The constitution matters

Daily: Pakistan Observer
Date: 18.09.08

As if the doctrine of necessity were not enough, the Pakistanis have now been entangled in
the doctrine of de facto status.

After November 3, 2007, two offices emerged glorious under the shadow of the de facto
doctrine: the President of Pakistan and the Chief Justice of Pakistan. After departure of the
President General (retired) Pervaiz Musharraf from the scene, the de facto status has been
left attached only to the Chief Justice of Pakistan, Justice Abdul Hameed Dogar (who is now
symbolizing the Supreme Court of Pakistan).

Musharraf was unfortunate in the sense that he left office of the president before the
impeachment mechanism, as laid down in the Constitution, could come into action. The
resolutions of the provincial assemblies to urge Musharraf to secure a vote of confidence
were not constitutional obligations; in the removal of Musharraf, no constitutional method
was invoked. It means that Musharraf was not recognized as the de jure President of
Pakistan. Musharraf stayed at and left the presidency as the de facto President of Pakistan.
The question is what is the future of the steps Musharraf took as the de facto President of

By administrating oath to the newly elected President Asif Ali Zardari, the de facto status of
the Chief Justice of Pakistan embraced another fold. This turn has become a major
impediment in the way of restoration of the judges sent home on November 3, 2007, by the
then Chief of Army, General Pervaiz Musharraf.

Now, when Zardari replied in the answer to a question at the press conference held in the
post-oath taking ceremony that the question of indemnification of Musharraf would be dealt
in the Parliament, the exact meaning of the statement was that the people had to wait till
March 2009 when the new election for the seats of Senate was due. Zardari may be hoping
for winning significant number of seats in the Senate to ensure the two-third majority in both
the Houses without the help of the PML-N. This aspect shows at least one thing: the PPP
and the PML-N have parted their ways.

The way the civil society has reacted to the blatant constitutional violations, the space for
imposition of Martial Law in its name has reduced to nil. Musharraf could neither use the
words Martial Law on October 12, 1999, nor on November 3, 2007. Each time, the word
‘Martial Law’ donned the mantle of ‘Emergency.’ No doubt, the pro-democracy international
scenario has also played its role in this regard.

Nevertheless, the country is yet to jettison the doctrine of necessity which enfolds any act of
extra-constitutional nature. The term ‘extra-constitutional’ has offered a safe corridor to the
coup makers to launch a coup (violate the Constitution) but get off scot-free. The modus
operandi is to issue a PCO, install a bench of the Supreme Court devoted to the coup-
maker and seek validation of the coup by the bench in the name of extra-constitutional
interpretation of the circumstances actuating the coup. Hence the most important point is
identification and interpretation of the reason for the coup. For the favourable detection
and explanation, a favourable bench of the Supreme Court is a must thing to be present
around. That is how the symbiotic relationship between the coup-maker and the higher
judiciary takes shape; the post-Nov-3 events zoomed in on the significance of this liaison.

For the Nov-3 acts of Musharraf, the doctrine of necessity was employed without
mentioning its name. Now, on various TV channels, Malik Qayyum, the ex-attorney general
of Pakistan, has been calling the Nov-3 act as ‘extra-constitutional’ which is the flip side of
the doctrine of necessity. The reason which has been forwarded to validate the extra-
constitutional nature of the Nov-3 acts is that the then Supreme Court headed by the (de
jure) Chief Justice Iftikhar Mohammad Chaudhry had been overstepping its limits: the
judicial activism had made it difficult for the executives of the country to run the affairs
smoothly. In short, the judicial activism has been declared – after being interpreted by the
post-Nov-3 (de facto) bench of the Supreme Court – the reason to justify the extra-
constitutional nature of the Nov-3 acts of Musharraf. In other words, there was no
‘unconstitutional’ point involved in the issue; for instance, the Nov-3 acts were not because
the presidential candidature of Musharraf had rendered him ineligible for contesting the
election. That is how, the identification of the cause and its subsequent interpretation has
played their roles. Further, it can be said that the doctrine of necessity and the doctrine of
de facto status converge in the incumbent Supreme Court.

The Court cannot authenticate any unconstitutional act as there is unavailable any such
precedent. Hence the problem was with the precedent available or not with a Court to
validate or not the Nov-3 acts of Musharraf. For an extra-constitutional situation, there are
available several precedents in the history of Pakistan. As behind precedents the courts
hide, the Nov-3 acts of Musharraf were declared extra-constitutional by the de facto bench
of the Supreme Court. Then, there comes the turn of the validation of the de facto bench of
the Supreme Court itself to make it a de jure bench; that can happen only through a
constitutional amendment.

In a nutshell, the forthcoming Eighteenth Constitutional Amendment has to do two main
things: firstly, change the status of the former President of Pakistan, General Pervaiz
Musharraf, and of the incumbent Chief Justice of Pakistan, Abdul Hameed Dogar, from de
facto to de jure; secondly, indemnify the Nov-3 acts of Musharraf and legalize the post-Nov-
3 decisions of the Supreme Court.

Hitherto, one thing is clear: the incumbent government is uninterested in restoration of the
deposed (dysfunctional) judges of the Supreme Court. The unconditional restoration would
mean that, inter alia, the Nov-3 acts of Musharraf were unconstitutional and not extra-
constitutional. If the Eighteenth Constitutional Amendment does not take place, the country
is bound to plunge into a constitutional crisis.

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