Original Articles

The return of the Doctrine of Necessity! – by Saad Mansoor

After the democratically elected parliament that represents the wishes of people of Pakistan passed the eighteenth amendment to the Constitution of Pakistan unanimously. It was hoped that it would bring peace, stability and normalcy in the functioning of this Federation that is desperately needed. With the Constitution back into its original state and most of the short-comings removed the nation took a breath of sigh.

Their peace, it seems was short-lived as the guardians of Constitution it seems have after all not mend their old ways.

What is going on in the Supreme Court of Pakistan is tremendous. The basic law of the country is under threat! Of course this is not the first time this will happen therein, the courts have done it plenty of times to validate the martial laws of military dictators, when they suspended the Constitution they were sworn to protect.

But today there is no military dictator on who’s behest this is being done (at least not openly). The independent judges are doing it on their own. They are deciding whether the Constitution is Constitutional or not? In the absence of their old cheat code aka doctrine of necessity they have found refuge in a new doctrine called the doctrine of basic structure. Since they had no Constitutional ground they seek refuge in a doctrine that has been rejected by the courts of Pakistan over and over again but obviously those courts were not as ‘azaad’ or independent as these ones.


Yet they did reject it over and over again, during democracies and dictatorships. Because those men, traitors some of them may have been, established a line, in ignorance or consciousness I know not. But every act was to be validated by the parliament to gain legality. No matter how many days had gone by, eighth and then seventeenth amendment were passed to legalize everything. To make it Constitutional, since Constitution of Pakistan can only be changed by the parliament of Pakistan and no other institution.

In exercise of its powers the Constitution was changed by the parliament once again in April 2010. It was challenged in the Supreme Court, but instead of dismissing the petitions the Court accepted them and officially disposed the shield of sanctity that surrounds the Constitution. But the question that baffles me is that if indeed the court decides that a single section of the Constitution is to be suspended, will the Supreme Court be committing high treason?

Did we not agree that be it Musharraf or Dogar or any other judge or general, the Constitution cannot be amended by anyone save the parliament? The article 175A is now part of the Constitution and no matter how many judges or lawyers or media anchors want, can it be altered, suspended or deleted, save by the parliament of Pakistan. Any attempt to do so would be high treason under the article 6 of the Constitution of Pakistan and the government would be duty bound to protect it and act against those who tried to subvert it.

So will Chief Justice Iftikhar commit high treason once again and become the first civilian to suspend(in whole or in part) the Constitution of Pakistan? Will he join the ranks of Ayub, Yahya, Zia and Musharraf, it seems unlikely in any other country but lest we forget this is the Islamic Republic of Pakistan!!

Source: Green Goat’s Hide

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Abdul Nishapuri

8 Comments

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  • Although Im indifferent on the issue of judicial appointments , I have a strong objection with this ‘Democratically elected parliament , wishes of people’ bla bla. We have had ballot democracy in our country only. Democratic values is what we are still alien to. People like DASTI are our representatives – how shameful.

    And how idiotic is hailing the 18th ammendment as a milestone achieved by the ‘representatives’ of Pakistani awam while the ammendment has been used to murder the spirit of democracy.

    Something I wrote regarding 18th ammendment and ‘parliamentary supremacy’ :

    http://natashasuleman.wordpress.com/2010/05/03/parliamentary-supremacy/

  • Rabia,

    Did you read my comment before putting so much effort for digging out this link that I do not wish to open. I said I am INDIFFERENT to the judicial appointments issue. I talked ‘REPRESENTATION’.

    Selective reading , lack of comprehension skills or vision problems?

  • Natasha, Your article is based on your utter disdain for politicians rather than merit. You have three objections, all of them made under the delusion that democratic system shall reach maturity immediately or done away with.

    First, article 17 clause 4 regarding the intra party elections. There is already a prevalent law which governs such matters, under which, intra-party elections are necessary. Constitution governs the workings of state institutions and rights of individuals not private entities like a political party. The relevant article dealt with Freedom of association, the placement of clause in it was malafide and self-contradictory.

    Secondly, the defection clause. It has always been there except it was suspended by Musharaf. In established democracies people have the courage to resign when they are in disagreement with the party policy but that is not the case in Pakistan. Here we have a history of Mid-night jackals (look it up as I’m certain that your knowledge of political history of this nation is limited to the biased media and third class text books of Zia era) and lotas. The addition of Constitutional amendments to the list is completely justified, since it is no ordinary bill that you can disagree with. You cannot disagree with the Constitutional stance of your party and stay a member of the legislature on its ticket. Any one claiming to have conscience would resign in the situation anyway, in fact they would resign for far less a conflict (remember Sherry Rehman).

    Thirdly, at the inception of Local bodies system a number of political analyst argued that you cannot give rights to districts at the cost of provinces. But the dictator did it anyway. So when the elected governments came through the fair process, what happened was exactly what had been predicted by analysts all along they took their rights back. The Pakistani middle class is hell bent on short-cuts and they are doomed forever in doing so since they despise the political system. While local bodies has done wonders in Karachi, the same system did practically nothing in NWFP or Balochistan because funds were not released from center. Due to the eighteenth amendment the provinces now have enough powers to devolve to the local level, previous status had turned provinces into hollowed structures without any writ or power. In due course you will see the same provincial governments creating similar setups, on their own.

    But alas, deprived of political understanding and the unaware of the need for any system to establish and assert it self, I doubt that you will understand.

    ps: Jamshed Dasti got 12000 more votes than the last elections and was standing against not one but two feudals lords. His case is same as that of Robin Hood, I’m sure you’ve heard of him and the recent Russel Crow movie. Robin Hood was a petty criminal except to the common man on the street he was a warrior who fought for their rights. So broaden your horizon and stop stereotyping.

  • Natasha,

    the issue of the basic structure doctrine (and the ability of the judiciary to overturn constitutional amendments) goes far beyond the mere issue of judicial appointments. If the judiciary decides that it is able to overrule constitutional amendments we will most likely see a period of political turmoil like that in India in the 70s following the articulation of the basic structure doctrine by the Indian Supreme Court. My suggestion is that you try to get over your irrational hate for one branch of the government and try to understand the implications of the decision of the SC in the 18th amendment case for the entire system!

  • Rabia,
    My suggestion to you is to read what the other person is saying before giving unnecessary lectures.

    Saad,

    You have been replied at the blog.

  • judiciary has done great harm by accepting petition against 18th amendment .present judges dismissed the petition against 17 amendment in 2003 by saying constitutional amendment can’t be reviewed in the Apex court.
    Pakistan today is the only in the country where SC has asked the federation to bring the record of constitutional reform committee . it is quite amusing if judiciary has decided the amendment in the constitutionals are wrong they should make new constitution book after 18th amendment as their reference .