Road to restoration
03 March, 2008
By Zahid F Ebrahim
The newly elected parliamentarians are searching for a method to restore the pre-Nov 3 judiciary and fulfil the mandate given to them by the people of Pakistan. Those who have been rejected by the electorate claim it cannot happen without a two-thirds majority in parliament. President Pervez Musharraf has claimed that the present courts are a fait accompli and that there is no legal basis to restore the pre-Nov 3 judiciary.
However, the road to restoring the pre-Nov 3 judiciary requires no legal underpass or any constitutional flyover. It does not require a two-thirds majority in parliament to amend the Constitution as the president's men claim, nor even a simple-majority resolution by the newly elected representatives. It requires only the will to perform our constitutional duty.
On Nov 3, 2007, the Government of Pakistan, starting from its president and down to the faceless police officers manning the
barricades in the Judicial Colony in Islamabad, have acted in violation of their constitutional duty. Article 190 of the
Constitution says: "All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court of Pakistan." Yet, since Nov 3, the Government of Pakistan has refused to act in aid of the Supreme Court. In fact, the executive authority of the country has acted, in open defiance, to subvert and strangulate the apex court.
In the late afternoon of Nov 3 news broke that President Musharraf had suspended the Constitution by a so-called Proclamation of Emergency and arrogated to himself the right to amend the Constitution as he pleased and the authority to dismiss the judges of the superior courts of the country as it suited his fancy. This action, as the president himself boasted as being unconstitutional, was not entirely unexpected. Apprehending such an illegal act, an application had been filed in the Supreme Court on Nov 2 by the lawyers, challenging the president's election.
Within hours of the issuance of the PCO, a seven-member bench of the Supreme Court, led by the chief justice passed an order that changed the course of history. The bench ordered that "[the] government has no grounds/reasons to take extra- constitutional steps," and proceeded to restrain president Musharraf and Prime Minister Shaukat Aziz from "undertaking any such action which is contrary to the independence of the judiciary." The Supreme Court restrained Pakistan's "Civil and Military authorities…[from] acting on the PCO" and held that "no Judge of the Supreme Court or the High Courts chief justice(s) shall take oath under the PCO…"
For the first time in Pakistan's judicial history, the majority of its Superior Court judges resisted a coup d'etat. However, the executive authority refused to come in aid of the Supreme Court. In gross violation of its constitutional duty, the executive authority detained the judges and obstructed them from carrying out their judicial duties.
After passing the order on Nov 3 suspending the PCO and other unconstitutional actions of President Musharraf, the Supreme Court bench directed that the case be put up before the full court on Nov 5. But on Nov 5, the judges of Pakistan were under illegal detention.
On the road to restoration, the path before the newly elected government is remarkably simple. After taking oath of office, the new prime minister must pick up the phone and direct the local administration in Islamabad and the four provincial capitals to act in aid of the order passed by the Supreme Court of Pakistan on Nov 3. Consequently, the barricades in the Judicial Colony Islamabad will be removed and the illegal restraints on the chief justice and other judges will be lifted. Chief Justice Iftikhar M Chaudhry and other honourable judges will be driven to the Supreme Court building and escorted to their chambers and their courts. This simple directive will be repeated in the four provincial High Courts. Thus, the judiciary of Pakistan will stand restored. The mandate given to the newly elected representatives by the people will stand fulfilled.
There are, of course, complex questions of law for lawyers to mull over. What will be the consequences, if any, for those individuals who violated the order of the Supreme Court dated Nov 3? What will be the status of those individuals who have taken oath in violation of the Supreme Court's order? What will be the legal effect, if any, of proceedings taken in various courts after Nov 3? These questions cannot be answered by the newly elected parliament. These questions can only be answered by the restored Supreme Court of Pakistan.
One last question which plagues all discussion on the issue of the restoration of the judiciary is what will happen to President Musharraf? Well, the restored Supreme Court will resume its hearing of Justice Wajihuddin's petition challenging the eligibility of Mr Musharraf to contest the presidential election. The Supreme Court will decide the fate of Mr Musharraf in accordance with the law, and not the opinion of Condoleezza Rice.
All seemingly complex and convoluted constitutional absurdities will stand resolved if the newly elected government performs its constitutional duty and acts in aid of the Supreme Court's Order dated Nov 3, 2007. That is the road to the restoration of the judiciary.