After the restoration

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

Now that we are recovering from the euphoria of restoration, it might be an opportune moment to dwell on the logical follow-up required to fix our constitutional structure and deformed jurisprudence. The principled restoration of the deposed judiciary through an executive order is the first formal acknowledgement by the government of Pakistan that General Musharraf's actions of Nov 3, 2007, were unconstitutional. Thus, we now have in place a chief justice and other deposed judges holding the reigns of the judicial branch who had pledged to protect and defend the Constitution as it stood before Musharraf molested it on Nov 3. We also have in the ranks PCO judges, who swore to uphold and abide by the edicts of the general. In his post-Nov 3 phase of being the constitution-unto-himself phase, the general, by scribbling a new provision into the Constitution, also created an Islamabad High Court, which now continues to function as a valid court of justice. This is a much-needed court, but its constitutional status remains to be legitimised.

The question now vexing everyone is, how do we resolve the contradictions we are mired in? Can we live with a situation where the chief justice and deposed judges have been restored on an assumption that negates the explicit ruling of the Dogar Court in the Iqbal Tikka Mohammed Khan case (which "validated" Musharraf's unconstitutional actions of Nov 3)? If suspending and molesting the Constitution is an abhorrent crime under our fundamental law, aptly labelled as treason, can we have the perpetrator of such crime run amok amongst us making speeches to the media and every nincompoop still desirous of being saved by an ex-Khaki? Now that restitution of the constitutional judiciary has been accomplished, should the retribution of such vanguards of justice who aided and abetted the transgression of our fundamental law

not be a logical next step?

This is the first time that we have found ourselves in a situation where effective legal defences against future praetorian rule, backed by mass public opinion, can be constructed. We have a judiciary headed by judges who successfully withstood the coercion of a dictator and the enticing logic of expediency. We have an army that has limited interest (and ability) at the moment to interfere directly with the political and legal processes. We have the erstwhile dictator still around, and as conceited today as he was a decade back, if not more. We have no other stakeholders who would like to hold the necks out to shield Musharraf from accountability of his illegal acts. And we have a nation yearning for the enforcement of a rule of law that doesn't distinguish between offenders on the basis of their station in life.

The issue of undoing the consequences of Nov 3 might have been a political question over the last year and a half, while we had a judiciary that had sworn to protect the general and was complicit in his constitutional transgression. It is a purely legal question now that must be resolved in accordance with the dictates of our Constitution. A mass public movement brought about the restoration of the judges, thereby undoing one of the consequences of the unconstitutional acts of Nov 3. But undoing the act itself, addressing its remaining consequences and holding the transgressors liable will have to be brought about through formal judicial processes. In order to begin cleaning up the debris left behind by Musharraf, the court will need to start with Musharraf himself and the legality of his Nov 3 actions.

Concepts such as "holding the Constitution in abeyance" and "extra-constitutional actions" are contrivances of our Sharifuddin Pirzadas and, strictly speaking, mean nothing more than "transgressing the Constitution" and "unconstitutional," respectively. Our legal vultures have deliberately introduced such fabrications to window-dress the gaping holes poked in our Constitution by dictators. The fake distinction between "unconstitutional" and "extra-constitutional" creates wriggle room for "doctrines of necessity" to be sneaked in and such lexicon should therefore be excluded by our Supreme Court to cleanse our constitutional jurisprudence.

One lesson brought home by the rule-of-law movement was that the world of justice must have no room for expediency. There is overwhelming legal and political consensus in Pakistan that Musharraf broke the law and abrogated the Constitution on Nov 3, as a consequence of which the chief justice and other deposed judges were restored through an executive order. Not charging and trying Musharraf for criminal conduct is thus indefensible. It is not really for the court to determine whether or not it is desirable to try Musharraf, for the court doesn't have such arbitrary discretion. Article 6 of the Constitution mandates that "any person who abrogates or attempts to abrogate or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason." And it further states that the "Parliament shall by law provide for the punishment of persons found guilty of high treason."

So let the court rule on the culpability of Musharraf under Article 6, and the Parliament can then debate the merit or desirability of actually punishing him if he is found guilty. Judicial matters are to be decided on legal principle, which leaves no room for expediency and political considerations in judicial discourse. However, the Parliament can draft law and make exception on the basis of policy compromises, and should it choose not to punish Musharraf in some "larger good" of the country, so be it. Further, even if the Parliament wishes to punish Musharraf, President Zardari can always pardon him in exercise of his discretionary powers under Article 45 of the Constitution. If the constitutional jurisprudence of Pakistan is to be resurrected and another khaki saviour is to be deterred from conquering his nation yet again, there is need to breath life into Article 6. The actual fact of Musharraf serving a sentence is not as relevant. But his getting convicted for molesting the Constitution certainly is.

But in addressing the actions of Nov 3, the Supreme Court will also need to delineate and define its own authority. This nation has moved back and forth between the Doctrine of Necessity being declared dead (as in the Asma Jillani case), to it being brought back from the grave (as in the Nusrat Bhutto case). What we require is a norm-setting epochal ruling that articulates a theory of democracy and holds in unequivocal terms that the Supreme Court, as a creature of the Constitution that derives all its authority from this fundamental law, possesses absolutely no authority to validate an unconstitutional action. Such concept once entrenched as part of our constitutional law and thinking will remove the stopgap stage presently available to our dictators, where they get themselves "validated" by handpicked court, before coercing or co-opting an engineered Parliament into providing constitutional cover to illegal acts.

Only after Musharraf's culpability is established will there be room to consider the role of judges who were complicit in his acts. It makes no legal or logical sense to go hounding accomplices, when the legality or lack-thereof of the act that they facilitated is yet to be determined. Presently there are at least five categories of judges. One, those led by the Chief Justice that have just been restored. Two, those who didn't swear an oath on Nov 3, but returned to the court last year under the Naek formula after swearing a fresh oath under the Constitution. Three, those led by Justice Dogar, who swore an oath to protect Musharraf's PCO on Nov 3. Four, those appointed after Nov 3, 2007, in consultation with Justice Dogar and have been confirmed after serving as additional judges for one year. And five, those appointed after Nov 3, 2007, in consultation with Justice Dogar by the Musharraf and Zardari regimes and are still serving as additional judges.

As for the fourth and fifth category, the Supreme Court will have to determine, as part of its review of the Nov 3 acts, whether or not the mandatory process of consulting the chief justice in appointing new judges was abided by while the de jure chief justice was deposed. In any event, judges from the fifth category will stand removed if they are not confirmed at the end of their initial term in office. Those in the first three categories were the constitutionally appointed judges as of Nov 3, 2007. None of them can be removed except in accordance with the procedure laid out in Article 209 of the Constitution. It would have been heartening if members of the Supreme Court bench that rendered the Tikka Iqbal Mohammad Khan ruling had accepted their fault and resigned on restitution of the deposed judges. But, then, it is probably unrealistic to expect scroungers to grow integrity overnight.

Once the culpability of Musharraf's acts is established, it will be for the government or the Supreme Judicial Council to determine if some judges in the third category above, who abetted Musharaf's acts, should be charged with misconduct and/or treason. It is time for the Supreme Court to look at the Nov 3 actions in a manner that justice is not only done but also seen to be done. And if the judiciary falters in holding its own accountable, the Parliament must institute a new mechanism for judicial accountability. To restate the obvious, the rule of law must equally apply to all citizens without exception, including judges and generals.



Email: sattar@post.harvard.edu