|
Page 1 of 2
Pakistan Judiciary Taught To Behave
Jai Prakash Sharma
The chain of events triggered by the show of defiance by Chief Justice Iftikhar Chaudhary on 9 March 2007 against the bullying by the Pakistan President reached its culmination with the declaration of emergency by Pakistan's President and COAS General Musharraf on 3 November 2007.This has generally come to be known, and with some justification, as Musharraf's second coup. In a country used to being governed directly by its military with occasional spells of democratically elected governments being permitted to function (but allowed to exercise only so much authority as the military rulers considered appropriate to trust them with), the latest episode should not be regarded as anything extraordinary. The present reversion to unmitigated military rule has however some novel and noteworthy features.
Coup against His own Government
Military authored coups normally involve the dismissal of a civilian government of the country by the military authorities by means of unconstitutional exercise of military power, complete or partial abrogation of the country's constitution and arrogation of all powers by the coup makers. In the instant case the coup maker was already in control enjoying almost absolute power but found the functioning of the country's judiciary even though not violating the constitution (a constitution made by Musharraf himself) too irksome. There was also a symbolic supplanting of the civilian authority by the military in as much as the emergency was declared by Musharraf not in his capacity as the President of Pakistan but as Pakistan's COAS.
The Doctrine Of Necessity And Demise Of Judiciary's Independence
Barely seven years after its birth, Pakistan lost the democratic facade its rulers had found it convenient to give to their Islamic creation. Pakistan's genes did not contain elements conducive to the development of a democratic culture the essential ingredients of which are the acceptance of dissent as also the acceptance by all organs of the state to function within the limits set for each by the constitution. Neither Jinnah nor the Muslim League were known to be votaries of democratic virtues. In fact Jinnah had bluntly reminded his followers that it was he and he alone who had won Pakistan for them. There were several other instances of Jinnah's autocratic functioning during his short tenure as the Governor General of Pakistan.
In 1954 Pakistan's Governor General Ghulam Mohammad took the extraordinary step of dissolving the Constituent Aassembly and dismissing the government of Khwaja Nazimuddin. The speaker of the assembly Maulvi Tamizuddin challenged the action before the Sind High Court which held the dissolution to be illegal. The Government went in appeal to the Chief Court (later renamed The Supreme Court) which set aside the High Court decision and upheld the action of the Governor General.
For legitimizing the Governor General's violation of the Constitution, Chief Justice Mohammad Munir enunciated a new legal principle which has come to be known as the "Doctrine of Necessity." The doctrine postulates that the country's constitution can be legitimately abrogated if it becomes necessary to do so for the preservation of the country. With the legal and the moral backing provided by this Doctrine to the strength of their tanks, guns and soldiers, military chiefs of Pakistan have had no difficulty in dismissing civilian governments or in ruling Pakistan from behind the veneer of civilian governments as they considered appropriate.
Simultaneously with the military's position becoming unchallengeable, the independence of Pakistan's judiciary suffered a near total eclipse. Without applying their mind to the issue whether the country really faced a situation in which abrogation of the constitution and assumption of total control by the military remained the sole avenue for preserving the country, the judiciary invariably supported the military's actions. In fact according to Baseer Naveed (a Pakistani human rights activist) the heads of Pakistan's Supreme Court made it a practice to seek prior instructions from the General Headquarters about the substance of the ruling that they were to give in such cases. Things came to such a pass that after Musharraf's Oct. 1999 coup when the judges of the higher courts were required to take fresh oaths of office under the PCO (Provisional Constitution Order) issued by Musharraf the Chief Justice asked and got the rest of the judges to swear the oaths on blank sheets of paper !!!
Last update : 27-02-2009 22:50
|
(0 vote)