Restore democracy in three years, says SC

By Amit Baruah

ISLAMABAD, MAY 12. The Pakistani Supreme Court today ``validated'' the military coup of October 12, 1999 while setting a three-year time-frame for the handover of power to an elected Government by October 12, 2002.

The stamp of ``legitimacy'' has now been conferred on the military regime of General Pervez Musharraf by the new-look Supreme Court, half of whose judges had refused to take oath under a Provisional Constitution Order promulgated by the Army Chief.

Invoking the ``doctrine of necessity'', a 12-judge Bench said the ``extra-constitutional step of taking over the affairs of the country by the armed forces for a transitional period to prevent any further destabilisation, to create a corruption-free atmosphere at the national level through transparent accountability and revive the economy before restoration of democratic institutions under the Constitution, is validated; in that the Constitution offered no solution to the present crisis.''

Disposing of petitions calling for a return to elected rule, the Supreme Court, which held that fresh elections could be held on the basis of fresh electoral rolls, whose preparation required two years, allowed Gen. Musharraf three years from October 12, 1999 to achieve his ``declared objectives'' of putting Pakistan back on the rails.

The 27-page order, to be followed by a detailed judgment, said the ``Chief Executive shall appoint a date, not later than 90 days before the aforesaid period of three years, for holding of a general election to the National Assembly and the provincial Assemblies and the Senate of Pakistan.''

The Supreme Court stated unambiguously that Gen. Musharraf, Chief of the Army Staff, and Chairman, Joint Chiefs of Staff Committee, was a ``holder of Constitutional post''. His ``dismissal'' by the then Prime Minister, Mr. Nawaz Sharif, on October 12, 1999, was ``void and of no legal effect''. The court also said Gen. Musharraf was entitled to amend the Constitution and take ``all such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive''. However, no amendment was possible in the ``salient features'' of the Constitution - independence of the judiciary, federalism and parliamentary form of Government blended with Islamic provisions.

The court also validated ``all past and closed transactions, as well as such executive actions as were required for the orderly running of the state and all Acts, which tended to advance or promote the good of the people....''

The judgment upheld the contention of the military regime that those responsible for running the affairs of the state previously were themselves accused of corruption, were loan defaulters, had attacked the Supreme Court, destroyed institutions, wrongly declared their assets and undermined the economy.

It said the National Assembly, Senate and provincial Assemblies were ``closely associated'' with the former Prime Minister and there was no ``real democracy'' in the country which was, by and large, under ``one-man'' rule. An attempt was also made to ``politicise the Army, destabilise it, and create dissension within its ranks....''

The military take-over could have been avoided had the President's power (Article 58 (2) (b) to dismiss an elected Government not been taken away by Parliament in March 1997.

``With the repeal of Article 58 (2) (b) of the Constitution, there was no remedy....to meet the situation like the present one in which the country was confronted, therefore, constitutional deviation made by.....General Pervez Musharraf for the welfare of the people rather than abrogating the Constitution or imposing martial law.....is validated for a transitional period on ground of state necessity.....''

``Legal recognition/legitimacy can be accorded to the present regime also on the principle that the Government should be by consent of the governed, whether voters or not. Here there is an implied consent of the governed i.e. the people of Pakistan in general including politicians/parliamentarians, etc. to the army takeover, in that no protests worth the name or agitations have been launched against the Army takeover and/or its continuance....''

However, the court claimed that ``prolonged involvement of the Army in civil affairs runs a grave risk of politicising it, which would not be in national interest, therefore, civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives which necessitated the military takeover....''

Responding to the order, Mr. Khalid Anwar, former Law Minister and PML(N) counsel, welcomed the ``time limit'' prescribed by the court while objecting to the power given to Gen. Musharraf to amend the Constitution.

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