In mammoth decision yesterday late evening – the Chief Justice of Pakistan Honorable Iftikhar Mohammed Chaudhry and a bench of 12 Supreme Court Judges passed an order declaring the actions of Nov 3rd 2007 Invalid and unconstitutional. This comes after a struggle of over one year and 270 days since that fateful date in November 2007 when the then President of Pakistan General Pervaiz Musharraf enforced an emergency in Pakistan and over threw the Supreme Court replacing them with hand picked judges who approved and validated the Emergency Order.
Following the enforcement of a Martial Law across Pakistan in 2007 many lawyers, jounralists and civil society activsts rallied against this illegal aggresion by the military dictator. The struggle waged on for almost a year and today it can easily be hailed as a momumental decision for Pakistan. It is probably the first time an independent judiciary has flexed its muscles to show the people that justice will prevail over might.
The verdict was quite clear on many points
- It declared Gen Musharraf’s action of declaring emergency on Nov 3, 2007, as illegal and unconstitutional, but refrained from passing any order against him.
- It also declared all appointments of judges since Nov 3 taken in consultation by, what it described as an unconstitutional chief justice, as illegal and that they ceased to exist as judges with immediate effect.
- The court declared that creation of the Islamabad High Court under the emergency order was unconstitutional and that its judges would cease to remain as judges.
- The bench made it clear that the present dispensation, including parliament, will remain intact.
- It decided not to insist that President Asif Zardari take a fresh oath from a de jure chief justice. Justice Dogar had administered oath to President Zardari.
- The bench said that although it had reservations about the way the issue of presidential ordinance was handled by the Supreme Court during the emergency period, it decided that instead of undoing them, including the controversial National Reconstruction Ordinance (NRO), the present government should be given 120 days to regularise them through parliament.
The judgment was a very carefully drafted document, it touched the core issues of declaring the unconstitutional steps by President Musharraf illegal and his subsequent appointment of judges illegal, since by the understanding of the court, the court positions never fell vacant. At the same time the bench hailed the parliament and have asked them to decipher the controversial NRO which was life line for many notable corrupt politicians like our recently elected President Mr. Asif Zardari and many jailed criminals within the MQM framework.
I believe it is a great victory for Pakistan, it is a hopefully the start of creating a viable and independent Judiciary that can keep a check on our corrupt politicians.
The hot question that is being asked across Pakistan is – what happens to the NRO? For now the Supreme Court has entrusted the Parliament to validate the NRO within 120 days. I believe that is where the clincher lies, the big question is who amongst the parliament benefited the most out of the NRO, I believe it is here that Zardari will feel the pinch and will find it difficult to rally in 2/3 majority required to validate this ordinance as a part of the Law of Pakistan. Deals will have to be made and I doubt Nawaz Sharif or the PML-N will take it easy without some major compromises which may further weaken the Presidency, will the article 58(2)B come to the forefront in exchange for the 3rd term relaxations that Nawaz Sharif so dearly needs to become the Prime Minister for the third tenure [not permissible under the Constitution of Pakistan.
Zardari at the same time also has to tame a potential split within his own party. It has been for sometime the old-block of PPP seems to be aggregating under the Prime Minister Yousuf Raza Gilani while the major NRO benefciriary like MQM and Rehman Malik have pledged allegence to the President. The noose on Gilani is not without complications as the Prime Minister Gilani had some cases waived under the NRO, so it may be the weak link that Zardari may exploit to prevent a runaway faction within the PPP
All said – its now a forgone conclusion that we are about to have an entertaining 120 days, but we must contend with the fact that our Supreme Court has done us proud it has restored belief that What goes up, Must come down – Musharraf from his hay days of 2000 has literally been shoved to an embarrisngly halt, he should now contend to remain hidden within his Edgeware Road flat in London where it might be best that he shall stay.
I, along with the members of the Civil Society which were actively participating in the campaign to restore the judiciary celebrate this decision. We in turn hope that this is the first step towards an independent Judiciary which can possibly help lead Pakistan out of the doldrums of depression into the heights of success.