Court's epic journey

The writer is a lawyer based in Islamabad.

Even lawyers accustomed to deciphering legalese for a living hardly expect to stumble into a lengthy legal text the reading of which could itself be deemed a source of pleasure. But mulling over the 379-page judgment rendered in the PCO Judges Case was simply exhilarating. This judgment endeavors to clean up our rotten constitutional jurisprudence and lay down a solid legal foundation to support a constitutional and political structure rooted in rule of law and ethical values. It is no less than a watershed in the history of our nation that has been struggling for 62 years to embody the spirit of constitutionalism. Whether viewed as the end of a volatile phase of our rule of law movement or the starting point of a born-again independent court that is translating the rhetoric of democracy and rule of law into practical reality, this ruling must be a source of pride and reassurance for all the starry-eyed dreamers whose conviction in the ability of ordinary right-thinking people to engineer progressive change actually resulted in a miracle.

The parts of the ruling making headlines include (i) the candid declaration that General Musharraf is a usurper liable to be tried for treason, (ii) reasoning that extinguishes any room for excuses that the still-serving PCO judges might have been conjuring up since the short order to avoid impeachment proceedings before the Supreme Judicial Council, and (iii) the mechanism laid out to gauge the validity of Musharraf's last-minute treacherous legislative measures including the NRO. But the most lasting contribution of this ruling will be the fact that our apex court has finally authored a clear doctrine of democracy entrenched in the principle of constitutionalism that excludes all theoretical arguments permitting adventurism in the name of necessity. And this doctrine is braced not by noble intentions of the judges presently serving on the bench, but by the unequivocal

declaration that the Constitution grants not even the Supreme Court the authority to declare an extra-constitutional action as valid.

While reading the initial part of the judgment that summarizes our convoluted constitutional history and reflects on the Zafar Ali Shah case, one has a sinking feeling that the court might try and justify the shameful circumstances in which the bench validated Musharraf's coup of 1999 – especially as Chief Justice Iftikhar Chaudhary, who has authored the present ruling was also a member of the bench that ruled on the Zafar Ali Shah case. But what one finds instead is neither self-effacing defensiveness nor self-congratulating aggression born out of guilt and aimed at laying the blame of the erstwhile injudicious demeanor of the court elsewhere; rather a clear admission of mistakes in a tone of objective self-censure meant to recognize the errors committed in interpreting the Constitution and marked with an aim to move forward with a sense of purpose.

"A wrong was committed in 1954 by the Federal Court with its decision on Maulvi Tamizuddin Khan's case, given not on merits, but on a purely legal – rather hyper-technical question, continued to be perpetuated every now and then under the garb of different theories and doctrines," states the ruling and adds that, "had the court adopted a constitutional approach in the very first case, and followed the same in just one or two more cases if such an occasion arose, the course of history would have been certainly not the one that this nation has treaded all along." Admission of past juridical errors seems to set the court free to chart out a principled course for the future, and this is has been accomplished by formulating the twin doctrine of democracy and constitutionalism.

Tracing the democratic history of Pakistan's independence, the ruling states that "the people of Pakistan are committed and dedicated to preserving democracy achieved by their unremitting struggle against oppression and tyranny, as duly voiced and recognized in the Preamble to the Constitution of the Islamic Republic of Pakistan", and that, "military rule, direct or indirect, is to be shunned once and for all … let it be made clear that it was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever." The theory of democracy rests on explicit provisions of the Constitution and highlights the mandatory nature of civilian control of the military under Pakistan's fundamental law. "In the course of the discharge of his duties" the court explains, "a soldier is obligated to seeing that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated, and to say the least, it is not held in abeyance and it is not amended by an authority not competent to do so under the Constitution."

While holding that Musharraf "failed to abide by his oath to preserve, protect and defend the Constitution", the court rules out the ridiculous notion that there can arise circumstances where the Constitution provides no solution and thus the logic of necessity must kick in. "The Constitution was framed to continue to be in force at all time," states the court and that, "by Article 6, an in-built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone." Thus highlighting that Article 6 is no dead letter of the law, the court concludes that, "it is hereby firmly laid down that the holding in abeyance of the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorized under the Constitution is nothing but an overthrowing of the Constitution, so to say, subversion of the Constitution and thus constitutes the offense of high treason."

But this time around the court's support for constitutionalism, democracy and civilian control of the military is not grounded in noble aspirations of judges, but their interpretation of nature of legal authority as exists under our Constitution. "We lay it down firmly that the assumption of power by an authority not mentioned in the Constitution would be unconstitutional, illegal and void ab initio and not liable to be recognized by any court, including the Supreme Court," states the court, and further that "a judge playing any role in the recognition of such assumption of power would be guilty of misconduct within the ambit of Article 209 of the Constitution." The sanction prescribed for usurpers (under Article 6) and for judges abetting subversion (under Article 6 and 209) is not just a product of the ire provoked by the misconduct of PCO judges after Nov 3, but flows from an elucidation of the source and nature of legitimate authority in a polity such as ours that is governed by a written constitution.

The most welcome aspect of the PCO Judges Case ruling is its candid statement that the Constitution is the source of all authority in Pakistan and the organs of the state can only exercise such authority as delegated to them under the Constitution. No institution or individual can lay claim to power not so delegated and no institution can validate or condone such a claim to power. Highlighting this doctrine of limited powers, the ruling states that, "amendments made by an authority not mentioned in the Constitution cannot be validated by any court including the Supreme Court," and "that neither the Supreme Court itself possesses any power to amend the Constitution, nor can it bestow any such power on any authority or any individual," was unfortunately done in the Zafar Ali Shah and Tikka Iqbal cases. In simple terms the court has held that (a) semantics will not work anymore and call subversion by any name – extra-constitutional, supra-constitutional or temporary abeyance, it will remain unconstitutional and subject to penalty under the law and the Constitution, and (b) being a creature of the Constitution itself with enumerated powers, the Supreme Court cannot give anyone what it doesn't have: the right to step outside the bounds of the Constitution.



(To be continued)

Email: sattar@post.harvard.edu