(Still a draft)
General Musharraf has again given an opportunity to all and sundry to decide afresh what is the law by proclaming the Proclamation of Emergency and PCOs of November and December 2007.
To determine the validity of these pronouncements as law one has to determine what is law?
Following are some of the definitions of law:
(1) Law is what judges say it is.
(2) Law is what the man with the gun says it is. Law flows from the barrel of the gun. People have an ingrained habit of obedience to power and they accept the strictures of the man with the gun. The notion of revolutionary legality espoused by dear old Justice Munir is within this genre.
(3) Law is what God has ordained and exists regardless of whether or not it is followed i.e. natural law.
(4) Only those rules are laws which are recognised as such through the use of the rules of recognition i.e. those are formed in accordance with the accepted rules regarding how the laws are to be formed. For instance if the rule of recognition is that only a rule passed by elected representatives is law then a rule formed in any other manner will not be law.So is the PCO(s) law?
Lets apply these definitions or descriptions to the PCO(s).
(1) According to the first definition the judges will determine this question. The question then is who are the judges? If the PCO is law then only those who took oath under it are the judges. However, if the PCO is not law then the persons who acted as judges under the previously accepted law are the judges.
(2) The man with the gun has said that the PCO is the law and hence according to this definition so it is. The only challenge can be that another man with a bigger gun says that the PCO is not law.
(3) So what has God ordained? As the majority of us are Muslims so let us see what Allah has laid down as law and if the PCO is in accordance with it? The question in our common parlance becomes is the PCO Islamic or not?
(4) In our history the rules formed as has been the PCO have been recognised by the judges as laws and those were also followed by the public-at-large. Thus, it can be said that the PCO is a law. However, it can also be argued that the last valid rules of recognition were enshrined in the constitution and as the PCO is not in accordance with those hence it is not a law.
Now, you will see that there are no clear answers as per the above criteria. The answer will depend on what criterion one chooses to follow and what interpretation one adopts.
In my opinion the law and the morality can never be disentangled. Well, not generally by ordinary mortals. And, in Pakistan the morality is hardly ever different from self-interest. The equation thus becomes a simple one: if the PCO satisfies the interests of the people who have more power than those whose interests the PCO harms then the PCO will be accepted as law but it will not be so accepted if the reverse is the case.