The return of the Doctrine of Necessity!!

After the democratically elected parliament that represents the wishes of people of Pakistan passed the eighteenth amendment to the Constitution of Pakistan unanimously. It was hoped that it would bring peace, stability and normalcy in the functioning of this Federation that is desperately needed. With the Constitution back into its original state and most of the short-comings removed the nation took a breath of sigh.

Their peace, it seems was short-lived as the guardians of Constitution it looks, have after all not mend their old ways.

What is going on in the Supreme Court of Pakistan is tremendous. The basic law of the country is under threat! Of course this is not the first time this will happen therein, the courts have done it plenty of times to validate the martial laws of military dictators, when they suspended the Constitution they were sworn to protect.

But today there is no military dictator on who's behest this is being done (at least not openly). The independent judges are doing it on their own. They are deciding whether the Constitution is Constitutional or not? In the absence of their old cheat code aka doctrine of necessity they have found refuge in a new doctrine called the doctrine of basic structure. Since they had no Constitutional ground they seek refuge in a doctrine that has been rejected by the courts of Pakistan over and over again but obviously those courts were not as 'azaad' or independent as these ones.


Yet they did reject it over and over again, during democracies and dictatorships. Because those men, traitors some of them may have been, established a line, in ignorance or consciousness I know not. But every act was to be validated by the parliament to gain legality. No matter how many days had gone by, eighth and then seventeenth amendment were passed to legalize everything. To make it Constitutional, since Constitution of Pakistan can only be changed by the parliament of Pakistan and no other institution.

In exercise of its powers the Constitution was changed by the parliament once again in April 2010. It was challenged in the Supreme Court, but instead of dismissing the petitions the Court accepted them and officially disposed the shield of sanctity that surrounds the Constitution. But the question that baffles me is that if indeed the court decides that a single section of the Constitution is to be suspended, will the Supreme Court be committing high treason?

Did we not agree that be it Musharraf or Dogar or any other judge or general, the Constitution cannot be amended by anyone save the parliament? The article 175A is now part of the Constitution and no matter how many judges or lawyers or media anchors want, can it be altered, suspended or deleted, save by the parliament of Pakistan. Any attempt to do so would be high treason under the article 6 of the Constitution of Pakistan and the government would be duty bound to protect it and act against those who tried to subvert it.

So will Chief Justice Iftikhar commit high treason once again and become the first civilian to suspend(in whole or in part) the Constitution of Pakistan? Will he join the ranks of Ayub, Yahya, Zia and Musharraf, it seems unlikely in any other country but lest we forget this is the Islamic Republic of Pakistan!!