IFTIKHAR Chaudhry has finally been restored to his rightful position as Chief Justice of the Supreme Court from where he was illegally and unconstitutionally removed on Nov 3, 2007.

His restoration and those of other judges has come after an epic struggle ably led by lawyers and supported by millions of Pakistanis. Credit must also be given to the support rendered by various political parties including the PML-N, Jamaat-i-Islami and Tehrik-i-Insaaf.

This would not have been possible if Nawaz Sharif had not decided to come out and lead the procession in Lahore on March 15. Not for the first time in our history, the people of Pakistan defied heavy odds and forced the rulers to accept the popular verdict. The media, both print and electronic, also contributed to this victory. There is no denying the fact that it was one of Pakistan's finest moments.

However, since the restoration of Justice Iftikhar Chaudhry there has been a debate about the future role of the Supreme Court. Most people believe that for the first time in Pakistan's history our superior judiciary is fully independent, and hence the high expectations from Justice Iftikhar Chaudhry and other judges. The fight waged by lawyers, political activists, the media and ordinary Pakistanis will count for nothing if the status quo is maintained by the superior judiciary.

Several legal questions related to past actions, most important among them being the imposition of emergency on Nov 3, 2007, remain unresolved. President Musharraf in his capacity as chief of army staff imposed emergency rule and sacked some 60 judges of the superior judiciary including the Chief Justice of the Supreme Court. At the time this action was taken, a bench of the Supreme Court was reviewing a petition challenging the election of Gen Musharraf as the President of Pakistan while he was still in uniform. The final verdict was expected within days and it was believed that the court would disqualify his candidacy.

The irony is that till this day the Nov 3 action has not been annulled by our parliament. The Dogar court, as it was known, had validated it. But then the question is whether the 'Dogar court' was a valid court and whether its decision to validate the actions of Nov 3 was legal and constitutional?

With the return of genuine democracy, it was expected that the PPP-led government would bring the matter to parliament and render the imposition of emergency invalid. More than a year down the road, it is now clear that the administration under President Asif Zardari has no interest in doing so. By allowing Justice Dogar to complete his term in office, President Zardari made it clear that the Nov 3 action was valid and that Justice Dogar was the constitutionally appointed Chief Justice of Pakistan. A farewell reception for Justice Dogar further strengthened this perception.

If Justice Dogar was a valid chief justice, as claimed by President Zardari, then why didn't Justice Iftikhar Chaudhry take a fresh oath of office? In a way the appointment of Justice Iftikhar Chaudhry confirms that the Nov 3 action was illegal and unconstitutional. In that case, Justice Dogar should not have been allowed to complete his full term, even if that meant giving him just a few additional days. The imposition of emergency on Nov 3, 2007 is considered illegal and unconstitutional by most legal experts in Pakistan, and indeed by most law associations around the globe.

Strangely the man behind these illegal and unconstitutional actions remains free, enjoying great privileges as if great services have been rendered by him. Gen Musharraf himself acknowledged in a TV interview in Nov 2007 that his actions were illegal and unconstitutional. Therefore it is unfair if a final verdict is not given either by the Supreme Court or parliament, if for nothing else but to put the record in perspective.

A seven-member Supreme Court bench headed by Chief Justice Iftikhar Chaudhry had declared the imposition of emergency on Nov 3 invalid and had directed all government officials not to carry out the illegal orders of Gen Musharraf. Immediately thereafter Justice Chaudhry and other judges were physically removed from the premises of the Supreme Court of Pakistan and put under house arrest. In addition, several other judges of the four high courts were also dismissed and placed under house arrest.

The remaining judges were given a fresh oath of office under the Provisional Constitution Order (PCO). In addition to the above-mentioned illegal actions, amendments were made to the constitution by Gen Musharraf, again in his capacity as chief of army staff. These amendments made by an army general unfortunately remain part of our constitution as these have not been repealed by parliament. Dictators have taken similar liberties with the constitution before once in 1985 to indemnify the acts of Gen Zia through the 8th Amendment and later in 2002 through the 17th Amendment to protect Gen Musharraf's self-made changes in the constitution up to 2002.

The Supreme Court currently comprises different types of judges — judges who took oath under the PCO, judges who had refused to take oath on Nov 3 but were later reappointed after taking fresh oath, and then the judges who have been restored without a new oath. In between, several judges were appointed with the consent of Justice Dogar.In order to avoid legal and constitutional issues in the future, there is an urgent need to review the legality of the Nov 3 action and therefore the need for Gen Musharraf's trial. The country has paid a heavy price for the actions taken by Gen Musharraf on that fateful day and it took nearly 14 months of hard struggle to restore Justice Iftikhar Chaudhry and other judges.

Why then is the mastermind behind Nov 3 a free man? If no case is instituted against him, Pakistan will remain entangled in legal fights for several years. The trial of Gen Musharraf will not only resolve many legal complications but also serve as warning to future military adventurers.

The nation has supported Justice Iftikhar Chaudhry by making huge sacrifices and it is now the responsibility of parliament and the judiciary to pay back the nation by undoing the illegal and unconstitutional acts of Nov 3, 2007.

The writer is a former CFO of IBM Pakistan and a political analyst.

zubairmohammad@hotmail.com