Feisal Naqvi

The Law Strikes Back

In law, Pakistan on April 10, 2008 at 3:41 am

According to one joke, there are 10 types of people in the world: those who understand binary and those who don’t.

For those of you who are not computer geeks, let me explain. Binary, or base two, is a form of counting in which there are only two digits: 1 and 0. So, in binary, the number 1 is still 1, but the number 2 is written as 10, while the number 3 is written as 11 and so on. This is in comparison to the more usual form of counting, which is to say the decimal (or Base 10) system, in which there are ten digits (1,2,3,4,5,6,7,8,9 and 0).

You might ask what all of this has to do with judges and parliament. The answer is that just like the meaning of the number 10, the solution to the issue of how judges are to be reinstated depends upon the point of view one chooses to adopt.

Let me explain further.

On November 2, 2007, Pakistan had an effective and respected legal framework, i.e. the Constitution, under which the President of Pakistan had certain powers. Those powers admittedly did not include the right to set aside the Constitution, to amend the Constitution or to fire those judges whom the President, or his allies, found uncooperative.

On November 3, 2007, General Musharraf tried to create a new legal order. In this new legal order, he claimed the right to make all such changes in the Constitution as he deemed fit, to pass such laws as he deemed fit, and to fire all those judges he deemed unfit.

Five months later, there are two options before Parliament (and by extension, the people of Pakistan). The first option is that Parliament can accept the new legal order proposed by General Musharraf, in which case the restoration of the judges can only be accomplished through a constitutional amendment, which in turn requires a two-thirds majority in each of the houses of Parliament.

The second option available to Parliament is to reject the new legal order proposed by General Musharraf. In that case, all the actions taken by General Musharraf, including the removal of certain judges, are entirely illegal and void ab initio , and can hence be simply ignored. General Musharraf is then also a man who has committed treason and who is liable to be impeached by Parliament for subverting the Constitution.

There are several points which need to be understood about the choice between these two options.

The first point is that the debate as to which option should be taken by Parliament is not a legal debate but a political (or rather, moral) one. It is not a legal debate because, by definition, a legal debate takes place within an agreed framework. In this case, the debate is not within the boundaries of an agreed framework: it is a debate as to which framework we (or Parliament) should adopt.

The second point is that in both cases, a parliamentary resolution changes nothing (at least, not in “legal” terms). If the legal order is that of November 3, 2007, then a resolution has no force. And if the legal order is that of November 2, 2007, then a resolution is unnecessary because the only legally appointed judges are those who were judges on November 2, 2007 and the only legal chief justice is the man who was chief justice on November 2, 2007.

But if a parliamentary resolution changes nothing, then how will the choice be made? And who will make the choice?

The answer to this question is simple: the choice will ultimately be made by those who control, and those who constitute, the coercive apparatus of the state. And if the police force of Islamabad is any indication, that choice has already been made.

On March 30, 2008, various Supreme Court officials entered the house of Mr Justice Khalilur Rehman Ramday to evict him forcibly from his official residence, under the orders, as per news reports, of the incumbent Chief Justice of Pakistan. These officials then requested the police authorities stationed within the judicial colony to assist them in carrying out the orders of the Chief Justice.

Under Article 190 of the Constitution, all executive authorities are required to act in aid of the Supreme Court. But the Islamabad police refused to help the Supreme Court officials. Moreover, not only did they refuse to help the Supreme Court officials, they later assisted lawyers in replacing the furniture taken out from Justice Ramday’s house.

The refusal of the Islamabad police to obey the orders of the purported Chief Justice of Pakistan is extremely significant. A sovereign whose commands are not obeyed and not implemented is no sovereign. Bahadur Shah Zafar in Rangoon was the same man as he had been in Delhi: the only difference is that his commands were no longer backed by the threat of executive action and coercive force.

At this time of writing, Chief Justice Dogar had not taken any action to “punish” the policemen who refused to obey his order. Instead, quite embarrassingly for him, the officers of the Supreme Court who were trying to carry out his orders are being questioned pursuant to an inquiry launched by the Ministry of the Interior. It therefore seems as if the executive branch no longer recognises Chief Justice Dogar’s authority.

On February 18, 2008,the people of Pakistan gave a verdict against President Musharraf and the parties allied with him. This time, it looks as if their judgement is actually being implemented.

Feisal Naqvi studied Islamic history at Princeton University and law at
Yale Law School

This article appeared in the April 4, 2008 issue of The Friday Times

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