By Rifaat Hamid Ghani
IT is of course entirely politically incorrect to miss the doctrine of necessity, and still more reprehensible to think wistfully of the Eighth Amendment. I would hate to appear on the side of our uniformly distinguished dictators who (fairly successful in some ways though toxic in others) variously went a-looking for the essence of democracy; an indigenous democracy not overawed by modes as of Parliament and Capitol Hill; or quite humbly a basic democracy; using those very legal implements. But quoi faire? Our democracy flounders like the bat in democratic daylight and finds its wings when fighting the dark of martial law.
Yet, for democracy to be durable as a system of government it has to do well in the practice thereof; and if political opposition is to remain democratic it cannot—as too often necessitated in dictatorships—go for the jugular. Democratic opposition strives to change the baby in the bathtub without killing it. For that sort of bloodies the waters. So what can we foresee for the democratic embryo now a decade old rather special child, General Musharraf with his NRO let out of the test tube? More genetic mutation?
I devoutly hope not; and that is why I venture pragmatically to miss both the doctrine of necessity and the Eighth Amendment. For—albeit in tragic irony—each drew strength from enshrining the principle of the rule of law: a necessity if society is to be civil.
Doctrine of necessity first: Having established its muscle in 1955; the concept buttressed Ayub’s martial law, allowing it circumstantial justification. But also implicit in recourse to the doctrine were national acceptance and reverence for the supremacy of the rule of law. However much we may dislike having to concede it, in the early years of his decade of reforms Ayub enabled a unique contribution to national development. Equally, he enabled robber baron industrialists and disabled freedom of the press and freedom of association. The popular democratic opposition that ended his rule was led by a disillusioned politician exiting from within his establishment: Z.A Bhutto. Ayub was a sound enough commander to recognize defeat and surrendered gracefully. A Legal Framework Order was structured; and in 1973 Mr Bhutto jockeyed parliament into consensus on the existing constitution.
But the concept of the doctrine of necessity took centre-stage again with General Zia, and that was when it began to smell. For the courts began to seem less the fonts of authority in interpreting law, than the tools of authoritative force flouting laws. With the determinedly purposive murder trial of the ousted Z.A Bhutto, along with the acceptance of extraordinary tribunals previously ordained by Bhutto himself, the supreme judiciary was perceived as highly politicized.
Clothed in pious sanctimony, Zia’s rule robbed the functional executive, the legislature, and the judiciary of moral standing and incidentally clouded another concept embedded in the psyche of every Pakistani– that of their valiant army’s selfless and beloved soldier. President Zia made himself autonomous with the induction of the presidential powers of the Eighth Amendment: The president could dismiss ‘sham’ dysfunctional ‘shooras’ at his personal discretion. The doctrine of necessity became superfluous.
The decade of reversion to democratic practice that followed General Zia’s plane-crash culminated with the curious case of COAS Musharraf’s hijacking of democracy vs PM Nawaz Sharif’s hijacking of Musharraf’s flight. And the PM emerged the hostage. General Musharraf used precedents to legalise himself. But just as PM Sharif misjudged his self-inflicted COAS, that COAS misjudged his self-inflicted CJP. Like the COAS before him, the CJP refused to take his marching orders and the people cheered loud and long enough for the General to devise his own retreat through an electoral process lubricated by the NRO.
We’ve since had a decade of living with electorally mandated governments; and people enjoying freedom of press and association have learnt more about their right to good governance. 2018 is when the current mandate expires. But ever since 2013, when he failed to carry the elections and smash into the system as PM, Imran Khan has set out to rubbish the widely accepted electoral mandate.
PanamaLeaks came as manna from the ICJI, after his charges of electoral fraud backed by dharnas did not gain critical mass. The rallying cry is ‘corruption’, and Imran Khan has unremittingly led the opposition in discrediting rather than reforming the system. He has merely effectively stalled it, inhibiting both good and bad governance. Parliamentary process is a poor joke; and if he does what he did with the EC and its findings to more general judicial deliberations and directives, so disrupted could be Pakistan’s body politic, that it will not wait for a doctrine of necessity to inform we are in the grips of an emergency as never before.
Imran Khan’s politics live off a contempt of law and due process; and a reliance on—face it—his crowd magnetism as a sexy cricketer. But this is not cricket.
Yes, we know about Shaukat Khanum and NAML. We also know about LUMS and the LRBT (to name only those among others). If we measure political contribution, can Imran Khan truly claim to have trail-blazed political awareness as to good government, the rights of women and children, and financial equity? He had an untried promise and has thrown it away.
If and when every institution has been held in contempt and pulverized as useless, the state pragmatically has failed. The world is unlikely to watch and wait and allow supplementary re-sits to leadership that failed in a globally relevant country. We need to settle what is necessary to avert implosion: that is a state beyond emergencies.
If the law and civil proprieties were not being ardently denigrated and ignored, of necessity people would see that the democratic way is gradual self-correction not precipitous change. . . And if the Eighth Amendment were available the president might see the wisdom of exercising its powers and calling for elections without the waters being bloodied. . .