The detailed judgement of the Supreme Court on the November 3, 2007 emergency has important implications that need to be underlined. The most important among these is the injunction debarring the Parliament from condoning, let aside validating, affirming or adopting any unconstitutional act of a usurper, as long as Article 6 is a part of the Constitution.
This implies that any action taken by the former military ruler, considered to be violative of the constitution, is to be considered illegal "even if (it is) not challenged in a court, in the streets or in the political arena." In its detailed judgement, the apex court also buried the doctrine of necessity that continues to be invoked by men on horseback since Justice Muhammad Munir put the seal of approval on the extra-constitutional use of emergency powers by the Governor General Ghulam Mohammad on the basis of this concept.
In his judgement, Justice Munir cited Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', thereby providing the label that would come to be attached to the judgement and the doctrine that it was establishing. The doctrine subsequently drew support from the adherents of the positivist theory of law, like Hans Kelson, who rigorously exclude from their analysis any ethical, political, or historical considerations, and find the essence of the legal order in the 'black letter', or the laid-down law, which can be changed by political revolution.
This stands in stark contrast to the highly idealistic concept of justice enunciated by Justice Ijaz in the remark "Justice is a holy romance and every goodness emanates from it," contained in his lengthy note which forms a part of the judgement.
The detailed judgement holds that the doctrine of necessity, as applied in earlier cases, had absolutely no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution and in a manner not provided for in the Constitution. Another important decision concerns the role of the chief ministers in the appointment of the judges of the four high courts, an issue that recently generated political controversy in Punjab, with Governor Taseer maintaining that the chief minister had no role in recommending the names.
The issue has now been settled by the apex court ruling that the Governor can act only on the advice of the chief minister. This, however, raises the question about the legality of the appointments made without the involvement of chief ministers. The judgement underlines the role of the superior judiciary in ensuring that the citizens' rights granted by the constitution are not infringed upon and good governance is practised.
It expresses the hope that all institutions would endeavour to eradicate corruption and self-enrichment while devoting themselves to the service of the people. The apex court has promised to remain vigilant and ensure that people's constitutional rights are not infringed upon. As the judgement puts it, "the courts would, at all times, remain vigilant in this regard and would always come to the rescue of any beleaguered citizen or class of citizens, whenever and wherever an occasion arose".
This would imply that the Supreme Court would continue to take suo motu notice of any violations of these principles. A vital part of the judgement concerns the NRO and other Ordinances that have not been validated by Parliament. According to the detailed judgement, all cases in which benefit was given under the NRO after February 5, 2008, the date the Ordinance completed its constitutional 120-day life, would stand automatically reopened if the Parliament fails to approve the controversial Ordinance retrospectively.
To maintain that the benefits drawn from the NRO are past and closed transactions, a position held by the Attorney General, is not valid in the eyes of the apex court. This should particularly be disconcerting for President Zardari whose cases were quashed after February 5 when, in the Supreme Court's judgement, the NRO did not exist.
The verdict should serve as a wake-up call to the government, which should urgently get the NRO, validated from Parliament. The timely warning indicates that the Supreme Court is keen not to disturb the orderly running of the administration. It has, therefore, indicated what needs to be done precisely to provide a legal cover to the relief given to Asif Ali Zardari and a number of important government functionaries.