There is a rebellion in the Apex Court. Brazenly instigated from outside (a “Sharif Special” if you may), a deep and searing fissure has been caused within.
And for what? For the ‘unpardonable sin’ of impelling an obstinate executive bent upon avoiding elections to walk the Constitutional path i.e. “polls within 90 days”.
The dissenting judges, generally some of the of the finer legal minds on the bench, while not denying that the 90 days’ limit is expressly provided in the Constitution, deny relief because the remedy — a recourse to Article 184 (3) — was inappropriate: the precise line adopted by CJ Munir in his infamous but, alas ground-setting judgment in Tameezuddin case(1954, the right was denied because the remedy was inappropriate, Justice A. R. Cornelius dissented). This was followed by other ‘doctrine-of-necessity-cases’ Governor General’s Reference (1955), and in the I958 Dosso’s case (wherein even the abrogation of the entire Constitution was justified on ground of ‘State Necessity’ or the ‘nazria e zaroorat’). In the blistering words of Munir CJ the Apex Court stooped so low as to opine:
“A successful coup de’ tat is an internationally recognized legal method of changing a government”.
Coup, and legal? But since as a jurist Munir was a giant, lesser men would later take cover of his words. Munir emboldened them to validate, with the facility of an easy conscience, even the suspension of the entire Constitution by Generals Zia (1977) and Musharaf (1999).
But the CJP will have none of that. The criticism from within makes the greatest substance of our constitution subservient to the fig leaf of supposed process.
“Judge me, you gods! Wrong I mine enemies? And if not so, how should I wrong a brother” Brutus argued after stabbing his friend. Yet that act of fratricide, ostensibly to save the Republic, comes back to haunt him – as it will the Court – when a tormented Brutus kills himself. “Caesar, now be still: I kill’d not thee with half so good a will” are Brutus’ last words as he realizes that everything has fallen apart after his betrayal.
But thankfully Rome has not yet burned completely – the CJP bravely holds his ground with support from several honourable colleagues. They may not be a majority yet, but they hold steadfast to their loyalty to the Constitution.
But with the Sharifs and the “necessity wallas” no holds are barred. In a desperate frenzy to avoid polls and a seeming ignominious rout, the Sharifs have launched an expensive and indecent campaign against the CJP and judges of the same mind. They are targeted and maligned. In an astounding first, Maryam Nawaz displayed on a vast bill board at a public meeting the photos of two sitting judges and one retired chief justice. In a scathing speech she beseeched the crowd to recognize the national villains and traitors. From London, where he resides after absconding from jail as a convict Nawaz demands: resign! Interior and Law ministers shout in Parliament: resign! resign.
The CJP rightly turns a deaf ear to these demands. He is focused on the Constitution. “Polls not later than 90”. “Not later than” Article 105(2), the negative imperative. Neither the Sharif’s nor their backers want the poll and a comprehensive defeat. The CJP is in high threat.
But he also has the high moral ground. And he has his legions: lawyers and civil society. Lawyers admire brave and independent judges. They detest and decry the Doctrine of Necessity. They will come out in bigger numbers today than they have ever before.Of course, in the present case, as in every case, the ‘power that is’, is the ‘miltablishment’ (a word artfully coined by Najam Sethi). Elections must be held in 90 days, but the miltablishment won’t have that.
And if the Court doesn’t play ball, then better to tear it down, with help from within, than to have it stand in the way of such “higher” purpose. What after all is the Doctrine of Necessity that has done so much damage to our value system? Simply put: “The Constitution may undoubtedly require a certain action but since the ‘powers that be’ prescribe otherwise, let it be otherwise.”The CJP needs only to maintain his stance: No Doctrine of Necessity.
The order of 1st March must be implemented. Softly but firmly. It is an order no one can defy. Those in the Cabinet who were present and took the decision to defy the orders of the Court, must be summoned.
The 42 who signed the National Assembly resolution demanding that the Government defy the Supreme Court must also be summoned. They have to answer. Any one not heeding the summons must be tried ex parte. The ultimate soft power is with the CJP.no order of the Apex Court can be defied.