Editorial: An "extra-constitutional" threat?

With a petition against his constitutional status pending at the Supreme Court, President General Pervez Musharraf says he may "consider extra-constitutiona l methods to enhance his term after the forthcoming general elections". This is the first blatant statement made by him since he took power and promised not to act like a "chief martial law administrator" . He was talking about his re-election by the electoral college in October-November before the next general elections. Why did he refer to the need for taking "extra-constitutiona l" methods?

President Musharraf says he will make the decision about taking off his uniform after December 2007, presumably after being elected for another five-year term as president while he is still wearing his uniform. He is not promising to take it off; and he is threatening "extra-constitutiona l" methods. He considered the possibility of the new parliament approving his double-identity bid by a two-thirds majority, meaning that the constitution could be amended to make him president plus army chief as in the 17th amendment the last time round. There is an earnest hope here of somehow getting his supporters a two-thirds majority in the next parliament after a rather prolonged period in the country's history where it is difficult without "a little bit of help" even to get a good simple majority.

His open allusion to getting himself another tenure through methods not mentioned in the Constitution may have come after sensing the change of mood at the level of the Supreme Court. As long as he thought the judiciary was pliant he insisted on doing everything within the ambit of the Constitution. Now the situation is completely different. So we can confirm the speculation that the firing of the chief justice of Pakistan may not have been owing to any other reason but the firm realisation that the apex court may not give the kind of support he had so far enjoyed. One can probably go on from here to try to grasp the drift of events after the dismissal of the chief justice.

Obviously President Musharraf thought that once the judge was fired he would stay fired. The awkward method of his ouster was forced by a lacuna in the Constitution since it did not clearly envisage a reference against the chief justice, the executing authority of the reference. Reliance was placed on the possibility that there would be a minor public shock at the manner of dismissal, after which it would be business as usual. After all, hadn't all the street challenges thrown by the opposition fizzled out because the people did not think it worth their while to respond?

The chief justice was acting uppity and reacted to his dismissal according to his character. The whole action was so blatant that dormant popular reactions suddenly crystallised and became a movement that many analysts thought would never happen. The judiciary has always been sensitive to popular reactions. After handling political issues as constitutional quarrels the judiciary was bound to develop this reflex. After a few weeks of agitation all over Pakistan it now appears quite obvious that the Supreme Court bench hearing a constitutional petition pertaining to the dual office of the president might conceivably deliver a verdict not to the liking of the president.

Hence President Musharraf's resolve to use "extra-constitutiona l" methods. But who is the purported recipient of this message? One is forced to assert that it is no one else but the Supreme Court itself. In the past, repeatedly upon the advice of certain "magician" advisers, the military rulers were able to force the judiciary to accept an extra-constitutiona l rule under the "doctrine of necessity". Pakistan's constitutional history echoes again and again to the phrase till it has become a joke, but the truth is that the judiciary, when faced with brute power, helplessly tries to hold on to some authority of legal review. To put it without periphrasis, it is the obiter dicta of the court while hearing the case challenging the reference which has caused the president to fire his "warning shot across the bow". But this threat will deepen the crisis instead of resolving it. It is too late to start threatening anyone. The threat of using force only works when one is strong. When power is slipping away, it has the opposite effect. *