Tag Archives: doctrine of necessity

Pakistan’s “Suprema Lex”

Pervez Musharraf and Chief Justice Iftikhar Chaudhry

The English-langauge daily Dawn reports today that a sense of foreboding has taken over Islamabad, where politicians and analysts fear the possibility that Pakistan could be heading towards an extended caretaker government – what some call the “Bangladesh model” after that country’s flirtation with unelected technocratic governance in 2006. Such a move would require validation from the Supreme Court, though, raising questions about whether the current Court would give sanction to such a measure. Unfortunately, there is reason to believe they might.

Pakistan’s Chief Justice, Iftikhar Chaudhry, is best known as the man who was removed from the bench and placed under house arrest by Gen. Pervez Musharraf in 2007. What is less often remembered, though, is Iftikhar Chaudhry’s role in facilitating Gen. Musharraf’s 1999 coup against the democratically elected PML-N government, and his giving sanction to Gen. Musharraf’s changes to the constitution in 2002.

In 1999, Gen. Pervez Musharraf deposed then Prime Minister Nawaz Sharif’s government in a military coup and promulgated the Provisional Constitutional Order (PCO) of 1999 declaring a state of emergency and suspending the Constitution. Gen. Musharraf ordered judges to take a new oath under the PCO, which many refused. Iftikhar Chaudhry was not one of them. In 1999, Iftikhar Chaudhry chose to take an oath of allegiance to Gen. Musharraf’s new military dictatorship.

Some might argue that Chaudhry was only doing what he had to in order to maintain a check on the new dictator, but this wasn’t the last time that Iftikhar Chaudhry gave judicial cover to Gen. Musharraf’s exploits. In 2000, Justice Chaudhry joined the Supreme Court in dismissing challenges to Gen. Musharraf’s coup. The Court, in its own words, “validated the extra-constitutional step on the touchstone of the doctrine of state necessity and the principle of salus populi suprema lex [trans. “Let the good of the people be the supreme law”].”

In 2002, Justice Chaudhry again joined the Supreme Court’s decision to dismiss petitions against Gen. Musharraf’s 2002 Legal Framework Order (LFO) which amended the constitution to, among other things, give Gen. Musharraf the power to dissolve parliament at will.

In 2005, Justice Chaudhry was one of five Supreme Court justices who voted to uphold Gen. Musharraf’s 17th Amendment to the Constitution, further giving judicial cover to exta-constitutional measures.

Justice Chaudhry’s long history of validating Gen. Musharraf’s extra-constitutional measures has led to the perception among some that he is a military stooge, and that his battles with Pakistan’s current democratically elected government are a sign that he is facilitating a “judicial coup” at the military’s behest. Things are not so simple.

Justice Chaudhry’s support for Gen. Musharraf’s dictatorship earned him the position of Chief Justice in 2005, but his independence earned him a suspension only two years later when he began to find against the military government. In one of many political missteps by the military dictator, Gen. Musharraf placed Chaudhry and his entire family under house arrest, making Chaudhry a political martyr and expediting his own downfall.

After being reinstated by President Asif Zardari, Justice Chaudhry has continued to use the court not only as a tool against civilian officials, but against Pakistan’s military intelligence agencies, publicly taking them to task for illegally detaining terror suspects. This is often cited by the Chief Justice’s supporters as further proof of his independence.

Whether or not Iftikhar Chaudhry is colluding with the military or not is the wrong question. The right question is whether he is acting within the constitutional confines of his own institution. Unfortunately, several of his past legal decisions suggest Justice Chaudhry subscribes to a jurisprudence that does not recognize constitutional confines, instead seeing his role as an independent political activist.

Justice Chaudhry claims that he no longer supports the “doctrine of necessity,” but with the introduction of the “basic structure doctrine,” he may no longer need it. The Chief Justice now has a tool that not only allows him to interpret the Constitution, but to define it.

As Pakistan proceeds towards national elections next March, Chief Justice Iftikhar Chaudhry has the opportunity to demonstrate whether he really has turned his back on the “doctrine of necessity”, or if his recently stated belief that “We should only examine our own constitution to ensure that the will of the people prevails,” indicates that he still sees himself as the guardian of salus populi suprema lex. For the sake of Pakistan’s democracy, we hope it is the former.