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The 13-member Supreme Court headed by Justice Khalil-ur-Rehman Ramday announced the decision on July 20, after two months of daily deliberations. The ruling was celebrated not only by the legal community, but by the politicians and civil society, all of whom were overwhelmed by the decision of the Supreme Court.
It is difficult to say how long this nation will enjoy the independence of the judiciary as a result of this historical decision. Over the last 60 years, Pakistanis have witnessed the unprecedented support given by the judiciary to military dictators who have assumed power after overthrowing civilian governments and suspending the Constitution. The present decision is a milestone in the movement to restore judicial independence in Pakistan. Yet there are several barriers and hurdles to be overcome in attaining that final objective.
The entire exercise of suspending the chief justice was orchestrated by Musharraf in order to replace him with another judge more friendly to the present regime. This was considered necessary as the government was anticipating numerous challenges in the Supreme Court involving legal questions such as Musharraf continuing to hold the position of chief of staff of the army while also holding the office of president, and whether the present Parliament, whose tenure expires in September, is constitutionally competent to re-elect Musharraf as president for the next five years.
It is interesting to note that, like other constitutional officers including the president, prime minister, governor and chief secretary, every member of the armed forces is required to take an oath as per Article 242 of the Constitution of 1973. They must swear: "I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan, which embodies the will of people." However, history will testify that the Pakistan army has always acted contrary to this oath. Therefore, the actions that the army's intelligence agencies may take to combat the present attitude of the judiciary cannot be predicted.
The Supreme Court is likely to encounter difficulties while considering these constitutional issues in view of its own earlier decisions. Under the influence of the army it has legitimized the rule of Musharraf. For example, in the case of Qazi Hussain Ahmed, a nine-member Supreme Court (including Justice Iftikhar Chaudhry) legitimized the election of Musharraf, which was held in violation of the Constitution through a Referendum Order in 2003. The Supreme Court disposed of several petitions, refusing to deal with many important questions on the grounds that they were purely academic, hypothetical and prospective in nature and could not be determined at that juncture.
Another difficulty the court will face is Clause (d) of Article 63, which disqualifies anyone who "holds an office of profit in the services of Pakistan" from becoming a member of Parliament. This provision was nullified by a proviso added to the 17th Amendment whereby paragraph (d) of Clause 1 of Article 63 was made inoperative till Dec. 31, 2004. In November, 2004 Parliament enacted an unconstitutional law known as the President To Hold Another Office Act, which permitted the incumbent president to hold the office of army chief of staff. This violated Article 63(1)(d) and Article 41(7)(b) of the Constitution.
The legislative history of Pakistan is full of such precedents where laws were made for the benefit, or to the disadvantage, of one man.
These are the big questions that the judiciary in Pakistan must now address. It has to overcome the previous mandate given to Musharraf, legitimizing his one-man rule. It will be a true test for the Supreme Court to meet the expectations of this nation and to prove that it is truly independent, not only in respect of restoring its chief to office, but also in other constitutional matters. It will have to maintain its speed and stay on track in a fast- changing scenario.
Musharraf is realigning his political forces after his recent drop in popularity. The government's response to this new trend in the judiciary may be judged by its appointment of new Attorney General Malik Qayyum -- who was forced to resign as judge of the Lahore High Court in 2002 over a tape scandal and now is famous for his intrigues. The Bar Association has already opposed his appointment as attorney general, and should remain vigilant to thwart any attempt to create division between the bench and the bar.
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(Rasheed A. Razvi is a lawyer who served as a judge in the Sindh High Court until 2000, when he declined to renew his oath. He has served as president of the Karachi Bar Association and vice chairman of the Sindh Bar Council. He is a member of the Executive Committee of the Pakistan Bar Council and was elected its vice chairman in 2002. ©Copyright Rasheed A. Razvi.)
