A new provisional constitutional order (PCO) has been issued. Basically, the constitution of 1973 has been put in abeyance; this order will give extra powers to the President of Pakistan. The main purpose of the emergency seems to be a measure to stop a commotion that could be created should the large 11-member bench of the Supreme Court ruled, during the course of next week, that Musharraf was not eligible as a candidate at the presidential election, which he had won, but the formal notification had yet to be issued by the Election Commission after the decision on his eligibility by the Supreme Court. His opposing candidate made the objection that as the Chief of Army Staff, he is not eligible to contest the presidential elections, not withstanding the fact that 17th Amendment of the Constitution allows him to do so. The declared emergency has been rejected by a 7-member Supreme Court bench which took suo motto action on the imposition of the PCO.
The PCO contains the following..
”Proclamation of Emergency declared by Chief of the Army Staff General Pervez Musharraf on Saturday:
“WHEREAS there is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;
WHEREAS there has also been a spate of attacks on State infrastructure and on law enforcement agencies;
WHEREAS some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism thereby weakening the Government and the nation’s resolve and diluting the efficacy of its actions to control this menace;
WHEREAS there has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth in particular;
WHEREAS constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists;
WHEREAS some hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued;
WHEREAS some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions;
WHEREAS the Government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honourable Judges confine the scope of their activity to the judicial function and not assume charge of administration;
WHEREAS an important Constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and non est by a recent order and judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability;
WHEREAS the humiliating treatment meted to government officials by some members of the judiciary on a routine basis during court proceedings has demoralized the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction;”
Soon after the imposition of the emergency, the 7-member court issued a statement asking that the Prime Minister, the Chief of Army Staff and all the co-commanders of the army should not heed the provisional constitutional order.
The order of an already dismissed Chief Justice reads as follows..
The seven-member bench of the Supreme Court refused the imposition of Provisional Constitutional Order (PCO) by giving an emergency verdict.
The text of the SC verdict is as follows:
This application was filed in court on 2nd Nov 2007 praying for respondent government may change composition of bench by adopting extra constitutional measures which could mean either by placing marshal law or be in PCO or by imposing emergency. Application could not be taken up as it was not numbered however now it has been marked to bench in the mean time the electronic and print media news appeared that the PCO is common gated to enable government to administer fresh oath to the chief justice as well as the judges of the supreme court to that favorable judges could be appointed. Be that as it may. It feel that govt has no ground/ reason to take an extra constitutional steps particularly for the reasons being published in the newspapers that high profile cases the cases pending and is not likely to be decided in favor of government although matter still pending therefore special bench has been constituted and on considering passing situation in news which have published in news papers we direct as follows.
1. Government of Pakistan that is president and prime minister of Pakistan are restraint from undertaking any such action which is contrary to independence of judiciary.
2. No judge of the supreme court or the high courts including chief justices shall take oath under PCO or any other extra constitutional steps.
Chief of army staff, core commanders , staff officers and all concerned of the civil and military authorities are hereby restraint from acting on PCO which has been issued or from administrating fresh oath to chief justice of Pakistan or judges of supreme court and chief justices or judges of the provincial high courts. There also restraint to under take any such action which is contrary to independence of judiciary. Any further appointment of the chief justice of Pakistan and the judges of supreme court and chief justices of high courts and judges of provincial high courts under new developments shall be un law full and without any jurisdiction. Put up before full court on 5th November 2007.
Islamabad 03.11.2007
This development of making PCO paralysed by a dismissed Chief Justice does not seem to be holding much water as the army and executive of the country seem to be fully behind the President and have disregarded this decision. The Chief Justice was dismissed with the notification of the PCO. Emergency was a natural outcome of a continued tussle between the executive and judiciary of the country. There were three very serious cases by the Supreme Court which hurt President Musharraf: one was about his eligibility as a presidential candidate; secondly, the contempt of court decision for deporting Nawaz Sharif back to Jeddah, for which it is rumoured that the Supreme Court wanted to implicate the highest authority of the State as the one to be held in contempt of the court’s ruling to allow Sharif back without any hurdle; technically for such a contempt of court, the President could have been imprisoned for 15 days. The third case being followed by the Supreme Court judges was about the missing persons, as intelligence agencies of the country have picked up members of the terrorist and jihadist organizations under emergency rule.
It apparently now seems the decision will hold, because the biggest power-broker in Pakistan is its Pakistani army that seems to be fully behind Musharraf. If the people on the street do not show revulsion and do not come out on the streets, like they did in the case of the dismissal of the first judge, Chaudhry Iftikhar, then this provisional constitutional order may stack up together and lead to an election in the next 120 days. The PCO will be presented to the Parliament on the 6th of November and will most probably be endorsed by a two-thirds majority; this two-thirds majority would not have been possible had the opposition not resigned from the National Assembly. So far, unlike the PCO under Zia-ul-Haque, and that under Musharraf when he removed Nawaz Sharif and his assembly, this is the first time that the Prime Minister will continue, the chief ministers will continue, as will the provincial assemblies and the national assembly and the senate. Extra constitutional measures can only become constitutional measures if the Parliament rubberstamps them. And most probably, in the absence of the opposition in the national assembly, Musharraf will most likely be able to obtain the two-thirds majority. Benazir Bhutto will most likely emerge as one of the key opponents of this Emergency rule, but in her heart of hearts, she is equally more than satisfied to see the back of the Chief Justice, Chaudhry Iftikhar.
It is a tragedy for Pakistan which could have easily been avoided if judicial activism would not have shown an eager desire to imprison the President. The judiciary has a moral authority, but its decisions are implemented by the executives. Musharraf was like a cornered cat. What can be seen is that he has been able to dismiss the Chief Justice, got a hold of new judges who will take an oath owing new allegiance to a new PCO and then in all likelihood, the dust will settle soon.
The Chief Justice of the Supreme Court, Chaudhry Iftikhar, must be very upset by the betrayal of his brother judges like Dogar, Buter, Khokar who will take the oath under the PCO, but he will never forget that he himself became the youngest Chief Justice after taking an oath of a similar nature when Musharraf had removed Nawaz Sharif. In the power game, one should not forget the point of return. At the end of the day, in a third world like Pakistan, there is a severe lack of sense of how far an advantage can be pushed. It is a bad day for the country. Judicial activism should not have been pushed to the level of confrontation. In a war between moral authority and toting-guns, the gun temporarily wins. This could have been easily avoided by a middle ground. Musharraf had announced that 15th November he would doff the uniform; he had announced a new present interim setup to oversee the elections in the next 90 days; and also announced his readiness to take a backseat and let the third phase of his democracy under his chosen Benazir Bhutto may continue forward.
Probably, this PCO will settle the issues of his presidency; the two-thirds majority of the parliament will pass the PCO, elections will be held, and a new government will take over. Like the thorny commotion-ridden history of Pakistan in the last sixty years, this will become a footnote. But a little bit of sensibility and give-and-take between the President and the Chief Justice could have avoided this sad outcome. It is high time the power of the gun is muted in Pakistan by reason and logic and not confrontation.
iqbal.latif@gmail.com