Yes, My Lords, you owe it

Perhaps we are ready to reverse the tide of our history. This time, the infamous "doctrine of necessity" is about to be buried forever. The free and independent Judiciary is bracing itself to repay some of the old debts that it owes to the nation since the 1950s. No precedents of validation should become the basis of living with constitutional usurpations. If the culture of "force and deceit" from Pakistan's body politic is not rooted out this time, we will never be able to live as a free and democratic nation. Whether the honourable judges like it or not, the onus now rests on their shoulders for putting the country back on the constitutional path as charted under the 1973 Constitution. This time "blowing out" the flames or "papering the cracks" will not do. They must go beneath the disease and treat it at its roots by excising the tumour that has been growing in our body politic since the early 50s. Yes, My Lords, no more "doctrines of necessity" in any form or for any reason, not even for the "larger" good of saving a rotten system. Which system? The one of power and privilege that has decimated the country and its raison d'etat After the February 18 elections, the people were looking for a big change. But the change never came. We have a government which the people brought to power to bring about an end to dictatorship. They voted for the restoration of the 1973 constitution and independence of judiciary. They wanted immediate reinstatement of the judges of the superior courts who were removed illegally on November 3 and those who refused to take oath under PCO. This was their verdict on February 18. Woefully our elected rulers treated this verdict with contempt. They did not restore the judges until the people themselves came out on the streets. It took more than one year for those judges to return to their courts. The original constitution has still not been restored. General Musharraf's "armour cuirass" is still hanging in the presidency in the form of the Seventeenth Amendment. An elected president is not even ashamed of wearing a military dictator's worn out jacket. The key faces as well as the fall guys of the outgoing regime remain untouched. The system continues to be haunted by the same ghosts and the same wizardries. The politicians seem to have taken no lesson from their nine-year forced political banishment. They have done nothing to alleviate the sufferings of the common man. Instead, they have made their lives more miserable through chronic shortages of food, gas, electricity and aggravated security and law and order situation. They never set their economic priorities right and are mostly out of the country with a begging bowl. The legislative roaster of the National Assembly is jammed in committee mode with no sign of any lawmaking or early repeal of the notorious Seventeenth Amendment. Musharraf's tally of constitutional assaults is long. He was the architect of launching an unauthorised Kargil operation which his own senior army colleagues described as the worst "military debacle" in Pakistan's history. On his dismissal from the office of army chief for bringing ignominy to Pakistan, he retaliated with the "use of force and unconstitutional means" to overthrow an elected prime minister in October 1999. He then got the infamous Seventeenth Amendment approved by the Parliament with the help of religious parties whom he later used with his Western allies as a convenient scare crow. In March 2007, he filed a malafide "presidential reference" against the chief justice only to have the judicial "ground" cleared for his yet another re-election bid through unconstitutional means. It was a "judicial debacle" not different in its planning and execution from the one enacted in 1999 on Kargil heights. His ensuing actions were seen as an attempt to undermine the independence of the judiciary and have since then kept the country engulfed in a serious political crisis. After months of agitation and anxiety including spells of state hooliganism and vandalism seen in attacks on TV channels and a full-scale blood bath in Karachi on May 12, the crisis was "defused" with the Supreme Court giving its verdict on July 20, 2007 in which it rejected the "presidential reference" against the chief justice declaring all actions against him as illegal. General Musharraf squandered this opportunity for an honourable exit. He could have heeded to the popular slogan "Go Musharraf Go" in the thick of the judicial crisis. But he overestimated his staying power against the hovering storm that he had himself precipitated through his illegal and unconstitutional actions. He then went ahead with his highly controversial "re-election" on October 6 while still in uniform as army chief from the outgoing assemblies that had elected him for his last term and were completing their own term. He circumvented the application of Articles 41 and 63 of the Constitution to his otherwise ineligible candidature. As if this was not enough, Musharraf shocked the world through his November 3 extra-constitutional "emergency" in which he, as army chief, not only suspended the country's constitution, promulgating a "provisional constitutional order" (PCO) but also illegally removed those judges of the superior courts who refused to take fresh oath under his PCO. It was a 'martial law' in the name of "emergency" and an assault in one stroke on the constitution, the judiciary, the media and the fundamental rights of the people. It was an outright illegality. He himself admitted it. On December 15, 2007, he lifted the "emergency" but restored nothing. Musharraf took cosmetic measures only to further entrench his November 3 actions by giving them a life beyond the period of emergency through a flurry of unchallengeable presidential orders and decrees. The crisis did not end there. Mohtarma Benazir Bhutto's tragic assassination in Rawalpindi on December 27 which she was fearing in the absence of appropriate security was a big blow to the country's political process that she had initiated for Pakistan's return to a civilian democratic rule. General Musharraf's earlier "extra-constitutional" measures including his October 12, 1999 coup were brought before the next Parliament for "validation" and "indemnity" which he managed to receive in the newly elected but highly manipulated National Assembly in 2002 by a two-third majority vote. After the 2008 elections, he was not so lucky. Any attempt at securing validation of his November 3 illegality in the new Parliament was doomed to fail. In the absence of a vote of confidence from the newly elected assemblies, his presidency also lacked legitimacy and moral authority. Indeed, Rousseau was right when he said: "The strongest is never strong enough to be always the master." Musharraf narrowly escaped his impeachment under Article 47 of the Constitution for his alleged acts of "gross misconduct and constitutional violations", and perhaps a likely process of accountability on charges of "high treason" as stipulated under Article 6 of the Constitution. The curtain on the final act of this "tragedy of errors" is now about to be drawn. Whether or not he accepts it, General Musharraf is caught "in the line of his own fire." The Supreme Court now hearing a constitutional case has "invited" him to appear in person or defend through representative his November 3 proclamation of emergency and replacing the constitution with a "provisional constitutional order" in his capacity as army chief. This may be the beginning of the end of constitutional usurpations in our country, and perhaps also a reminder of how history treats American-backed dictators who become the most loathed persons in their own countries, eventually seeking asylum in other countries. Yes, my lords, the "war of one against all" and the rule by force or deceit must come to an end. Machiavelli's infamous "doctrines of necessity" and the system based on constitutional aberrations and foreign-brokered expediency-driven deals in circumvention of the state law must be buried forever. Yes, my lords, you owe it to the nation. Changing faces will not do. The system must change. We need a system based on the rule of law, constitutional supremacy and good governance. The writer is a former foreign secretary