LAHORE: Both Pervez Musharraf and Asif Zardari might be having sleepless nights nowadays given the fact that both had apparently given unannounced indemnity to each other in two phases - firstly by Musharraf before the elections and secondly by Zardari after the elections to cover up each others’ wrong doings. As Musharraf had introduced a presidential ordinance before the 2008 elections to help Zardari get rid of the corruption charges pending against him without facing a court trial, the latter had returned the favour by rejecting Nawaz Sharif’s demand to proceed against Musharraf on treason charges under Article 6 of the Constitution for having staged a military coup in 1999 against an elected government.
Well informed circles close to Justice Chaudhry say once he resumes his duties as Chief Justice on March 21 after the retirement of Justice Abdul Hameed Dogar, he is looking forward to carry on from where he left off before being sent home on November 3, 2007. Although many of General Musharraf’s post-November 3 controversial actions had been validated and reaffirmed by his hand picked apex court, some key issues like the proclamation of emergency through a Provisional Constitutional Order (PCO) and petitions seeking annulment of the National Reconciliation Ordinance (NRO) are likely to be taken up by Justice Chaudhry once again.
The restoration of the deposed superior court judges, including Chief Justice Iftikhar Chaudhry, may not be the end of the 24-month old controversy which was kicked off by General Pervez Musharraf on November 3, 2007 with his staging yet another blatant coup - this time against the superior judiciary - to purge it of the defiant judges who he feared were to declare him ineligible to run for the presidency for the second time while retaining his uniform as the COAS.
To begin with, Justice Chaudhry’s close circles say, there is every possibility of him going for an immediate review of the three verdicts passed by Justice Dogar-led apex court on November 4, 2007, November 6, 2007 and February 14, 2008, validating Musharraf’s November 3 proclamation of emergency with a view to knock these out. The review of these three judgments could be carried out under Article 184 (3) of the Constitution, which pertains to the original jurisdiction of the Supreme Court and states: “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article”.
Justice Iftikhar Chaudhry’s close circles reminded that three months after being deposed by the Musharraf regime for the second time in five months, a defiant CJ had maintained in an open letter [dated January 30, 2008] addressed to the world leaders: “I am the constitutional chief justice of Pakistan and have already ruled that the November 3, 2007 actions by Musharraf were unconstitutional”. He further wrote: “There can be no democracy without an independent judiciary, and there can be no independent judge in Pakistan until the action of November 3, 2007 is reversed. Whatever the will of some desperate men the struggle of the valiant lawyers and civil society of Pakistan will bear fruit. They are not giving up”.
Seven months later, Justice Chaudhry’s close circles recalled, the CJ had repeated his stance [on November 3, 2008] in his speech to a convention organized by the Rawalpindi High Court Bar Association by saying: “The November 3 verdict of a 7-member Supreme Court bench declaring General Musharraf’s November 3, 2007 actions unconstitutional and illegal still holds”. He had then described the incumbent Chief Justice Abdul Hameed Dogar as a self-styled adjudicator who had validated Musharraf’s November 3 proclamation of emergency as well as a Provisional Constitutional Order.
Musharraf’s action made the continued functioning of the superior courts subject to the judges taking a fresh oath under the PCO. However, in an unprecedented move in the history of Pakistan, a majority of the judges declined to take oath under the PCO. They were consequently ousted and General Musharraf achieved his objective of ridding himself of non-compliant judges. The move came only 12 days before the expiry of Musharraf’s first tenure as the president and while an 11-judge bench of the Supreme Court was in a weekend recess in its hearing of challenges to his election for another five-year presidential term, on grounds of his army office.
According to Justice Chaudhry’s close circles, the most vital and equally tricky issue to confront the CJ after his reinstatement would be the November 3 action. As a matter of fact, a seven-member bench headed by Justice Chaudhry had rejected the proclamation of emergency and the issuance of the PCO on the same evening - November 3, 2007, before being sent home. The court order had further restrained the Chief of Army Staff, corps commanders, staff officers and civil and military officers from acting under the decree issued by Musharraf. The judges restrained Musharraf from taking actions contrary to the independence of the judiciary and asked the judges of the Supreme Court and the high courts, including their chief justices, not to take an oath under the PCO or follow any other extra-constitutional step.
Headed by CJ Chaudhry, the bench that handed down the unanimous two-page order consisted of Justice Rana Bhagwandas, Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Nasirul Mulk, Justice Raja Fayyaz and Justice Ghulam Rabbani. Anticipating something unusual, the seven judges had decided to stay in the Supreme Court building till late afternoon on a day when the court never assembles. It otherwise would not have been possible for them to pass the order. “We feel the government has no ground or reason to take extra-constitutional steps, particularly for the reasons being published in newspapers that a high-profile case is pending and is not likely to be decided in government’s favour, although the matter is still pending,” the order said. The order had been issued on an application of Supreme Court Bar Association president Barrister Aitzaz Ahsan.
The very next day, on November 04, 2007, the new Chief Justice Abdul Hameed Dogar over-ruled the order issued by Justice Chaudhry, annulling the emergency imposed by Musharraf despite the fact that more than seven judges of the Supreme Court were required to reverse the restraining order. Dogar, who was sworn in by Musharraf as the Chief Justice of the Supreme Court shortly after the imposition of emergency, said the verdict of Chaudhry and eight other judges of the apex court was defunct and null and void. Interestingly, a statement issued by the Supreme Court on the night of November 3, 2007 said the decision against the emergency by Justice Chaudhry and seven other judges was “not given by a valid court”.
However, it was the attorney general of Pakistan Malik Mohammad Qayyum who had advised the presidency that the decision of the deposed chief justice should be struck down by the full court so that it is not taken up in future. Subsequently, on November 6, 2007, hardly an hour after Musharraf appointed five new judges of the Supreme Court, an eight-member full court declared as null and void the November 3, 2007 decision of the seven-member apex court bench. Chief Justice Dogar ruled that the verdict by the seven-member bench came after the declaration of emergency when they had ceased as judges of the superior courts.
The petitioner in the case was none other than Attorney General Malik Qayyum.
On February 14, 2008, three and a half months later, the Supreme Court headed by Justice Dogar, while deciding two separate constitutional petitions No 87-88 of 2007, challenging the Proclamation of Emergency on 3rd November 2007, the Provincial Constitution Order No 1 of 2007 and the Oath of Office (Judges) Order, 2007, had once again validated all the extra-constitutional steps taken by Army Chief cum President General Pervez Musharraf on November 3, 2007.
Interestingly, the verdict stated that unfortunately some members of the superior judiciary by way of judicial activism transgressed the constitutional limits and ignored the well-entrenched principle of judicial restraint. In the process, the verdict said, these judges rendered the state machinery, particularly legislative and executive branches of the government, paralyzed and nugatory. The apex court verdict further stated that all acts and actions taken for the orderly running of the state and for the advancement and good of the people are also validated.
Musharraf’s action was validated by the apex court despite the fact that in an interview to the BBC on November 17, 2007, he himself had admitted that his action was illegal. Taking strong exception to the growing criticism about him in the West regarding his decision to impose emergency, he demanded an explanation for his portrayal in the western media in recent months, saying, “Did I go mad? Or suddenly, my personality changed? Am I Dr. Jekyll and Mr. Hyde? Have I done anything constitutionally illegal? Yes, I did it on November 3 [referring to imposition of the emergency rule]. But did I do it before? Not once.” However, whatever Musharraf says, Justice Chaudhry’s close circles insist, the first issue to be taken up by him for review under Article 184(3) of the 1973 Constitution would be the validity of the November 3, 2007 action by Musharraf.