For the third time in Pakistans history, the Supreme Court (SC) has come to the rescue of military governments seeking some legitimacy. In a unanimous decision of its 12-member Full Bench, the SC has validated the October 12, 99, military coup and all subsequent actions of the military junta on the basis of the doctrine of state necessity. In the context of the judges of the superior judiciary being asked to take a fresh oath under the Provisional Constitutional Order of October 14, 99, the verdict came as no surprise.
The SC found the extraordinary events of October to be "merely" a case of constitutional deviation for a transitional period so as to enable the Chief Executive (CE) to achieve his objectives. This judgement not only makes Musharrafs assumption of power valid, but goes on to say that he is entitled to even amend the Constitution in case it provides no solutions for the achievement of his declared objectives. This bestowal of power to amend the Constitution not only seems excessive but risky, given the similar example of the leeway the SC gave to Gen Zia. The SC does seek to protect the Constitutions "salient features"-the judiciarys independence, federalism and parliamentary form of government-all blended with Islamic provisions. But it also allows the regime to deviate from fundamental rights guaranteed in the Constitution. Post facto justification for the coup is sought in the misgovernance and litany of authoritarian tendencies of Nawaz Sharifs government. In fact, the coup was not a result of the track record of the Sharif government, but rather a direct outcome of the events of that particular day-the dismissal of the army chief, diversion of the plane etc. Admittedly, though, the events of October 12 were in the making as early as February 99, when the Lahore Declaration was signed.
Sharifs one-man rule has been criticised by the SC as detrimental to institutional democracy and constitutional governance. But has the drift towards one-man rule been replaced by a broader representation? The SC bemoans the fact that the Constitution offered no solution for the crisis that emerged that day in October. It regrets the absence of the fig-leaf of Article 58(2)(b) of the Constitution (which allowed Presidents to dismiss elected governments), and accepts the tacit silence and lack of peoples protest against the military takeover as an implied consent! First of all, no Constitution can by itself offer a solution for military interventionism. Article 58(2)(b) provided a civilian instrument (the President) to the military and bureaucracy when they wanted a particular elected government removed. It was validly repealed in Parliament and sank unmourned for the damage it wrought to democratic continuity between 88 and 96. As for Pakistans people, theyre simply suffering from exhaustion at having been betrayed by every leader they reposed their confidence in. Even if they did initially clutch at the straw of hope the new military government was thought to offer, that hope too has run its course by now, given that their lives are certainly not less miserable, and are arguably worse. Their silence is no approval of the coup and the military regime, but is a sorry commentary on, and reflection of, their disillusionment with whatever dispensation rules the roost.
The SC has elevated the office of Chief of Army Staff (COAS) and Chairman Joint Chiefs of Staff Committee to a constitutional post. In other words, it wasnt within the constitutional purview of the former PM to remove the holder of these offices. Sharifs action and the subsequent affair with the aircraft carrying the COAS may not have been prudent, but one fails to understand why an appointing authority (the PM) does not have the right to fire. And how exactly does a command of the armed forces become a constitutional office? The SC has laid down a timeframe for the restoration of a civilian, democratic government by limiting the juntas tenure to three years from the date of the takeover. The regimes reaction to the SC verdict indicates that its happy with the validation of the takeover, but not the timeframe. The SC says that 90 days before the expiry of the October 12, 2002 deadline, the CE must appoint a date for general elections. But this leaves room for the CE to appoint a date which may extend beyond the deadline!
The junta has other options too. It can return to the SC once the deadline edges closer and either argue that its progressing towards its objectives, but needs more time, or that it isnt making sufficient progress and, therefore, still needs more time. The power of a judicial review retained by the SC includes the power to review the Proclamation of Emergency. This review could conceivably either persuade the court to stick to the cut-off date or extend it. Alternatively, the government could, now that it has the power to amend the Constitution, find amendments that would help extend its tenure. If all else fails, another extra-constitutional deviation cant be ruled out in 2002. The SC verdict appears to have left the door open for future military interventions, which in turn can be validated under the state necessity doctrine. The spelling out of a timeframe may relieve some international pressure on the regime, but its unfortunate that in Pakistani jurisprudence, the doctrine of (state) necessity seems to have found permanent refuge. So long as this judicial validation of military interventions remains available, the path to democracy is littered with potential extra-constitutional deviations.
Given the dangers of continuing tension between India and Pakistan, New Delhi should reconsider its rejection of talks with Musharrafs regime despite the very real obstacles in the path of a meaningful dialogue. The very dynamics of interaction, however limited in scope, could engender a helpful climate to defuse the Kashmir front and pave the way for a critically needed normalisation of relations.
(The writer is an Assistant Editor with The Nation, Lahore)
