Talks of judicial martial law in Pakistan

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By Afrasiab Khattak
In a free season on the Constitution some people have floated the idea of imposing a judicial martial law for holding general elections in the country. Apart from being a contradiction in terms it’s also a totally meaningless concept because a martial law is martial law and a prefix or a suffix doesn’t change its character in any manner. We know it because we have been here before. Under normal conditions such a demand would have been regarded as a constitutional blasphemy and the courts might have taken suo motto notice of it. But we are at a stage where the de jure is too weak to challenge the overbearing de facto and the higher judiciary has better things to do. Otherwise the trial of General (r) Pervez Musharraf for abrogating the Constitution would have been a priority and he wouldn’t have enjoyed the type of impunity that he has been enjoying in the recent years.

Chief Justice Saqib Nisar

Be that as it may, it is interesting to look into rise of the phenomenon of the judicial martial law. It isn’t very complicated. The credit goes to the much maligned 18th Constitutional Amendment. One just has to have a look at the contents of the Article 6 of the Constitution before and after the 18th Constitutional Amendment. First let’s see Article 6 before the aforementioned Amendment;
1: Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
2: Any person aiding or abetting the acts mentioned in clause (1) shall be guilty of high treason.
3: ( Majlis-e-Shoora ( Parliament) shall by law provide for the punishment of persons found guilty of high treason.
Article 6 after the 18th Amendment;
1: Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.
2: Any person aiding or abetting (or collaborating) the acts mentioned in clause (1) shall likewise be guilty of high treason.
2A: An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.
3: ( Majlis-e-Shoora (Parliament) shall by law provide for the punishment of persons found guilty of high treason.
As we can see Article 6 has been strengthened by the 18th Amendment unanimously approved by the Parliament in 2010. It was done because General Zia-ul-Haq and General Pervez Musharraf could get away with the abrogation of the Constitution in 1977 and 1999 respectively. So now the Constitution can’t be suspended or held in abeyance like it was done by the two military dictators. Moreover there is a bar on judiciary to validate abrogation, subversion or suspension of the Constitution. This helped in breaking the vicious cycle of direct intervention by usurpers. But the anti democratic forces have resorted to other means for ousting the elected prim ministers. Selective accountability has become the most favourite means for disqualifying them. It led to the judicialisation of the country’s politics and policisation of judiciary. Yousuf Raza Gilani, the prime minister from PPP was disqualified in 2012. Court proceedings for disqualification of his successor Raja Pervez Ashraf were also initiated but the constitutional term of the Parliament expired before the completion of the court proceedings. Recently we have been witness to the disqualification of Nawaz Sharif by the Apex Court of the country. Although Nawaz Sharif and his party have accepted the court orders but the military has made it very clear that it would stand by the Supreme Court in case of resistance by anyone against the Court’s order. We have been through the Senate elections very recently and the “independents” from Balochistan were not so surprisingly able to hold their sway on the process. But it’s pertinent to note that all this political engineering wouldn’t have been possible without the major political parties lending their shoulder to the “political engineering department”. PPP and PML (N) had their musical chairs games in 1990s. They took turns to aid and abet the security establishment in overthrowing the governments of one another. In 2006 they signed the Charter of Democracy ( COD) which was subsequently approved by most of the other political parties. It resulted in the general elections of 2008, the 18th Amendment and democratic transition of 2013. Even in 2014 the spirit of COD was able to foil the aims of scripted aggressive sit ins. But after that PPP and PML (N) went back to 1990s mode. Both of them have unfortunately justified their unprincipled positions by the past wrongdoings of each other as if two wrongs make a right.
(The writer is a retired Senator and an analyst of regional affairs.)