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A Narrow Opportunity for Democratic Change
Opening Windows in Pakistan
by IJAZ KHAN

In 1985, in classroom in London, Professor Geoffrey Williams explained revolution with a quote from Prof. Hans Kelsen as ‘a Law creating fact’. Revolution replaces existing legality and creates new legality. Legitimacy flows from the act of popular support. Coup d’ etat is on the other hand taking over of the government by a few individuals in violation of constitution and does not create any new legality. On a question, he explained there is no successful Coup d’ tat, there is always attempted coup d’ etat. The learned Professor further emphasized the point ‘every successful coup d’ etat is a revolution.

Revolutionary theory is based on the acknowledgement of the power of the people. The question thus raised was, how to tell people are supporting the change of legality. The answer is simple; through massive support on the street which overwhelms all resistance by the status quo powers (even though the status quo powers are constitutional and legal). The stress being on overwhelming means a Coup d’ etat succeeds and thus changes into revolution when there is no resistance – people expressing their support through acquiescence. The determination whether a particular unconstitutional fact act has created a new law depends on the equation between resistance and acquiescence.

The act of the Pakistani Military Chief of Staff of November 03, 2007 must be viewed against that equation. That will also help us in differentiating between the earlier similar acts with this one. Through an executive order for which the Army chief had no constitutional authority amended various provisions of the Constitution and required the members of higher judiciary (Judges of the Supreme Court and the four high courts) to take oath under it. Those who refused or may be not asked to take oath were declared as no more judges. They were stopped from performing their orders by force. Between the oath taking and the Military Chief’s order, the then existing Supreme Court met and declared the order as null and void. Majority of the judges refused to take oath under the amended constitutional order referred to as Provisional Constitutional Order (PCO) as the order of the Army Chief was termed. This much had been done earlier in 1999 as well, when some honorable judges refused to take oath under the then issued PCO. The difference this time round is that the present judges not just refused to take oath but also refused to acquiesce. In this resistance they have continuously received popular support on the street, led by Lawyers with political as well as rights activists.

The situation as it stands today can be described as a continued attempted coup de’ tat, which has not yet achieved the status of revolution through acquiescence, however, it has not been turned back so we can not yet call it an attempted and failed coup. As a result we have a situation with de facto judiciary consisting of the judges who took oath under the November 3 order of the Army Chief and we have a de jure judiciary which existed prior to that date under a constitution legitimized through acquiescence of stake holders, most important being the people and the then judiciary, post October 1999, and that acquiescence formalized through the 17th constitutional amendment. In the current situation when there are both de facto and de jure authorities, the decisions of the de jure authority is considered as legal. In the absence of the de jure authority the decisions of the de facto authority would have the same legal force as that of the de jure authority.

In our current situation, the de jure judiciary has come up with only one decision and that is declaring the Military Chief’s orders of November 03 2007 as unconstitutional. It has, however, refrained from issuing any other orders even after being freed from illegal and unconstitutional confinement. So, it should be clear that according to legal doctrine, the decisions of the de facto courts are as much valid as those of the de jure courts would have been. This should lay down to rest any fears about constitutional and legal crisis, however, that does not change the legal status of the sitting judiciary from de facto to de jure. For that both acquiescence and formalization of that acquiescence through a constitutional amendment are required. Those ordering it know it as well, as they, in recent history, have always proclaimed their as Provisional; clearly acknowledging that their orders must be formalized and clearly they cannot be without a constitutional amendment whenever the parliament meets. Knowing well that whatever, the present parliament will not endorse that PCO, the protagonists of the dictator are arguing that the constitution already stands amended. The de facto (and not de jure) removal of Judges was only a consequence of that constitutional amendment, even if their removal was the main purpose of the PCO.

As explained above today the situation on ground is that the attempted coup de’ tat of Nov 3 has not succeeded yet. If the people of this country through a simple resolution of the parliament reverses that, then that would be well within their power. Similarly if the parliament and the people also accept such act of the parliament that accepts PCO as constitutional then that would be termed as acquiescence. The de facto judges would become de jure and the de jure judges would no more be judges; de jure or de facto. Such acceptance may even be through an amendment removing the inserted amendments and appointing Justice Ifthikhar Chaudhry as Chief Justice for life. It is of fundamental significance for this country to start its healing process which is the same as democratization process, to simply treat the amendments of Nov 03 as void ab initio (never having taken place).

The issue is not that of the person of Iftikhar Chaudhry, the issue is of determining the loci of real power in this country; do people have ultimate power or is it enjoyed by some individual having violent power. The issue is not about one or more great or not so great judges as much as it is about the sovereignty of the people of Pakistan. The judges, including Justice Chaudhry Iftikhar symbolizes the rights of the people to run their state in accordance with their social contract, which can only be amended by them through a procedure they have approved. It must also be remembered the ultimate power is not parliament nor judiciary and also not the army, it is the people on the street. In civilized democratic states, parliaments represent the people and political parties organize and articulate the different perceptions and interests making up a given society. So, when one talks of the supremacy of the parliament they are actually talking of people’s supremacy and sovereignty.

Zulfikar Ali Bhutto understood this when he made ‘Fountainhead of power are the people’ as one of the fundamental slogans and promises of his political party and Bacha Khan epitomized this principle through his life of no compromise with the establishment. Is history now giving that role to Nawaz Sharif? We shall see soon. It must be remembered that parliament is agent of the people and like with any agent when those who are represented by the agent can come up and tell the agent you are not doing a good job, I will take over directly from this stage on, the people can also through coming out on streets over rule parliament. Let me add quickly that will not be a good option and this author really hopes that people would not be called upon to exercise that option and right. Political parties that would be present on the street helping articulate people’s view will get the distinction of representing them.

To conclude, history has given an opportunity to the people of Pakistan, their representatives in parliament and their political parties to assert people’s power. The role of the judiciary headed by Justice Iftikhar Chaudhry and supported by the legal fraternity led by the poet lawyer leader Aitzaz Ahsan, is that of the opportunity providers, the window openers. They have kept the window open till now, but it will depend on the people and their political parties to pass through that window beyond May 12. Finally, in the words of Dr. Eqbal Ahmad, ‘People of Pakistan can not have democracy unless they want it’.

Dr. IJAZ KHAN is an Assistant Professor in the Department of International Relations at the University of Peshawar.