Constitutional limits

THROUGHOUT Pakistan’s turbulent history, coup-makers and strongmen have looked to the courts to provide legitimacy to their extra-constitutional forays.
Whenever the courts have obliged, these actions have been justified by the ‘doctrine of necessity’, that odious principle used to legitimise, for example, Ghulam Mohammad’s dissolution of the Constituent Assembly, and later the Iskander Mirza-Ayub Khan military coup.
Today, as extreme political polarisation threatens Pakistan’s fragile democracy, and unelected forces tighten their grip, people are wondering whether this doctrine will again be resurrected. In this regard, the remarks made by Supreme Court Justice Athar Minallah at a recent event in the US regarding the judiciary’s role in protecting the constitutional order bear repeating.

Justice Minallah urged the courts to remain vigilant where defending the Constitution was concerned. He added that mistakes in this regard had been made by the higher judiciary in the past and that if the SC failed to protect the basic law, then “judges are committing misconduct”.
These frank admissions and stark warnings should be heeded especially by state institutions. There can be no compromise when it comes to respecting the constitutional order, and their lordships have a duty to protect the document. It seemed that after the epic struggle between Gen Musharraf and justice Iftikhar Chaudhry, the ‘doctrine of necessity’ had been buried. Yet, as things have developed since, it is clear that this doctrine has multiple lives.
What gives one hope is the fact that conversations about protecting the constitutional order are taking place, even in a suffocating atmosphere.
Whether it is Justice Minallah’s remarks, the Islamabad High Court judges’ letter regarding interference by intelligence agencies in judicial affairs, or Justice Mansoor Ali Shah’s comment about the need to create a ‘firewall’ around the judicial system, these hints from within the judiciary point to a will to resist unconstitutional moves.

As some observers have noted, an unambiguous institutional response is required; undemocratic forces cannot be allowed to exploit divisions within the judiciary. From their lordships in the SC to the magistrates and trial judges, the judiciary as an institution must pledge to uphold the constitutional framework, and refuse to entertain ‘requests’ from any quarter to subvert the democratic system.
As Justice Minallah suggested, those who fail to defend the Constitution must face the consequences of their actions. Pakistan’s salvation lies in all institutions staying within their legal bounds, and letting civilian set-ups govern with freedom. Of course, there are still many pieces missing from this puzzle — a transparent electoral process, maturity and tolerance in political parties for each other, etc — but only if the democratic process is allowed to continue unhindered can the system correct itself.
Published in Dawn, July 29th, 2024