Strongmen and coup planners in Pakistan have historically relied on the legal system to give their extraconstitutional actions credibility.
The “doctrine of necessity,” that vile concept that later served to justify the overthrow of the Constituent Assembly by Ghulam Mohammad and, subsequently, the military coup led by Iskander Mirza and Ayub Khan, has been invoked by the courts whenever they have been required to do so. People are asking if this concept would be revived again as unelected forces strengthen their hold on power and Pakistan’s fragile democracy is threatened by extreme political polarization. In this context, it is important to reiterate Supreme Court Justice Athar Minallah’s comments at a recent US event about the judiciary’s duty to uphold the constitutional order.
When it came to protecting the Constitution, Justice Minallah asked the courts to maintain their vigilance. He went on to say that the higher judiciary had made mistakes in this area in the past and that “judges are committing misconduct” if the SC did not uphold the fundamental law. Particularly state institutions must to take attention of these candid admissions and severe cautions. When it comes to upholding the constitutional order, there can be no compromise, and their lordships have a responsibility to safeguard the text. It appeared as though the “doctrine of necessity” had been forgotten following the historic conflict between General Musharraf and Justice Iftikhar Chaudhry. However, given the course of events since then, it is evident that this concept has many lives.
The fact that discussions about defending the constitutional order are occurring despite the oppressive environment is what gives one hope. These indications from within the judiciary—whether it be Justice Minallah’s comments, the judges’ letter from the Islamabad High Court about intelligence agencies interfering with judicial matters, or Justice Mansoor Ali Shah’s remark about the necessity of building a “firewall” around the judicial system—point to a determination to oppose actions that violate the constitution.
As several commentators have pointed out, the judiciary needs to respond unambiguously in order to prevent undemocratic forces from taking advantage of divides within the system. The judiciary, as an institution, must promise to respect the constitutional framework and turn down “requests” from any source that attempt to undermine the democratic system, from their lordships in the Supreme Court to the magistrates and trial judges. It is imperative that there be a clear institutional response, as several commentators have pointed out, because splits within the court cannot be used by forces hostile to democracy. The judiciary as an institution, from their lordships in the Supreme Court to the magistrates and trial judges, must promise to preserve the constitutional framework and turn down “requests” from any source that attempt to undermine the democratic system.
Those who choose not to uphold the Constitution will have to bear the repercussions of their choices, as Justice Minallah proposed. Pakistan can only be saved if all institutions adhere to the law and allow civilian government structures to function freely. Of course, there are still a lot of pieces missing from this puzzle, such as an open and honest electoral process and political parties’ maturity and tolerance toward one another, but only if the democratic
