Law of Necessity… A Logical Recourse

Dear Ijaz,

First of all- this is an aside to your preamble- your first line is the classic exposition of the view taken by those who seek to defend military's role in Pakistan. Unfortunately the casualty in this is the truth... It maybe said that the gungho league leaders had their electoral base in UP and other Indian provinces... and therefore, the civil military bureaucracy hand in glove with the local feudal elite - the sort that was represented by the Tiwanas, Soomros and Bhuttos- managed to overthrow the weak league leadership first in the form of the One-Unit honking "Republican Party" and then direct Military Rule through Ayub's "revolution". However there can be no justification for the upstaging of civilian leadership- however corrupt or bad (and the leadership in 1958 was hardly tainted with the brush that today's politicians are). It is wrong and it is illegal period. That said... Pakistan's since 1958 has been tainted with military rule and it is a fact of life.

Now moving on to the legal side: The one gaping hole in your approach... a referral back to the Supreme Court because of the necessity has been violated is that the "constitutional order" that exists today is not dependent on the Supreme Court Judgement that validated the coup back then.

Indemnity - and I quite like the way you've used the word- in this case is retrospective and overriding. The 17th Amendment itself is the basis of this new constitutional order which over rides any and all judgements that existed pre-2004. In other words the 17th Amendment by the National Assembly is the basis of "constitutionality" and "legality" of General Musharraf's government. Hence there is no recourse I am afraid to the original judgement as the period for that ended on October 12, 2003. It gave Musharraf three years. Those three years went. Elections were held. A new national assembly came in. That new NA legitimised Musharraf ... that is the course that water has made for itself.


However... the real underlying issue upon which one may challenge the 17th Amendment is that the 17th Amendment violates the basic structure of the constitution of 1973... which is the current constitution.

What is the basic structure of the Pakistani constitution:

1. Federation.

2. Republic

3. (Parliamentary) Democratic state based on the will of the people

4. No law to be made repugnant to Islam or Islamic law.

Outside of these four things... everything may be altered and changed by an ordinary national assembly. The four basic things may also be changed by an elected constituent assembly... however that may come about.

Please note though that point 3 is not without challenge. There is nothing in the constitution that defines Pakistan as a parliamentary democracy.

At the end of the day... if the Supreme Court rejects the basic structure theory and rules that the national assembly is sovereign and can change the constitution at will by 2/3rds majority... no one can touch the 17th Amendment.

It may also be remembered that we have borrowed the basic structure theory from Indian constitutional law... especially the genius that is H M Seervai... the basic structure theory finds no justification in the English Constitutional law or the British Parliamentary tradition. However... there conventions are a strong check on the parliament... so a parliament may declare night day and day night but it won't because it knows better.

India (and likewise Pakistan) has good reason to adopt the basic structure theory. After all federal system itself is a departure from the pure parliamentary democracy which is undoubtedly unitary in nature. India with its federation of states and other compromises and compacts cannot afford a change in the basic structure. In Pakistan, the added dimension of law making being within the limits prescribed by the faith... makes the basic structure theory even more useful.

But rest assure... the basic structure theory is not - in my view- something necessarily binding for our supreme court. The doctrine of necessity... and more importantly the justifications given by Justice Munir in the Dosso case are all the pitfalls of the British legal system (which otherwise works well) and its application to a people so uncharacteristically British in their temperament... No I am not arguing that we give up the legal system but rather recognize the essence of it.

More later...

-YLH

Ijaz mian,

What are you talking about here, if teh military rule is not legalised, what will happen. Do you think any one will try the mushies for treason. No no one can do that. So the outcome is simple, the constitution of pakistan is not applicable to the army. They will do what ever they want.

The same is true for the jihadis, now they have demonstrated that they can defeat the army, they have their own country, with their own laws.

Then there are the jihadic criminals stealing vehicles to be transported to waziristan, killing people for a mobile phone, they are happy.

Then there are the rich, they have their own security guards, a few gets kidnapped for ransome, they pay the money and get out.

The poor, they some how eked out a living.

So ijaz mian, for whom is teh constituion for.

Tell me my friend. pakistan is a failed state.