Constituionalism of a Political Problem

Constitutionalism
of a political problem

A carefully-drafted and brilliant document, the ‘Murree-Bhurban declaration’ recognises that the restoration of the deposed judges is a political problem

By Faisal Siddiqi

A vigorous debate about the restoration of the deposed judges has monopolised the public discourse these days. Although, in principle, there is no disagreement that the deposed judges can be restored, the disagreement is about the legal and constitutional procedure to be adopted to restore the deposed judges.

The debate is dominated by two schools of thought. One school of thought i.e. the pro-Musharraf school, is of the view that the deposed judges can only be restored through a constitutional amendment repealing the ‘amendments’ made by Pervez Musharraf after Nov 3, 2007. Whereas the other school of thought i.e. the anti-Musharraf school, is of the view that no such constitutional amendment is required to restore the deposed judges and the deposed judges can be restored through various legal and constitutional instruments e.g. verbal instructions to the police allowing the deposed judges to again occupy their respective Superior Courts or an executive order rescinding all the ‘legal’ instruments issued by Pervez Musharraf post-Nov 2, 2007, or a bill moved in the National Assembly rejecting the post-Nov 2, 2007, ‘legal’ instruments and ‘amendments’ made by Musharraf, or a simple law/Act of parliament nullifying the effect of the judgment dated: Nov 23, 2007, of the Supreme Court under the Chief Justice, Abdul Hameed Dogar, which validated the ‘extra-constitutional’ actions of Pervez Musharraf.

An interesting legal and constitutional twist to this debate has now been introduced by the ‘Murree-Bhurban declaration’ in which the dominant parliamentary parties have now resolved to restore “the deposed judges as it was on Nov 2, 2007 shall be brought about through a parliamentary resolution to be passed in the National Assembly within 30 days of the formation of the federal government”.

Two puzzling questions arise in relation to the abovementioned debate. Firstly, if the post-Nov 2, 2007, actions of Pervez Musharraf to remove the Superior Court Justices are un-constitutional then why is there so much confusion about the legal and constitutional procedure to be adopted to restore the deposed judges. More importantly, if the removal of Superior Court Justices is a straightforward un-constitutional act then why is there a proliferation of different and distinct solutions for restoration of the judges even within the anti-Musharraf school of thought. Shouldn’t any legal and constitutional problem have one right legal and constitutional answer/solution and not a proliferation of different and distinct answers/solutions? How does one explain this paradox of multiple alternatives?. Secondly, the restoration of the deposed judges through “a parliamentary resolution to be passed in the National Assembly” as suggested by the dominant parliamentary parties is clearly a solution dominated by the political logic of democracy merely using the legal instrument of a parliamentary resolution, which parliamentary resolution, in strictly legal terms, is not binding as distinct from a simple Act of Parliament or a Constitutional Amendment which are legally binding. Are the dominant parliamentary parties mistaken in trying to solve a legal and constitutional problem through mainly political means?

In order to understand the abovementioned problems, it is important to understand the doctrine of legitimacy which forms the basis of the post-Nov 2, 2007, Musharraf Regime. Post Nov 2, 2007, Pervez Musharraf issued various instruments, like the Proclamation of Emergency, Provisional Constitution Order No.1 of 2007, Oath of office (Judges) Order, 2007, Constitution (Amendment) and (Second Amendment) Orders of 2007 and Revocation of Proclamation of Emergency Order, 2007, in order to provide a legitimate basis to suspend and change the Constitution and to remove the Superior Court Justices. These aforementioned various instruments [i.e. the PCO, Oath of Office (Judges) Order etc.] are not self-legitimising instruments but rather derive their legitimacy from the fact that these aforementioned instruments have been “declared to have been validly made by the Chief of Army Staff/President” by the Supreme Court under the Chief Justice, Abdul Hameed Dogar, in its judgment dated: Nov 23, 2007, in the case of ‘Tika Iqbal Muhammad Khan Versus General Pervez Musharraf and Others’ [herein after referred to as the 'Judgment dated: Nov 23rd, 2007, in the Emergency case']. The doctrine of legitimacy which forms the basis of the post-Nov 2, 2007, Musharraf Regime, as propounded by the Supreme Court in the Judgment dated: Nov 23, 2007, in the Emergency case contains the following argument:

(a) It was categorically conceded by the counsels of the Chief of Army Staff/President before the Supreme Court that the abovementioned various instruments [i.e. the PCO, Oath of Office (Judges) Order etc.] were not constitutional or legal but rather ‘extra-constitutional’ [see paras 9, 10, 18 and 41 of the Judgment dated: Nov 23, 2007, in the Emergency case]. In other words, the actions of Pervez Musharraf were admittedly not constitutional and not legal.

(b) The Supreme Court in its Judgment dated: Nov 23, 2007, in the Emergency case declared that the abovementioned various instruments [i.e. the PCO, Oath of Office (Judges) Order etc.] are not constitutional but are rather ‘extra-constitutional’ [paras 36 and 40 and page 109 of the Judgment dated: Nov 23, 2007, in the Emergency case]. Therefore, the doctrine of legitimacy as propounded by the Supreme Court is admittedly not based on any constitutional or legal provision for the simple reason that the actions themselves are admittedly not constitutional or legal.

(c) In view of the above, the Supreme Court validated the abovementioned various instruments [i.e. the PCO, Oath of Office (Judges) Order etc.] not on constitutional grounds but on grounds of “state necessity and for the welfare of the people” [paras 36 and 57 of the Judgment dated: Nov 23, 2007, in the Emergency case]. Therefore, the doctrine of legitimacy as propounded by the Supreme Court in the Judgment dated: Nov 23, 2007, in the Emergency case is a doctrine of extra-constitutional validation. The very term ‘extra-constitutional validation’ presumes that actions which are being validated are not constitutional or legal.

(d) The doctrine of extra-constitutional validation as propounded by the Supreme Court in the Judgment dated: Nov 23, 2007, in the Emergency case is not a doctrine based on any constitutional or legal provision because there is no provision in the Constitution or in any law which allows the validation of any ‘extra-constitutional’ measures. It is an oxymoron to argue that the Supreme Court can validate unconstitutional actions on constitutional grounds because the Supreme Court cannot allow the suspension or destruction of the very Constitution which creates it and gives it its powers.

(e) The Supreme Court also tries to base the doctrine of extra-constitutional validation on the basis of past Supreme Court judgments [page 109 of the Judgment dated: Nov 23, 2007, in the Emergency case] like the ‘Begum Nusrat Bhutto case’ [i.e. which validated Zia-ul-Haq's Martial Law] and the ‘Syed Zafar Ali Shah case’ [i.e. which validated Musharraf's 1999 Martial Law]. This argument relies on the doctrine of precedent. But there are two problems with this approach. Firstly, this is a circular argument because these very aforementioned cases of ‘Begum Nusrat Bhutto case’ and the ‘Syed Zafar Ali Shah case’ were validated on the same doctrine of extra-constitutional validation. Secondly, there is another line of Supreme Court judgments in the ‘Asma Jilani case’ [i.e. which invalidated Yahya Khan's martial law] and the ‘Sh. Liaquat Hussain case (PLD 1999 SC 504)’ [i.e. rejected the extra-constitutional role of the armed forces] which have rejected the theory of un-constitutional or extra-constitutional or martial law actions or takeovers. Therefore, in view of conflicting judgments and precedents, the doctrine of extra-constitutional validation cannot primarily be based on the law of precedent.

What does the Judgment dated: Nov 23, 2007, in the Emergency case tell us? On Nov 3, 2007, Pervez Musharraf was of the view [rightly or wrongly] that he was faced with a crisis. He had constitutional choices based on his constitutional powers to deal with this perceived crisis. But Pervez Musharraf decided to take actions which were admittedly extra-constitutional or unconstitutional. These extra-constitutional or unconstitutional actions of post-Nov 2, 2007, were not constitutional choices [i.e. based on his constitutional powers] but rather political choices or decisions based on his de-facto political power. The post-Nov 2, 2007, extra-constitutional or unconstitutional actions of Pervez Musharraf were political to the core using the extremely weak facade of legality. The Supreme Court faced with such extra-constitutional or unconstitutional actions of post-Nov 2, 2007, also had constitutional choices. It could solve this admittedly extra-constitutional or unconstitutional problem by declaring the actions of post-Nov 2, 2007, as unconstitutional. But the Supreme Court decided to take a different non-constitutional route. The Supreme Court by upholding the post-Nov 2, 2007, actions as valid on the doctrine of extra-constitutional validation accepted the political basis of the post-Nov 2, 2007, actions. Therefore, the doctrine of extra-constitutional validation propounded by the Supreme Court in the Judgment dated: Nov 23, 2007, in the Emergency case is theoretically founded on a political basis or choice and not a constitutional or legal basis.

Since the post-Nov 2, 2007, actions [including the action to remove the Superior Court Justices] of Pervez Musharraf is based on his de-facto political power and since the doctrine of extra-constitutional validation [which also validated the removal of Superior Court Justices] is theoretically founded on a political basis or choice then both the problem of the removal and the restoration of the deposed judges is primarily a political problem or a problem of political choices.

Let me further explain as to what I mean by a political problem. Firstly, the removal of the Superior Court Justices on or after Nov 3, 2007, is not based on the Constitution or any law. Secondly, the doctrine of validation is also not based on any provision of the Constitution or any law. Therefore, how can one say that the right solution for the restoration of the deposed judges is contained in the Constitution or in any law. If the removal of the deposed judges was not constitutional or legal then how can one say that the right solution among the different and distinct constitutional and legal solutions suggested by the anti-Musharraf school of thought can be judged on the parameters of the Constitution or on any law.

In other words, an extra-constitutional or unconstitutional act of the removal of the deposed judges is prima facie illegal and do not require a constitutional or legal solution as there are no constitutional or legal obstacles impeding the restoration of the deposed judges. There are, of course, political, practical and administrative obstacles [but not constitutional or legal] to the restoration of the deposed judges. All that is required is the political will, agency and road map to restore these deposed judges. It is precisely for this reason that there are different and distinct constitutional and legal solutions being offered by the anti-Musharraf school of thought.

As there are no constitutional or legal obstacles impeding the restoration of the deposed judges, the politicians have a variety of choices of constitutional and legal solutions to adopt depending on their political strategy. In short, constitutionalism and legalism is dependent on political choices and the challenge is to devise an effective constitutionalism of a political problem.

This is where the brilliance of the ‘Murree-Bhurban declaration’ comes in. At the heart of the ‘Murree-Bhurban declaration’ is the recognition of the fact that the restoration of the deposed judges is a political problem. A carefully drafted document, its brilliance is more evident when the declaration is de-constructed into its various aspects:

(a) “restoration of the deposed judges as it was on November 2nd, 2007″: In crystal clarity, the dominant parliamentary parties have recognised the objective and not made any political compromises on this principle issue. In political terms, it appeals to the core political constituencies of the dominant parliamentary parties i.e. the general public especially the lawyers.

(b) “shall be brought about through a parliamentary resolution”: The method of the restoration of the deposed judges through a parliamentary resolution is of far reaching political and constitutional significance. Firstly, the parliamentary resolution is the will of parliament i.e. a voice of the people of Pakistan. This judicial crisis is a political conflict between the majoritarian democratic forces and a neo-colonial presidency. The message of the parliamentary resolution is that this battle for the restoration of the deposed judges will be fought and won only if the will of the people is recognised and implemented. Secondly, on the face of it a parliamentary resolution is strictly not binding as it expresses merely the view of the parliament. But this is precisely the brilliance of this solution. If there are no constitutional and legal obstacles to the restoration of the judges then why do we need anything more than a parliamentary resolution. The parliamentary resolution would be based on the Order dated: Nov 3, 2007, of the seven member bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry which restrained the removal of any judge under the PCO, 2007, or the Oath of Office (Judges) Order, 2007.

This parliamentary resolution will be further based on a reading of our judicial history which clearly shows that no amendments by any dictator have been considered to be part of the Constitution until the amendments have been validated by parliament.

Thirdly, the parliament through this parliamentary resolution questions the monopoly of the Supreme Court in matters of extra-constitutional actions. By accepting the aforementioned Order dated: Nov 3, 2007, of the seven member bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry, as a declaration of constitutional law instead of the Judgment dated: Nov 23, 2007, of the Supreme Court under Chief Justice, Abdul Hameed Dogar, in the Emergency case, the parliament is challenging the Supreme Court’s doctrine of extra-constitutional validation on the ground that the Constitution, and not the Supreme Court, is supreme.

(c) “parliamentary resolution to be passed in the National Assembly”: As there are no constitutional and legal obstacles to the restoration of the judges, the parliamentary resolution could have been passed in either of the two houses. There are two significant aspects to the National Assembly. Firstly, it is the newly elected National Assembly, and not the Senate, which really expresses the mood and will of the people of Pakistan at this juncture of our political history. Secondly, in terms of political agency as expressed in numbers, the dominant parliamentary parties have a majority in the National Assembly which will enable them to pass the parliamentary resolution.

(d) “within 30 days”: The time period recognises the urgency and priority of this issue but even more importantly, it expresses the recognition that in this political battle between the will of the people and a neo-colonial presidency, time is needed both to prepare for the political conflict as well as to leave time for any political settlement which may, or may not, be achieved in order to avoid a political show down.

(e) “within 30 days of the formation of the Federal government”: Although the will of parliament i.e. a voice of the people of Pakistan, will be expressed through a parliamentary resolution, the politicians understand that any political conflict is a conflict of power. The federal government is the repository of the coercive, executive and administrative powers of the state. The power of the federal government will be required not only to counter the political challenge of the neo-colonial presidency but also to implement the constitutional and legal road map for the restoration of the deposed judges. Political realism is also at the heart of this Murree-Bhurban Declaration.

Does the Murree-Bhurban Declaration guarantee the restoration of the deposed judges? Sadly, there are no guarantees in life or politics. But what it does indicate is the fact that our politicians have a much deeper understanding of these constitutional and legal issues than we think and that we seem to be in safe hands. Who [i.e. especially our chattering classes] would have thought that Mr. Asif Ali Zardari and Mr. Nawaz Sharif would trump the Pirzadas and Malik Qayyums of our neo-colonial state?

(The writer, a senior advocate, is a partner of Munir A. Malik.

Email: Siddiqilaw@yahoo.com)