A landmark judgment
by
Javed Hafiz |
A full bench of the Supreme Court of Pakistan gave a landmark judgment on July 31. It declared the November 3, 2007 emergency and its legal framework called the Provisional Constitutional Order (PCO) clamped by President Pervez Musharraf null and void. Various ordinances issued by the former president during the emergency have been referred to the parliament for approval. The decision, however, protects the administrative and financial decisions, including the oath administered by Justice Abdul Hameed Dogar to President Zardari, even though the former would be deemed to never have been the Chief Justice of Pakistan.
At the time of the judgment, the higher judiciary in Pakistan comprised four categories of judges. The first category included Chief Justice Iftikhar Chaudhry and his colleagues sacked by Musharraf on November 3 but reinstated later. In the second category were the judges who were not sacked and took oath under Musharraf’s PCO, like Justice Abdul Hameed Dogar. The third category was the judges elevated from high courts to the Supreme Court or from sessions courts to high courts. The fourth class included judges appointed by the Musharraf regime or the civilian government post on November 3, 2007.
All three later categories have been seriously affected by the court verdict. Cases of judges who opted to take oath under the PCO, have been referred to the Supreme Judicial Council. Some have opted to resign rather than face possible ignominy of being censured by the council. Those judges who were elevated to higher courts have been reverted to the previous courts. Freshly appointed judges have simply lost their jobs. In all 76 judges have been adversely affected.
This historic judgment is a good example of self accountability. The judiciary has been purged of judges who had supported the unconstitutional measure of November 3, 2007. As a result, it is now a homogenous group of upright persons who had risked, indeed lost their jobs, on a point of principle. This is sea change from the previous verdicts of the higher judiciary in Pakistan which tended to accommodate dictatorships basing their judgments on the infamous “law of necessity.” Having come of age, the higher judiciary in Pakistan has crossed the Rubicon this time and made us all proud.
The decision was praised by the government and opposition. But I believe the government had no other choice than accept the decision gracefully. Chief Justice Iftikhar Chaudhry’s popularity is even higher now. No wonder the common man looks up to the higher judiciary rather than the parliament or the presidency, for relief.
This important verdict has opened new vistas. It may have, for example, brought possible trial of General Pervez Musharraf, a step nearer. The decision that steps taken by General Musharraf on November 3, 2007 were unconstitutional (a fact admitted by him earlier) makes his trial a possibility. While Nawaz Sharif’s Muslim League, the main Opposition party is clamouring for it, the Peoples Party-led government is in a quandary.
The government cannot outright turn down such a demand as that would amount to supporting anti-democratic decisions of Musharraf. We all know that Benazir Bhutto returned to Pakistan in 2007 through a deal with the Musharraf regime. Under that deal both sides were supposed to cohabit. Even today, Pakistani missions abroad extend necessary protocol to the former president. In a smart move, Prime Minister Yousuf Raza Gilani has said on the floor of the National Assembly that he would move for Musharraf’s prosecution if the assembly passed a unanimous resolution to that affect. He knows that unanimity on this issue is well nigh impossible. The government is clearly running with the hare and hunting with the hounds. However, the case of handing over Pakistani citizens to another country without due process is a strong one. Similarly, subversion of constitution case against Musharraf appears more admissible after this judgment.
Then there is a question of international jurisdiction. Lord Nazir Ahmed, a British MP of Pakistani origin wants to file a case against him in British courts. The basis is human rights violations by Musharraf in handing over British nationals to a third country illegally.
Till the middle of the 20th century, the International Customary Law upheld the principle of immunity for the heads of state and government. No International forum, for example, invoked the case of genocide against Hitler. However, later in the 20th century, things started changing. Readers would recall the high profile cases of Manuel Noreiga, Pinochet, and Milosevic. Today, International Law does not give life long absolute immunity to the heads of state and government. During a possible request by Pakistan for Musharraf’s extradition, at some stage, Pinochet’s example could certainly be invoked.
Chaudhry Shujaat Hussein, leader of the Muslim League (Q), who supported Musharraf through thick and thin, says that Musharraf’s trial is not people’s concern. They are more interested in day to day economic problems and law and order issues. He said he would bring the National Reconciliation Ordinance (NRO) before the courts. However, that case has already been filed by the veteran People’s Party politician Dr Mubashir Hassan and retired bureaucrat Roedad Khan. This is another high profile case to be heard by the Supreme Court.
We are in the midst of judicial activism in Pakistan. The higher judiciary has the advantage of sitting on a high moral ground. It enjoys full support of the people. The landmark Supreme Court judgment may pave the way for other important cases in the near future.
(Javed Hafiz is Pakistan’s former ambassador to the Sultanate) |
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