Clear and Present Danger

To deal with the situation in Karachi, the PML(N) threw out its own Chief Minister to impose Governor's Rule. With disorder rapidly descending into anarchy, the Army was brought in "aid of civil power" under Article 245 of the Constitution, Military Trial Courts (MTCs) being set up to deal with cases that qualified as falling under the head of "terrorism". Military Appellate Courts were set up as a last resort of appeal, two persons whose appeals had been rejected have been hanged.

In the meantime the Supreme Court, having been approached to define the legality of a "parallel" judicial system in the country, has suspended the further carrying out of the extreme punishment of death imposed by the MTCs till the case is pending in court is decided one way or the other. With the MTCs "teeth" clamped for the moment, their deterrent effect has been put in suspended animation.

Mian Nawaz Sharif is generally very badly advised as regards the rule of law and how to deal with the superior judiciary. Khalid Anwar may be a brilliant lawyer but is a disaster incarnate as the Law Minister. Everyone and his uncle knew that the setting up of MTCs would be challenged in the superior courts by someone or the other, what stopped the legal eagles of government from launching a pre-emptive strike and going to the Supreme Court first to seek their advice on the matter under the concept of "clear and present danger" to the sovereignty and integrity of the nation? The Justices of the Supreme Court are citizens of this country and being on a sliding scale probably live much more under the gun than other ordinary beings, are thus more acutely aware of the looming anarchy because of the failure of the lower courts. The Honourable Chief Justice and his colleagues have publicly commented in Court with words to the effect that they are quite concerned about the deterioration of law and order in Sindh, particularly in the vital port city of Karachi.

Without getting into a legal quagmire a via media could have been arrived at that would have maintained the effective deterrence of the MTCs without the question of the "parallel judiciary" in the country becoming a full-time bogey. By failing to anticipate the consequences, the Law Minister has put everything in jeopardy, the Supreme Court will have to be Solomonic to come out of this one without compromising either their integrity or the last bastion of integrity in the country, the Army. The Federal Government is living without much in the form in the credibility.

In the three months plus of Governor's Rule, terrorism has been considerably contained in Karachi. As the "sole representative" of the people of Karachi, it should have been in the MQM's interest to have peace and harmony in the city so that the economic engine could start humming again, opening employment slots for the vast unemployed in the city in both blue-collar and white collar jobs. By approaching the court to remove the MTC deterrence against the mayhem in Karachi, in fact the MQM "unofficially" acknowledges that its cohorts were behind the sustained urban violence in the city. A point has been proven by the imposition of Governor's Rule and the subsequent improvement of law and order in the city and the Province, that it was more than necessary. Even while allowing the Sindh Provincial Assembly to function to legislate laws, the Supreme Court has earlier upheld the imposition of Governor's Rule as a necessary evil in view of the situation.

Instead of being arrogant about their logic, the PM's legal team could have served the cause of the country far better by taking the route of "doctrine of necessity" in the face of "clear and present danger". There is no more damning proof than the MQM's tacit acceptance of guilt. If some of their militants were not outright murderers one could sympathise with them for being between a rock and a hard place. If the MQM openly defend the "terrorists" they acknowledge association and thereby international retribution, and if they do not, they alienate their field operatives who have sacrificed everything for the MQM's leadership, if not for the MQM cause.

The Pakistan Army is also in a no-win situation. For the sake of the country it well realises that instead of large-scale physical involvement in the city, its role "judge and jury" was best suited within the parameters of the Constitution. However the government's blundering of its gameplan has put the credibility of the Army on the firing line. The Supreme Court's stay of executions has created a limbo of sorts that is bad for the Army's continued role, now it cannot avoid getting involved in a legal tangle. The Judge Advocate General's (JAG's) Branch is known to be a careful and mature organisation that has kept the Army, even during Martial Laws, from being put in an untenable situation. Unfortunately what JAG may have wanted to avoid, the likes of Khalid Anwar and the Attorney General Farooq have placed the Army in.

The stakes are high here. If the MTCs do not function, then extra-judicial killings remain the only effective alternative to freeing the city of Karachi from terrorism. While Babar in 1995 was effective, will that be the only alternate? If terrorism manages to again make an appearance this city is doomed and one can have no doubt that would directly threaten Pakistan's existence as a nation.

Would anybody wait for that to happen?

With or without the Supreme Courts backing, the "doctrine of necessity" would be activated in the face of "clear and present danger". At the moment the Army is acting under Constitutional authority, what if it decided that democracy is part of the problem?

US Supreme Court Justice Oliver Wendell Holmes is the original author of the concept of a "clear and present danger". If a situation has arisen where the law courts cannot function without being intimated and that extra-judicial killings is a means of last resort, do not the MTCs act as an escape clause for bringing back the rule of law in the land?

One cannot counsel any particular route to those who matter, whether they are the instrument of exercising of power, the superior judiciary, or the rulers themselves. One can only advise pragmatism to avoid the complete breakdown of Constitutional authority. That would lead to authoritarianism and in the face of repeated instances of Bonapartism in the country's history, that is always a distinct possibility.

One can only say that while there are many problems to surmount, the "clear and present danger" one really fears that the Army may well soon decide to step in to stop the rot eating Pakistan body and soul. And that we well know will depend upon how ambitious or impetuous the COAS is!