Tidying up
JUSTICE Iftikhar Muhammad Chaudhry and the other judges who had refused to fresh oath on the Musharraf amended constitution when he declared Emergency and gave a new Provisional Constitution Order. It was indeed a very strange that the dictator had declared a second Martial Law against his own system. All actions that Musharraf took on November 3, 2007 -- declaring a State of Emergency -- have been declared null and void in law.
This judgement is not really revolutionary except in the Pakistani context. As a result, over a hundred judges of the Supreme and High Court have been sacked. General Musharraf had appointed them not on the relevant chief justices' advice but. That is why they had to go. They had taken a new oath on a spurious constitution that had been tampered by Musharraf.
Therefore, in a narrow sense, it is a clean-up of the judiciary itself, in which Chaudhury has declared the Musharraf appointed judges illegal and unlawful. The November 3 actions were declaration of a state of emergency, changes in the constitution, and sacking and imprisonment of fourteen judges of the Supreme Court and many in the various High Courts. This is a large-scale purge in the superior judiciary.
The reason behind the action is that the superior judiciary in Pakistan has had a bad record. It had meekly validated all military generals who carried out bloodless coups, against the law of the land and the constitution, and had generally dismissed elected assemblies and governments.
From the days of Justice Munir, who validated two illegal actions of General Ayub Khan in two cases, all generals who took over were validated --except technically one by Justice Hamoodur Rehman who declared Gen. Yahya Khan a usurper and did not validate him. But Yahya Khan had already been overthrown, and Zulfikar Ali Bhutto, could only be pleased by this judgement.
That bad name has been washed out in this case. How? The chief justice, along with the judges' larger bench, stayed in the Court long enough on November 3 to hear what Musharraf declared, and went into session and issued an edict saying that all the actions taken by Musharraf that day were illegal and unconstitutional. Musharraf's action included imprisonment of many of the sixty-two judges he sacked.
In this case, Justice Chaudhry has not called Musharraf's takeover illegal in the name of judging the particular legal document, National Reconciliation Ordinance, under which many politicians who were in detention were exonerated of their crimes in exchange for their political support to Musharraf and the party that he had made with the help of ISI.
There are many who have been hit. There is the formation of the Islamabad High Court. All the changes in the constitution that Musharraf made during the emergency have been quashed. One of the laws to raise the strength of judges by a finance act has been set aside. The appointment of new judges to the Supreme and High Courts, with Justice Dogar as the CJP, is illegal and void. Mr. Justice Abdul Hameed Dogar, specifically, has been called as an unconstitutional CJP. The court has recommended action by the Supreme Judicial Council against fourteen Supreme Court judges.
It is not a revolutionary change. It is calibrated one. Chaudhury has cleaned up the judiciary and the illegal actions of the government. Even President Musharraf had admitted on BBC that his November 3 actions were illegal and unconstitutional. It is not revolutionary because it does not want a derailment of the system. Only the judiciary that he bought from the open market is being proceeded against.
Chaudhury has preserved the Presidential oath. He has refused to take any action against Musharraf for his politics. Similarly, there is a highly controversial piece of legislation, the National Reconciliation Ordinance, under which a lot of corruption cases against the politicians were in the special courts. They were offered the choice either of staying on in detention or supporting Musharraf. That was one thing he has not touched. He has said that it is certainly a legal matter but it has to be done by the National Assembly.
The judgement has to be seen against the background of Pakistan politics. Four times have the generals aggressed against civilian governments. The establishment does not tolerate civilian governments and so-called corruption and ineptitude of the civilian politicians. This judgement will discourage future ambitious generals from taking over to an extent at least. This is what the Supreme Court could do and has done. It is a big step in the direction of establishing actual rule of law in the country and not the rule of a ruler.
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