Feisal Naqvi

Musharrafland v. Constitutionland

In Uncategorized on April 10, 2008 at 3:48 am

General (now President) Parvez Musharraf has declared martial law (twice), amended the 1973 Constitution (twice), gotten a clean chit from the Supreme Court (twice) and not been prosecuted on any charges (so far). Last time round, General Musharraf’s actions were validated by a constitutional amendment. This time round, President Musharraf says he does not need any constitutional amendment to protect himself. The question is: is he correct? And are the new amendments “legal”?

Neither question is simple. In both cases, the answer is: “it depends.”

First, some jurisprudential theory. According to Hans Kelsen, law consists of a hierarchy of norms. At the top of that hierarchy sits the ‘grundnorm’. Unlike the other norms, the grundnorm is simply the fundamental assumption on which all other norms are based. So prior to November 3, 2007, the grundnorm of Pakistan was not the 1973 Constitution: instead, the grundnorm was the assumption that the 1973 Constitution should be obeyed.

Post-November 3, 2007, the effective grundnorm of Pakistan is no longer the assumption that the 1973 Constitution should be obeyed. Instead, the effective grundnorm is the assumption that whatever Pervez Musharraf does is a valid law-creating fact. The answer to the questions asked therefore depends entirely on which grundnorm one chooses to refer to.

Let me try and make the same point in a simpler way: we do not live in a country any more which is governed by the 1973 Constitution of Pakistan. Instead, we are currently governed by the will of one Pervez Musharraf as expressed in a Provisional Constitutional Order (and amendments thereto). It is currently the will of Pervez Musharraf that this country should, subject to certain exceptions, be governed generally in accordance with the 1973 Constitution. But at the end of the day, it is his will that counts.

Our current legal order, call it ‘Musharrafland’, is very different from the old legal order which existed before November 3, 2007 (call it ‘Constitutionland’). In Musharrafland, power creates its own reality and its own legitimacy. In Musharrafland, the Supreme Court has already validated the events of November 3, 2007. And in the world of Musharrafland, no further validation is necessary.

However, the validation given in Musharrafland is no validation so far as Constitutionland is concerned. Under the 1973 Constitution, the only true sovereign entity (for practical, and not theological, purposes) is the electorate of Pakistan. If that electorate, through its elected representatives, chooses to validate an act through a constitutional amendment, then that act is protected from all further challenges. But in the absence of a constitutional amendment, the judgement of the Supreme Court remains open to review. Theoretically, even a civil judge third class can simply declare the judgement of the Supreme Court to be without jurisdiction and declare the events of November 3, 1977 to be entirely illegal. More realistically, a Supreme Court bench of equal or greater strength can declare the earlier judgement to have been incorrect.

To return then to our questions, the answers are as follows. In Musharrafland, no further validation through a constitutional amendment is necessary. And in Musharrafland, what happened on November 3, 2007, is entirely legal. But the same is not true in Constitutionland. In Constitutionland, the ‘emergency’ and the PCO remain open to challenge and the new amendments remain illegal unless and until validated by a constitutional amendment.

The unfortunate point to note though is that the choice of grundnorms is not a moral choice but a factual choice. Nobody writes down the grundnorm: it has be deduced by examining the actions of people. For example, there may still be people who believe that the Iranian Revolution of 1979 was completely illegitimate. But it makes little sense, as a legal scientist, to ask whether the current actions of the Iranian government are legal or illegal by referring to the pre-1979 legal order.

The answer to the above argument lies in the term ‘legal scientist’. The people of Pakistan are not just spectators in the ongoing drama, they are participants. Similarly, the judges of Pakistan are not just passive victims of an inexorable fate. They too get to decide which script they want to live.

But if we turn to the people of Pakistan, the quality most in evidence is widespread apathy. To continue the previous metaphor, most of the people in Pakistan seem unperturbed by the fact that they are now living in Musharrafland and not Constitutionland. In fact, some days ago, even Justice (Retd) Wajihuddin conceded during a speech that the public at large was “least bothered” by the issue of the judges and that the masses needed to be educated with respect to the virtues of an independent judiciary.

Education may well be the ultimate answer but as the saying goes, kaun jeeta hai teri zulf kay sur honay tuk ? So far as I can see, the future is depressingly obvious: Pervez Musharraf has power but no legitimacy. The incoming parliament will have the power to grant legitimacy in exchange for a share of power. We should not be too surprised if a deal is made.

This article appeared in The Friday Times on December 28, 2007.

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