BY A majority of six to three, the Supreme Court has dismissed petitions challenging the validity of General Musharraf holding the offices of president and COAS and contesting elections for another term in uniform. As the majority of judges dismissed these petitions on the ground of maintainability under Article 184(3) of the Constitution (that deals with the original jurisdiction of the SC), the issues were not decided on merit.

Though simplistic in tone, the judgment of the majority has profound implications for our constitutional structure, democratic process, independence of judiciary, fundamental rights and the rule of law. In the cases of Benazir Bhutto’s PLD 1988 SC 416, Nawaz Sharif’s PLD 1993 SC 473 and the Chief Justice’s case, the Supreme Court had given a robust interpretation to Article 184(3). The present judgment marks a significant judicial retreat on that count.

While a deeper analysis of the issue must await the detailed judgment, it may nevertheless be observed with respect that if the majority of their Lordships were not convinced of the maintainability of the petitions at all, there should have been greater emphasis and discussion on the issue of jurisdiction.

From the reports of the proceedings of these petitions, it appeared that there was little discussion on the question of jurisdiction and maintainability and much of the judicial time was consumed in examining the merits of the petitions.

One may also respectfully observe that if these petitions, which touched the most vital issues concerning the constitutional and democratic structure of the country, the fundamental rights of the public at large, the supremacy of the elected political institutions, the role of the military, the repeated usurpation of power by dictators, did not even raise a single question of public importance with reference to enforcement of fundamental rights as required under Article 184(3), then it is time that we as a nation re-examine our judicial philosophy and national priorities.

During his arguments Mr Aitzaz Ahsan had presented two role models before the court. One was Justice Munir, the other was Justice Cornelius. It seems that a majority of their Lordships have chosen the former while the minority opted for the latter. This case is comparable to the verdict of Justice Munir in Tamizuddin Khan’s case. While apparently discarding the doctrine of necessity, it appears that the Supreme Court is now evolving a new ‘doctrine of expediency’.

The government and its supporters are praising the court. This delusion cannot last for long. No polity has ever been saved by sacrificing the rule of law at the altar of expediency. For over half a century of our existence we as a nation have suffered the banal effects of the doctrine of necessity. With the evolution of the new doctrine of expediency, the future is doomed to be as bleak as the past.

Since the Supreme Court has dismissed these petitions on the ground of maintainability alone, the issue of General Musharraf’s eligibility to contest election remains to be judicially determined.

Whether he can be re-elected in uniform and whether Article 63(1)(k) (disqualification of membership of parliament) of the Constitution bars his election as president for the next five years still need to be judicially determined. Justice (retired) Wajihuddin Ahmed and members of the legal fraternity have vowed to challenge his eligibility to contest election.

General Musharraf is insisting on contesting election in uniform on two grounds. While wearing the uniform he can ensure re-election by all means possible. If he still fails, he can impose martial law or Emergency. It is a win-win situation for him in uniform. Legitimacy would continue to elude him but then does he care for legitimacy? His ambitions are hitched to raw power rather than legitimacy and moral authority.

The Election Commission has now literally become the battleground. By excluding Article 63 for the election, it has already damaged its credibility. The matter would ultimately end up before the Supreme Court once again.

In the cases of Pakistan Lawyers Forum vs Federation of Pakistan PLD 2005 SC 719 and Qazi Hussain Ahmed vs General Pervez Musharraf PLD 2002 SC 853, the Supreme Court did not decide the issue of Article 63 and only assumed that it was decided in the case of Aftab Shahban Mirani vs President of Pakistan 1998 SCMR 1863.

In Mirani’s case the Supreme Court was dealing with the case of a candidate who being a senator was already a member of parliament. The question was whether Mr Rafiq Tarar was rightly found disqualified by the CEC. If the Supreme Court was of the view that Article 63 was inapplicable, the petition would have been dismissed on that ground alone.

However, instead of dismissing the petition on that ground, it was held that if a sitting member of parliament is a candidate for the office of president, he is qualified to be a candidate in terms of Article 41(2) (president’s election to office) of the Constitution till the time he is unseated through the mechanism provided in Article 63(2) which requires a detailed inquiry and not summary proceedings.

This observation indicates that the candidates must overcome such disqualifications in Article 63 which are evident without any detailed inquiry. Indeed this lends support to the argument that evident disqualifications such as the one enshrined in Article 63(1)(k) are fully applicable to all candidates including General Musharraf.

The moment he leaves the office of the COAS, the disqualification applies to him automatically and he must wait for two years. This is another reason why he wants to contest election in uniform.

There is much force in the argument that qualifications and disqualifications envisaged in Articles 62 (qualifications for membership of parliament) and 63 should be read as a composite and applied in their totality to the candidates.

The proviso to Article 62(1) itself acknowledges that this provision contains disqualifications as well. If the contention of General Musharraf’s supporters is accepted, a person of unsound mind who has been so declared by a competent court can still become president. Similarly, a defaulter of bank/utility/government can become president. So can a government contractor. Any civil servant is eligible to become president.

Persons carrying all disqualifications mentioned in Article 63 could become president yet they cannot become MNA, senator or even MPA. The absurdity of the contention immediately becomes obvious.

While in the first round the majority of the Supreme Court may have avoided merits of the issues, no such option would be available now in the second round. The fate of the people and the country would depend upon the judgment of the court.

When the US Supreme Court faltered in deciding the election of George W. Bush as president in 2001, dissenting Justice John Paul Stevens had this to say, ‘Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law’. He could have been talking about our Supreme Court.

THE men vying to capture political power in Pakistan range from the mediaeval holy to the modern hippie. That is, if you ignore for a while the presence of terrorists on the fringes of society.

Against this backdrop a question being asked, with evident justice, is whether a just and moderate democratic order could emerge out of the prolonged turmoil — now hopefully coming to an end.

The doctrine of necessity, as a Supreme Court judge observed the other day, may have become a part of history, but extremism that poses a greater threat to democracy than the coup makers is looming ever larger on the horizon.

Successive governments have been nurturing extremism. Musharraf’s government of ‘enlightened moderation’ has done no less. The judiciary can help exterminate it just as it has buried the doctrine of necessity by revisiting its previous judgments.

The point being made here, curt but crucial, is that rising extremism will not let democracy flourish even if the nation has seen the back of military-led governments for all times to come.

The reason for this apprehension is obvious: civil liberties, freedom of conscience, equal access for women and minorities to justice and all other rights guaranteed by the Constitution can withstand martial law but not extremism. Military men come and go but doctrinaire fanatics infest society at all times and at all levels and their numbers are growing.

Benazir Bhutto was partly right when she told her American audience the other day that extremism in Pakistan has been thriving under military dictators. That is true but only of the tribal areas where Ziaul Haq in waging jihad in Afghanistan and Musharraf in fighting terror, also in that country, brought the strife to the home soil, transforming some of our own peaceable but mercurial tribals into terrorists.

This is a sad story of the two generals alienating our own loyal tribes by acting against the covenants and customs that had traditionally governed relations between the political agents and the tribal elders. But the extremism that is rooted in domestic sectarianism had thrived as much under the governments of Benazir Bhutto and Nawaz Sharif as it had under the generals.

The unrest and defiance in the tribal agencies and the adjoining settled districts will fade away in due course of time as foreign troops leave Afghanistan. But Pakistan will never be either democratic or peaceable unless the laws that promote intolerance and foster religious prejudices are either repealed by parliament or struck down by the judiciary.

In fact, it has to be a concerted effort by both. The doctrine of hate has to be buried alongside the doctrine of necessity, and deeper, if democracy is to return and endure.

Barring a national emergency that Chaudhry Shujaat Hussain constantly pines for and cannot be ruled out either if the current crisis prolongs, the new government (the caretaker followed by the elective) should be in the saddle shortly. Whether the polls are fair or rigged the strong likelihood in either case is that the moderate, liberal and nationalist elements would form a majority in parliament as well as in the four provincial assemblies.

The next elected government, soon after assuming office, must get down to establishing a new legal and administrative framework that is conducive to the growth of democracy.

Its central tenet should be to do away with all such laws and practices that discriminate among the citizens on grounds of religion, race or province, and then to put relations with the tribes back on the traditional footing that was abandoned first during Zia’s jihad and later in the on-going war on terror.

The compulsion, or driving force, in both situations, it is well established by now, was monetary and not commitment to the cause.

The legal code of the country also needs to be purged of provisions and punishments that provide long imprisonment or death penalty for offences like hurting religious feelings, defiling places of worship and personages by ‘words spoken or written, or by visible representation, or by any imputation, innuendo or insinuation directly or indirectly’; and for Ahmadis, in addition, if they pose as Muslims.

The sufferers under the sweep of these ambiguous laws at the hands of the police and facing the mob frenzy whipped up by the fanatics are invariably the minorities.

While all this is being said, the hope for a liberal democratic order to emerge from the elections is dimming with every passing day. Doubts are being expressed not about the polls being free and fair but whether they would held at all.

It was left to the judges to clear the mess that the politicians and the generals created. To top that, the arguments addressed to the Supreme Court were invariably coloured by the political preferences of the lawyers who in a vacuum have emerged as an organised force in politics.

It was rather frustrating to see the two leading lights of the legal profession, Chaudhry Aitzaz Ahsan and Hafeez Pirzada, who were called upon to assist the court as its friends, presenting arguments that conformed entirely to their political persuasions. It appears legal objectivity is also being buried alongside the doctrine of necessity while the dawn of democracy is nowhere in sight.

More frustrating, however, is the new-found behaviour of senior lawyers to publicly hail a judge if he agrees with them and condemn him if he doesn’t. The independence of the judiciary is, thus, now threatened not by the executive alone but by the lawyers as well. The leaders of the bar — Muneer Malik, Hamid Khan, Ali Kurd and the rest — must make their choice whether they wish to argue the law in the courts or campaign on the streets to “win the hearts and minds” of the people. It cannot be both.

IN THE context of Pakistani politics, Punjab today offers a lesson in change. The old alliances and ideologies may be holding in the rest of the country. But Punjab is undergoing a process of realignment. In the past there were the biradaris that gave politics its shape in the province. Today’s pluralistic model is an enigma.

Take the case of Ahsan Bhoon, the president of the Lahore High Court Bar Association.

The members of his bar will not always be found marching alongside their fellow lawyers in the campaign against President Pervez Musharraf.

By all description, Bhoon appears to be a Pakistan People’s Party man and sources in his native Hafizabad district say he may be in line for a PPP ticket to contest a Punjab Assembly seat in the next election.

However, according to the lawyers in Lahore he is affiliated with the group led by Attorney-General Malik Muhammad Qayyum who is in the president’s camp and has been fighting it out in the Supreme Court with Bhoon’s partyman, Aitzaz Ahsan, and with other lawyers active in bar politics. Qayyum claims to be independent minded and has no links with politics. It is a different matter that one of his brothers happens to represent Mian Muhammad Nawaz Sharif’s PML-N in the National Assembly and his sister is a sitting MNA of Bhoon’s and Barrister Ahsan’s PPP.

As for Barrister Ahsan, he is apparently not that happy with his party’s line. He goes to London and finds it hard to get an audience with his party leader Benazir Bhutto.

His associates are quick to point out that his lunch appointment with the Sharif brothers in the British capital — of course as their one-time lawyer — should not be taken as a prelude to his entry into the PML-N, a party which in all likelihood would allow him a better shot at the election than the party he is in at the moment.

The last time Barrister Ahsan won the election he introduced himself to voters as Ms Bhutto’s associate and Mr Sharif’s lawyer, thus implying that practically it wasn’t that easy to separate the political from the legal.

If Mian Nawaz Sharif is so inclined, he may also nod his assent to gifting a few Lahore seats to Jamaat-i-Islami, a party diametrically opposed to the PPP. Incidentally, it is also the party which is now seeking to undo what it helped to create through the passage of the Seventeenth Amendment in 2004 in opposition to the PML-N.

Phew! Take a breather before you try looking for ideological linkages in the jumble the educated urbanites have created. This is far from the parochial politics of the much maligned rural Punjab.

Here is another riddle for you to solve. General Musharraf is seeking a new term as president. For getting re-elected he has to rely on the support of all the big and not so big lawmakers who constitute the electoral college for the presidential poll. At the same time, there is talk of a deal that could lead to a change in Islamabad and also in the provinces.

Against this backdrop, what kind of assurances from Gen Musharraf would ensure for him the necessary support of the members of his electoral college? They can hardly be expected to vote for a president without being guaranteed a share in the fruits of power.

Then there is the deal-oriented PPP. Ghulam Mustafa Khar may be right this one time. In recent days he has been seen playing a supporting role to the much tamer chief ministerial version in the person of Mian Nawaz Sharif. Khar believes the PPP’s politics will deprive him of public support and if he can he must align himself with what is likely to be popular.

That a seasoned practitioner of the art of politics has chosen to side with Nawaz Sharif in his hour of distress is something most telling. It means some doors are still open to Mr Sharif and others who want to take up the cudgels against Gen Pervez Musharraf, once the new order takes shape. It will largely depend on whether or not the Sharifs are able to return to their homeland. In case they do come back, the deal that appears so hard to execute even in their absence will become a bigger challenge.

The deal — or dialogue — between the PPP and Gen Musharraf hits at the roots of Muslim League politics in a province that makes or breaks a government at the centre. There is little doubt in many observers’ mind that the real Muslim League is the League that opposes the PPP’s politics.

Given this reality, Chief Minister Pervaiz Elahi has hogged newspaper headlines for months, reminding the Punjabis that the real battle in the election will be between his PML-Q and the PPP. His tirade against the PPP, interspersed with examples of all the good work his government has done for the province, has subsided in recent days in the run-up to the presidential polls.

His lashing out at the PPP gives the impression that any rapprochement between the presidential camp and the PPP will take effect post-general election, after the two sides have fought tooth and nail at the polls.

The possibility of the Sharifs being present in the country in not too distant a future will make greater demands on Chaudhry Pervaiz Elahi and his party colleagues. He would be far better off facing the Sharifs without having the heavy baggage of the PPP as his or his party’s ally.