn’t not happen, Pakistan would not have passed the larger part of her existence under military rule and democracy could have had a chance to take root.

It was for this reason that the lawyers and all democratically inclined people were celebrating on July 20, as on this day the Supreme Court of Pakistan finally refused to bow down to the dictates from the GHQ, and take a giant leap towards independence. This won the respect, admiration of the people, and also restored their faith in the institution of the judiciary. This was possible after months of struggle initiated by lawyers and supported by the civil society and the media who had dared to challenge the status quo. Being associated with television journalism myself I had the advantage of being involved, and witnessing this change right in front of my eyes, as history was being made. On July 20, I felt elated because we could also bring some ‘good’ news to our viewers, who had previously got used to watching mostly ‘bad news’ on their screens. I spoke to jurists, retired generals, journalists, teachers, students, and ordinary members of the civil society. There was a sense of hope in their voices. They all had one thing to say --- this was the best thing that had happened to Pakistan.

Little did they know that their celebrations would not last long, and the same people who were celebrating a couple of months ago watched in dismay (on September 28) when the Supreme Court dismissed the numerous petitions seeking justice on the criteria of those who may run for the President’s office. The Constitution clearly states that no government servant may contest elections. It goes further, and requires that a person in government service, must wait for two years, after resignation or retirement from his job before entering politics. The Constitution also prevents the president of Pakistan from holding a dual office of profit.

But irrespective of constitutional technicalities, the question is simple. Does it not totally negate the very concept of democracy if an Army General in commando fatigue and armed with a gun (who usurped power in a military coup) is allowed to take part in politics? Is it not baffling that a gentleman who is in paid government employment in grade 22 will be allowed to not only take part in politics, but also be the head of state (president)? If this is not authoritarianism, then what is?

Another key question being asked by jurists is regarding the manner in which the petitions were dismissed. The short order states that the petitions are “not maintainable within the contemplation of Article 184(3) of the Constitution’’. Jurists say that this is mainly a ‘technicality’, and not a reflection on the ‘‘merits of the petitions”. If the petitions were simply ‘not maintainable’, then why couldn’t they have been dismissed at the outset? What was the need to have detailed hearings, arguments and counter arguments on the merits, which not only wasted courts’ valuable time, but also cost taxpayers money?

One prominent and fiery leader of the lawyers movement, Ali Ahmed Kurd, who is also the former vice-chair of the lawyers’ apex body, said, “This is not a judgment, but a dictation ...by a General.” Another lawyer I spoke to said, “Today, justice has been sacrificed on the altar of technicalities.”

It took decades for the court to break the shackles of the Doctrine of Necessity, after the infamous Tameezuddin case, people are now wondering if this latest judgment allowing another General has reversed everything to square one.

One of the judges while hearing the same case had remarked just two days ago, “The Doctrine of Necessity has been buried forever.” The resurrection of the doctrine within just two days has perplexed everyone, and one wonders, whether this ‘second coming’ of the doctrine has now given ‘uniformed democracy’ a licence in Pakistan? Many in the legal fraternity have not lost hope. They believe that the constitutional challenges facing the General are not over yet. There are yet further “eligibility questions” that could be raised before the Election Commission. Whatever the outcome, some of the points raised here are likely to be asked in the coming days.

Javed Malik is a lawyer and leading television journalist he may be contacted on javedmalik78@yahoo.co