Necessity and overkill
Gen Mohammad Ayub Khan vacated the post of C-in-C Pakistan army in 1958 when he removed Iskandar Mirza as president, but remained in uniform as Chief Martial Law Administrator (CMLA), taking in 1962 the rank of Field Marshal (Field Marshals never retire).
He was elected president (obtaining 61%) by an electoral college of 80,000 Basic Democrats (40,000 each in East and West Pakistan) in a much-vilified contest against Madar-i-Millat Mohtrama Shirin Jinnah in 1964. Pervez Musharraf is similarly on the verge of transition from military to civilian role, but the Electoral College is much smaller, about 700 or so parliamentary votes.
With the resignations of opposition MNAs/MPAs, this number (as well as the legitimacy of the elections thereof) has become even more miniscule. Since Ashfaq Kayani as the vice-chief army (to become COAS when Musharraf vacates the post) and Tariq Majeed as Chairman JCSC are to take over on Oct 8, Pervez Musharraf should fight the elections Ayub-like, without the army chief post, otherwise it creates a horrendous precedence.
The Supreme Court (SC) Sep 28 judgment has given a rather ambiguous "exit strategy" from the uniform. Since July 20, politicians and lawyers have been hailing repeated judgments of the SC in their favour. With one adverse judgment, that also on the technical point of maintainability, the SC is being reviled like never before in its history. Those who supposedly want pure democracy are hell-bent on de-railing the entire process.
Memories are selectively short, and one must put the record straight, "the doctrine of necessity" was resorted to initially by the bureaucracy. The notorious annunciation came to life with the Maulvi Tamizuddin case in 1954, the precedent being repeatedly used by military rulers (or presidents, pun intended) ever since.
To quote from an article by respected lawyer (and Tehrik-i-Insaf leader) Mr. Hamid Khan: "In 1951, a vacancy in the Federal Court of Pakistan (FCP) was to be filled from West Pakistan, the obvious choice was the senior-most judge available, Chief Justice (CJ) Munir of Lahore High Court (LHC). Munir used his political contacts to ensure that he retained (in his view) the more powerful and prestigious position as CJ LHC. Justice Cornelius, junior to him, was appointed to the FCP."
Mr Hamid Khan goes on; "In 1954, with Justice Rashid retiring as CJ FCP, the obvious replacement was the senior-most judge, Justice Abu Saleh Muhammad Akram, a Bengali. The most powerful man in Pakistan since unceremoniously dismissing Khawaja Nazimuddin as prime minister and appointing Muhammad Ali Bogra in his place, Governor General (GG) Ghulam Muhammad was, luckily for Munir, an old friend belonging to his clan. The Central Law Ministry proposed that Pakistan, then being a British dominion, request the British government to nominate a Law Lord to act as CJ FCP on retirement of Justice Rashid. It was expected that Justice Akram, a true Pakistani and patriot, would not approve of this proposal. Akram asked the GG not to appoint a Britisher to head the judiciary because, he said, it was after a long struggle that we had gotten rid of the Britishers. By offering to forego his claim if a Pakistani was appointed, Justice Akram fell right into the trap laid for him and Munir became the chief justice."
To quote further: "In October 1954, Ghulam Muhammad dissolved the Constituent Assembly in retaliation for being stripped of many of his powers under the Government of India Act, 1935. The Sindh Chief Court struck down the dissolution order. Ghulam Muhammad turned to Munir to help him. Munir feared that, with Shahabuddin and Cornelius together on the Court, they could carry Akram with them and he (Munir) would be in a minority. Ghulam Muhammad very cleverly persuaded Shahabuddin to be acting governor of East Bengal. He remained acting governor when the case of Maulvi Tamizuddin was heard by the FCP, being substituted by Justice S.A. Rahman who was CJ LHC taken as an ad hoc judge for attending the Federal Court hearings. Cornelius was the sole dissenter. Justices Sharif and Rahman were with Munir, Justice Akram choosing not to join the camp of dissenters."
Contrary to the euphoria flooding the ranks of the Musharraf regime, the Sep 28 SC judgment has given Pervez Musharraf only temporary (and dubious) reprieve. The SC was technically right in dismissing maintainability, but by avoiding the spirit of the law in deciding on merit they opened up a legal Pandora's Box.
Having tasted victory once (in the CJ's Reference) by successfully inflaming the streets, the lawyer community is going the same route, instigating the public to join them in the streets and thus pressurising the courts. The lawyers' outburst inside the SC courtroom on announcement of the Sep 28 judgment was only the start of a concerted process of coercion. With the stakes so high, the Marquess of Queensbury rules do not apply.
Eight years after military rule commenced without draconian measures, with the vociferous backing of all sections of society except for the handful they had removed, the regime is inexorably moving towards imposition of a harsh martial law, or at the least an emergency.
While it is anyone's right to disagree with the 6-3 verdict of the 9-member SC Bench, and vehemently perhaps, it is rank contempt to besmirch the integrity of the judges. The media is also guilty of this excess by allowing this to be aired; disparaging the SC amounts to encouraging anarchy. Only 250 or so lawyers created mayhem outside the Federal Election Commission and the SC in Islamabad, how many more will now join them in the streets?
The Sep 29 fracas was unnecessary and obnoxious. The lessons of May 12 have not been learnt. Provoking more-loyal-than-the-king minions into rank overkill seems to have become a piece of cake. By displaying that Pervez Musharraf is a bloody dictator, something he is not, are those who perpetrated this outrage really his sympathisers? Instead of a smooth, trouble-free presidential election on Oct 6, and I am still hoping he will take part without wearing his uniform, Musharraf's "advisors" have inadvertently laid the groundwork for his eventual downfall.
A confrontation course with two important sections of society, the lawyer community and the media, dangerous to go up against separately, can be lethal. Conversely, this confrontation can also put-paid to a return to civilian rule. In 1969, the crowds got rid of Ayub Khan, they got Yahya Khan for another three years. In 1977, a mass political movement forced the downfall of Zulfikar Ali Bhutto, Gen Ziaul Haq promised 90 days and stayed more than 4000. Where is the surety that bidding goodbye to Gen Musharraf will not mean replacement by another four-star (or worse, someone much junior), not as liberal and tolerant, at least till now?
All this is grist to those waiting patiently in the wings to test "the doctrine of necessity" all over again "in the national interest." When will those of us who have had the benefit of real-politik education and (bitter) experience get educated by that experience?
Ikram Sehgal is an eminent Pakistani political analyst and columnist.