Supreme Court Judgement on Military Takeover

Columnist Lt Col (Retd) A. RASHID writes about the SC Judgment on the Oct 12 military takeover.

Landmark judgement by the Supreme Court of Pakistan, on the military takeover, will go a long way in clearing the perspective of political power in Pakistan. The judgement has been subjected to severe criticism from many directions. Most of the criticism is not sustainable, being hypothetical. The criticism is based only on legal hair splitting, ignoring the realities on the ground. One must consider the reality that, after all, Supreme Court too is a part of Pakistan and is not functioning in an island outside the country. The apex court has also to sail or sink along with the rest of the nation. Before getting to the analysis of legal and constitutional issues involved in the case, it would be fair to go over the stalemated contradictions faced by the higher judiciary. A military coup took place in the country on 12 October 1999 and General Pervez Musharraf, after suspending the constitution, assumed the position of Chief Executive of the country, removing an elected government and the Prime Minister. The Prime Minister was later charged and convicted for hijacking and terrorism. This conviction by implication, legitimised as well as legalised the military takeover. The court that heard and decided the case comprised of the judges all of whom had sworn under Provisional Constitutional Order (PCO). Per se, the judges who had chosen to swear according to the PCO issued by the military government had no obligation to the constitution of Pakistan, which had already been suspended by the military government, in any case. Therefore, the entire criticism emanating from the standpoint of violation of constitution does not holdground and rather becomes hypothetical.This reality naturally raises the question about the competence of the court to hear the constitutional petition against military takeover.That the judges had chosen to take their oath under the PCO, which technically disqualifies them to continue to serve as the judges of the Supreme Court of Pakistan, leave alone hearing the constitutional petition. For the sake of legal hair splitting one could pause to think for a moment but to promote the spirit of justice and law, the argument becomes frivolous. That is why the honourable court remained reticent on this obvious question. By doing so the Supreme Court saved the country from a constitutional impasse on the one had and on the other hand saved the nation to become a laughing stock of the world, on the other. In this analysis the another question of most vital bearing emerges that how could a body that suspends the constitution of the country be declared justified to do so. The answer to this short question entails a lengthy answer. The first thing is, as is said earlier, that it is a reality that the elected assemblies and the government have been sent packing home and a military establishment has replaced them and the day-to-day functioning of the state is going on. Additionally, this fact is also very obvious that the military government would not have been pushed in case the Supreme Court had upheld the constitutional petition except that it would have confounded the confusion and caused loss of time and resources. Then why create an unnecessary confusion and overall embarrassment for the nation. Secondly, the conviction of the erstwhile Prime Minister in hijacking and terrorism indicates that the elected government was not fit enough to remain custodian of country’s trust. Thirdly, it is not possible to match force with law. The military government toppled the elected government by force. How ridiculous it would be to tell them that they should rescind their action because it is illegal or unconstitutional.  Finally, the people of Pakistan are the authors of all codes of governance including the constitution, the assemblies and the structure of the government. This is done by the people to secure their unalienable right of ‘life, liberty and the pursuit of happiness’. To quote from the Declaration of Independence, “To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends it is the right of the people to alter or to abolish it, and to institute new government, laying its foundations on such principles and organizing its powers in such forms, as to them shall seem most likely to effect their safety and happiness.” On the military takeover the people of Pakistan accorded an unprecedented welcome to the new order because the previous government had thoroughly lost their trust. Not a single voice was raised against the event including the leadership of the then ruling party.The military government has proclaimed their agenda of reforms. Essentially the items are economic recovery, accountability and electoral reforms. On all the three fronts serious efforts are underway. The common sense dictated that the present establishment should take around three years to complete their avowed goals, which the Supreme Court has allowed in their judgement.The Supreme Court of Pakistan has done a great service to the country by taking a realistic view of the prevailing conditions in the country and has conformed their judgement to the objective realities, instead of becoming hostage to the dry and callous legal provisions. By doing so they have averted a collusion course with the military government, which requires all assistance from higher judiciary to bail the country out of the present predicament. To secure a peaceful transition to democracy, it would be in the interest of the federation to assist the military government in achieving that goal as expeditiously as possible. As the realities are, any resistance would not serve any useful purpose except procrastinating the process, entailing loss of valuable national time.