An eight-member Supreme Court bench headed by Abdul Hameed Dogar on November 6 overruled a seven-judge decision that had struck down the Provisional Constitutional Order (PCO) which suspended the constitution of Pakistan when General Pervez Musharaff declared a state of emergency in Pakistan on November 3.
Consider the fantastic irony. A court with no constitutional authority–one appointed by the army chief of staff in a constitutional vacuum–was made to rule that a judgment by a court that was appointed under the constitution was “without legal authority”.
Under the constitution of Pakistan, judges of the superior courts are appointed by the president on the recommendations of the Supreme Judicial Council (SJC), not by any army officer. And even the president cannot remove, suspend or terminate the services of a judge with out the recommendation of the SJC. This was underlined in the decision of 20 July 2007 when the earlier suspension of Chief Justice Iftekhar Choudhry was found to have been unconstitutional and he was reappointed to his post, to the jubilation of millions around the country who had actively supported his struggle for justice against the Musharaff regime. Chief Justice Choudhry has now been unceremoniously and illegitimately pushed from his seat for the second time in one year and has again been locked into his house, along with 45 other senior judges who have rightly refused to cooperate with the takeover.
After declaring the emergency on Sunday, Musharaff was quoted as saying that, the “government system in my view, is in semi-paralysis as all government functionaries are insulted by courts and law enforcing agencies punished by the judiciary, demoralising them”. He blamed “judicial activism” for his problems and claimed that it was one reason for the declaration.
But why did the bench headed by Chief Justice Choudhry find that the PCO was outside of the law? Not because he is intent upon paralysing or demoralising the government, as absurdly claimed by General Musharaff, but because the PCO was in fact outside the law. There is no provision for a PCO when the constitution is functioning as normal and parliament is sitting. And there is no provision in law for the suspending of fundamental rights through ultra-constitutional means under any circumstances. Nor can the army chief in any case appoint his own judges to the higher courts; and nor can the president alone, who must rely upon the recommendations of the SJC. But anyhow, this is what Musharaff has done, which is why the Supreme Court ruled against his actions.
Courts are not supposed to be . That the general presumes that he can declare an emergency because the judiciary is not doing what he wants it to do speaks to how far removed he is from any notions of democracy and the rule of law. The very purpose of the courts is to scrutinise and sanction the behaviour of other parts of government, and put a break on actions that may infringe upon human rights or otherwise be contrary to the established rules of society. But persons who have become used to the idea that they can make the rules, not comply with them, are bound to feel chagrin when they come face to face with those who are duty-bound to show them otherwise–as Musharaff did in the aftermath of the massive protests that brought the chief justice (the real chief justice) back to his post earlier this year.
The Asian Human Rights Commission strongly applauds the position taken by Chief Justice Iftekhar Choudhry and other judges who have refused to comply with the emergency order and who have, even within the confines of their homes, again taken an historic stand for which they make their country proud. It condemns the so-called Supreme Court decision of November 6 as nothing more than the ruling of a kangaroo court: farce and nonsense. It calls upon the lawyers, journalists and people of Pakistan to resume the historic and celebrated struggle against injustice and dictatorship that they carried on successfully earlier this year. And finally, it calls upon all persons and governments abroad, especially Pakistan’s would-be friends and allies, at last to see General Pervez Musharaff for what he really is: not a nascent democrat who might one day remove his uniform and contest an election with fairness and integrity, but an unrepentant and irredeemable autocrat who knows only the language of force.
