37
Schmitt believes it to be impossible to anticipate the nature of future emergencies
and predict a solution. In his view it is not important to have a law in place that
determines who can take a decision in the state of exception:
140
'There can be a
'sovereign authority, even where such an authority is not recognized by
constitutional law'.
141
The quotation above seems to suggest a highly realist or cynical analysis in that it
depends who has the greatest power (possibly the military). All that matters is
whether there exists a person or institution (i.e. a sovereign) with the ability to take
a decision on the exception. The sovereign's act of suspending the law does not
require legal recognition since 'the law's applicability itself depends on a situation
of normality secured by the sovereign'.
142
This situation, when seen through the
lens of the constitutional history of Pakistan, leaves the country in an untenable
position. In theory the armed forces of Pakistan are subordinate to the government,
but history has proved otherwise, for example, in the case of the three military
regimes described in Chapter 4.
Schmitt believes that the act of emergency must be supported by a sufficiently large
and powerful constituency, otherwise such acts could hardly possess the factual
capability to suspend the law and to act successfully against the perceived
emergency.
143
Most of the time, dictators in Pakistan have initially ratified their act
of dissolution through the judiciary in the name of necessity,
144
then formed a
government with a sufficiently large and powerful constituency,
145
albeit one which
is un-representative of the country as a whole and in particular, certain provinces
that have only a minority of the population.
The Latin maxim
necessitas legem non habet (i.e. 'necessity has no law') used in the
cases mentioned in Chapter 4 was interpreted by Giorgio Agamben in setting out
his theory of state of exception in two different ways, i.e. 'necessity does not
recognize any law' and 'necessity creates its own law' (
nécessité fait loi).
146
He argues
140
ibid 5.
141
Carl Schmitt,
Political Theology. Four Chapters on the Concept of Sovereignty (G Schwab tr,
University of Chicago Press 2005) 12.
142
ibid.
143
ibid 5.
144
For example in the
Nusrat Bhutto case [1977] PLD [1977] SC 657 and
Syed Zafar Ali Shah case
[2000] PLD [2000] SC 869,
145
For example, Zia's PML (now PMLN) and Musharraf's PMLQ.
146
Giorgio Agamben, 'Chapter 1: The State of Exception as a Paradigm of Government' in
State of
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