ISLAMABAD, July 20: The Supreme Court ruling on Friday reinstating its chief justice has come as triumph of a judicial defiance that could open floodgates for more legal challenges to arbitrary actions and even cloud President Pervez Musharraf’s political ambitions.
The 10-paragraph short order, which also threw out the controversial presidential charge-sheet against Chief Justice Iftikhar Mohammad Chaudhry, marks the first time in Pakistan’s 60-year life that the superior judiciary has defied a military ruler in sharp departure from a history of acquiescence.
Legal sources said Friday’s judgement by a 13-judge bench at the climax of more than four months of a judicial crisis that shook the country could prove to be the beginning of a process for the judiciary to acquire its rightful place as a potent third pillar of the state, beside what has been a predominant executive and an often rubber-stamp legislature.
In the 134 days since Justice Chaudhry says he said no to demands for his resignation at a meeting with President Musharraf on March 9 and preferred to contest the reference, the judiciary has come a long way from a position of public distrust to one of respect.
The recent years, particularly after another Supreme Court bench upheld Gen Musharraf’s Oct 12, 1999 coup and even gave unsolicited powers to amend the Constitution, had made politicians and bar associations reluctant to approach the high courts or the Supreme Court to seek any constitutional redress.
It will no longer be so after Friday’s emphatic ruling that quashed all actions taken against the chief justice — his suspension, sending him on forced leave and the reference accusing him of misconduct — contrary to speculations that the court could take a middle path.
The new situation will be an incentive to political parties, lawyers and the public to approach the superior courts with more confidence, the legal sources said.
The immediate — and most speculated about — threat from a rejuvenated judiciary could be to President Musharraf’s plans to get himself elected for another term from the present assemblies while still being in uniform as the Chief of the Army Staff, the sources said.
The Constitution allows only a civilian Muslim qualified to be a parliament member to be elected president for a five-year term by an electoral college of the two houses of parliament and four provincial assemblies.
But Gen Musharraf, who continues as army chief since 1998 against the usual tenure of only three years, had won a right to remain in uniform until December 31, 2007 through a controversial constitutional amendment he managed to get through parliament with the help of religious parties forming the Muttahida Majlis-i-Amal (MMA).
But now he says he will seek an assured re-election without doffing his uniform from the present assemblies before they run out their five-year terms in mid-November.
Some of his top political allies and government ministers insist the president can retain his job as army chief even beyond December. But their interpretation of the existing constitutional and legal provisions is disputed by opposition parties, which have vowed to block the president’s plans by political actions such as resignations from the assemblies to deprive the electoral college of more than a third of its members and legal means such as going to court on the plea that he cannot hold two offices at the same time and will not have completed the mandatory two years without a government job before seeking the election.
While a recent conference of opposition parties held in London decided on resigning from the assemblies as one of the options, legal challenges before courts must also come within the next couple of months before the presidential election becomes due between Sept 15 and Oct 15.
Political sources said at least the People’s Party Parliamentarians (PPP) and the Pakistan Muslim League-Nawaz (PML-N) would also go to court if the government tried to block the planned return home of their exiled leaders Benazir Bhutto and Nawaz Sharif respectively before the next general elections, which must be held after the expiration of the present assemblies in mid-November.
Challenges could be posed also to changes in electoral laws decreed by the president before the October 2002 elections — later endorsed by the controversial Seventeenth (constitutional) Amendment — to debar Ms Bhutto and Mr Sharif from being elected prime minister on the ground that both had already held the office twice, although their five-year terms were cut short by premature removals.
But it would be keenly watched whether Justice Iftikhar would prefer to head any Supreme Court bench to hear petitions directly involving President Musharraf or leave it to other judges.
Some of his top lawyers in his challenge to the presidential reference, including Aitzaz Ahsan, Munir A. Malik and Aziz Ahmad Kurd, have said they would no more appear before Justice Chaudhry in any case to avoid being accused of being favoured by him in the discharge of justice.
Other issues to be agitated before the court with more vigour could include the so-called “disappearances” of political activists — whose cognisance by Justice Iftikhar through his suo motu notices is generally believed to have been one of the causes of the establishment’s ire against him — human rights violations in general and the role of intelligence agencies that also figured in the preparation of the reference against the chief justice.
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