By Babar Sattar

The Supreme Court judgment declaring actions of Nov 3, 2007, as unconstitutional is as much a triumph of optimism as it is of the rule of law. Dictatorships don’t just crumble because people want them to, the fallen never rise against the establishment’s wishes, the abettors always get away with their malicious plots and the compromised polity drudges on, we were told back in 2007. We have come a long way since due to the valiant contributions of many giants amongst us whom we owe our gratitude to. But our heroes had the opportunity to shine at this juncture of our history for the singular reason that our political and legal consciousness as a nation has evolved and we have run out of patience with those molesting the sacred concepts of constitutionalism and rule of law in Pakistan.

The PCO Judges’ Case ruling is a welcome addition to our constitutional jurisprudence. One, it has cleansed the Constitution of the scars inflicted by the actions of Nov 3, the legality of which had not been disavowed by the executive and the parliament even if not explicitly presumed. Two, the 14-member bench chose to be guided by the foundational constitutional principle of separation of powers while approaching the irregular actions taken by the executive, the legislative and the judiciary during the period of constitutional deviation. And three, for the first time in the history of this country a huge chunk of our superior court judges who facilitated a dictator in subverting the Constitution are being held accountable for their actions.

The case of PCO judges was open and shut. Did these men in robes, who had been endowed with the responsibility of literally stepping into the shoes of God and ruling on the actions, lives and fate of their peers, not understand on the evening of Nov 3 that supporting and abetting the whims of a (twice-over) khaki saviour to subvert the Constitution is unconstitutional? These men willingly compromised their honour, integrity and legal obligations for immediate self-preservation. In making their choice they elected to sell their souls to considerations of expediency, encouraged by the dark constitutional history of this country where judicial validation of subversive acts has always been disapprovingly accepted as a ‘past and closed transaction’. There can be no sympathy for the PCO judges because their actions were neither inadvertent nor rooted in any misconception regarding the dictates of law. Their only argument is that if such treachery went unpunished in the past, why not let this one slide by as well.

The PCO judges have been stung by misfortune for they choose to abet subversion at a time when the nation seems to have lowered the bar of tolerance for judicial indiscretions. But bad luck doesn’t diminish culpability. It is imperative for the judicature to revive the faith of the nation it the ability of this hallowed institution to hold its own accountable. Rule of law is bound to become meaningless in a society that loses faith in the ability of its judges to act as impartial arbiters of the law. We have a right to expect those who adorn judicial robes and sit in judgment over our acts and omissions to rise above the rest of us, and to hold them accountable if they falter. On the one hand the obstinacy of the PCO-judges has been useful for it has thrown up an opportunity to set a worthy precedent of judicial accountability. But on the other, it would still be advisable for PCO-judges to tender their resignations together with an apology to the nation, even if merely to reassure themselves of their ability to distinguish right from wrong and sleep better at night.

There has never been any disagreement over the unconstitutionality of the Nov 3 actions. The larger issues thus were the manner in which the Supreme Court would approach the PCO judges and address the acts that transpired during the extraordinary period of constitutional deviation. While the approach to judicial accountability has been welcomed by all sensible souls, there has been some criticism of the Supreme Court’s decision to allow the parliament a period of four months to revive the 37 ordinances that had been accorded protection under Article 270-AAA introduced into the Constitution by Musharraf under the power usurped on Nov 3. The argument is that as Article 89 of the Constitution allows the parliament a fixed period to approve an ordinance, the laws in question (including the NRO) should simply have been declared invalid by the apex court as such mandatory period already stood lapsed. Some even wonder if the decision of the court to not declare post-Nov 3 judicial and legislative acts invalid, giving such declaration retrospective effect, amounts to a new doctrine of necessity.

The manner in which the Supreme Court has treated the errant actions is not only supported by judicial precedent but is also in accord with the principle of separation of powers and representative democracy enshrined in our Constitution. The Malik Asad Ali case applied the doctrine of de facto validity to preserve the judgments of a chief justice whose appointment to the office of chief justice was held to be in contravention of the law. The same principle has now been applied to the ruling of the Dogar court, which protects the outcome of hundreds of cases including one declaring the graduation condition introduced by Musharraf to be unconstitutional that enabled President Asif Zardari to qualify for election as president.

Similarly, in the Asma Jilani case, the Supreme Court declared Yahya Khan a usurper but contrived a four-point test that has come to be known as the doctrine of condonation. Thus condoning actions taken by Musharraf even in exercise of usurped powers is not the consequence of some new doctrine that the Supreme Court has contrived in the PCO Judges Case to ‘save the system’, but an application of our existing doctrine of condonation. In talking the future of the 37 laws protected under Article 270-AAA, that the court declared unconstitutional, the court certainly had soft discretion. It could have declared that all such laws already stood repealed or it could have provided the parliament an opportunity to vote on such laws. In choosing the latter course, the Supreme Court wisely allowed its judicial discretion to be guided by the principles of separation of powers and representative democracy.

The Latin maxim fiat justitia ruat caelum (let justice be done though the heavens fall) aptly summarizes how the courts must remain oblivious to the consequences of their decision. But ensuring that heavens do fall due to court pronouncements militates against the equally cherished doctrine of judicial restraint and can never be a sensible principle guiding judicial discretion. The rule of law movement stoked such varied and unprecedented expectations amongst its devotees that irrespective of the performance of the reconstituted judiciary some of them are bound to be frustrated. Such frustrations stem from the wish that judicial decisions should produce certain desirable political consequences. The temptation to satiate the political expectation of the nation falls beyond the province of the judiciary and must therefore be resisted.

The Supreme Court has ruled on the matters brought before it, including the status of PCO-judges and constitutionality of the Nov 3 actions and it is not expected to shy away from ruling on the constitutionality of any laws approved by the parliament, including the NRO, as and when they are adjudicated by the court. It is now for the other vital pillars of our state to do their part. Apart from taking a position on the 37 ordinances, it is imperative that the parliament immediately passes a Constitutional amendment that authorizes the establishment of the Islamabad High Court. Similarly, now that actions of Nov 3 have been declared unconstitutional, it obligatory for the federal government to initiate prosecutions for all those responsible for aiding and abetting the subversion of our Constitution under the High Treason Act 1973, Pakistan Army Act 1952 and Pakistan Penal Code.

The PCO Judges Case is a giant step forward that diminishes the possibility of future judicial validation of military adventurism. But unless public opinion unflinchingly rallies behind continuation of the political process fuelled by effective performance of the executive and the parliament, the judiciary alone cannot build barriers preventing military adventurism.

The writer is a lawyer based in Islamabad Email: [email protected]

-Source: The News-