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Decade Passed To Musharraf’s Unconstitutional Emergency

Web Desk (November 3, 2017): A decade has passed since the unconstitutional imposition of emergency by the-then president and army chief General (retd) Pervez Musharraf.

On November 3, 2007, Musharraf suspended the Constitution, had 60 judges arrested for not taking a new oath under the Provisional Constitutional Order (PCO), and imposed a ban on news channels and political gatherings in the country.

In reaction to his measures, lawyers, political activists and members of the civil society all over the country rose up and were regularly seen on streets protesting his authoritarian mode of governance.

After imposing the emergency, Musharraf had said in a midnight television address that he decided to act in response to a rise in extremism and what he called the paralysis of government by judicial interference.“I fear that if timely action is not taken, then God forbid there is a threat to Pakistan’s sovereignty,” he said, adding that, “I cannot allow this country to commit suicide.”

In the capital Islamabad, armoured personnel carriers and military trucks patrolled the streets while roadblocks with metal barriers were set up on the main thoroughfares.

Supreme Court Chief Justice Iftikhar Chaudhry, whose earlier suspension in March marked the beginning of a slide in Musharraf’s popularity, was sacked.

Chaudhry was escorted home by police from the Supreme Court where he and other judges had refused to endorse the emergency.The text of emergency proclamation gave several reasons for that action, the most important being “increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular.” Some judges, the proclamation maintained, by “overstepping the limits of judicial authority have taken over the executive and legislative functions.”

Hence, “a situation has thus arisen where the government of the country cannot be carried on in accordance with the constitution and as the constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures.”

The `emergent and extraordinary measures` which the COAS took to “correct” the situation were to hold the constitution in abeyance and enforce a provisional constitution order (PCO). The most important consequence of the proclamation of emergency and suspension of the constitution was that judges of the Supreme Court and high courts who were not invited to take oath, or who chose not to do so, under the PCO ceased to hold office. Those deposed members of the judiciary included the chief justice of Pakistan and some sixty other members of the superior judiciary.At present, Musharraf faces a high treason case against his 2007 actions, which was initiated during the tenure of Pakistan Muslim League-Nawaz leader Nawaz Sharif’s premiership.

The special court indicted him in 2014. However, in March 2016, the former chief of army staff left the country on grounds of medical treatment.

Musharraf is also facing a separate case in an anti-terrorism court, known as the judges’ detention case, based on an FIR against the retired general registered in August 2009.

The former army chief is accused of detaining over 60 judges, including chief justice Chaudhry, after the proclamation of a state of emergency in the country.

The emergency was imposed and the judges were suspended at a time when the Supreme Court, under Chief Justice Chaudhry, was expected to rule on the legal status of the presidential election in which Musharraf was re-elected a month earlier.Later, the Supreme Court, in its verdict on July 31, 2009, declared the emergency ‘unconstitutional’ and de-notified the judges who took oath under the PCO.

The suspension or subversion of the constitution was nothing new to Pakistan. Previously, Mr Musharraf himself (1999), Ziaul Haq (1977), Yahya Khan (1969) and Ayub-Iskandar Mirza (1957) had subverted the basic law of the land.

However, the November 3 suspension of the constitution was different in two respects In the first place, for the first time judicial activism was cited as a reason (in fact the major reason) for an extra-constitutional step. In the second place, making a complete break with the past, the proclamation was immediately set aside by the apex court.

However, that landmark order could not be implemented. Later, a newly constituted apex court upheld the proclamation of emergency and removal of the judges invoking yet again the doctrine of necessity and the principle of past and closed transactions.There are two ways of looking at the 2007 proclamation of emergency. One, it was made at a time when the Supreme Court was hearing a petition challenging the eligibility of the President, who was also COAS, for re-election.

This single factor accounts for the strong language used against the judiciary in the text of the proclamation. Musharraf`s five-year term as president was due to expire in November 2007. Apprehensive that the Supreme Court, headed by Chief Justice Iftikhar Muhammad Chaudhry, was showing some independence, may declare him ineligible for re-election, the president suspended the chief justice and filed a reference against him in the Supreme Judicial Council.

However, the action against the CJP prompted unprecedented reaction from the bar and civil society and culminated in the reinstatement of the CJP by the apex court.

The reinstatement of the CJP, however, did not settle the question of Musharraf`s eligibility. When Musharraf declared his intention of getting re-elected from the existing assemblies, his candidature was challenged in the Supreme Court. Suspecting that the apex court may reject his candidature, Musharraf subverted the constitution.However, if the issue was only Musharraf versus the judiciary, all the deposed judges would have been restored after the departure of the retired general. This has not happened. Though some forty-six out of the 60 judges are back to the bench, they have been re-appointed and not reinstated. Importantly, Justice Iftikhar Chaudhry continues to remain deposed. This means there was more to the proclamation of emergency — relations between the executive and the judiciary.

Throughout the country`s history, the executive has sought to control the judiciary and divest it of its independence — and has done so with success. The courts have been made to put their seal on the most controversial executive actions including abrogation or suspension of the constitution. The judges who do not succumb to pressure from the executive are penalised one way or other.In 1954, the apex court (at that time called the Federal Court) reversed the order of the Chief Court of Sindh whereby the latter had invalidated the dismissal of the first Constituent Assembly by the governor-general. Again, in 1958, the Supreme Court when called upon to adjudicate on the legitimacy of the martial law regime of General Ayub held that a successful revolution or coup d`etat was an internationally recognised method of changing a constitution.

That decision was reversed by the apex court in Asma Jilani versus Government of the Punjab case, declaring that by itself a military coup or a legal regime put in place by a military ruler was not legitimate. Rather they acquired legitimacy only when courts recognised them as de jure.The landmark judgment created the hope that in future the judiciary would not put its seal on unconstitutional acts of the executive. However, contrary to that, in Begum Nusrat Bhutto versus Chief of Army Staff and Federation of Pakistan case, the apex court again declared a military coup, this time by Gen Ziaul Haq, legitimate on the basis of state necessity and welfare of the people.

The Supreme Court decision in judges appointment case (March 1996), represented a valiant attempt by the judiciary to assert its independence and free itself from the shackles of the executive. The decision ended the executive`s discretion in the appointment of the members of the superior judiciary. That is why the then PPP government had sharply criticised it.Row between the judiciary and the executive during the second Nawaz Sharif government (1997-99) is an ugly chapter in the constitutional history of Pakistan. The crisis erupted when the government showed reluctance to elevate five judges to the Supreme Court on the recommendations of the Chief Justice of Pakistan.

The prime minister was summoned to the Supreme Court on the charge of contempt of court. As contempt of court proceedings against him were in progress, a mob ostensibly at the behest of the government attacked the court and the judges had to run for their life.The 1999 coup which brought Mr Pervez Musharraf at the helm was also indemnified by the judiciary, again under the doctrine of necessity. One of the judges who sat on the Supreme Court bench which validated the coup was Justice Iftikhar Muhammad Chaudhry, who was later elevated to the country`s highest judicial office. However, the same Justice Iftikhar Chaudhry, when he showed some independence, was made a target of the executive`s whims.

At present, the campaign for the reinstatement of the judges seems to have fizzled out. However, this does not mean that the systemic issues involved in the matter have also lost their significance. The issue of the removal and reinstatement of the judges is closely connected with the principle of the sanctity of the constitution.

The declaration of emergency, suspension of the constitution, proclamation of the PCO and removal of the members of superior judiciary were unconstitutional acts, simply because they were in conflict with the relevant constitutional provisions.

To begin with, the constitution does not authorise the COAS to clamp emergency; that power is vested only in the president (on the advice of the prime minister). And even the proclamation of emergency cannot hold the constitution in abeyance.Secondly, no one including parliament can suspend the constitution. Thirdly, since constitution cannot be suspended, a provisional constitutional arrangement is also unconstitutional. Finally, superior court judges can be removed only by president on the recommendations of the Supreme Judicial Council (SCJ) in accordance with Article 209 of the constitution.

Hence, the removal of the judges being unconstitutional, no one can make them constitutional. There was thus never the need for a constitutional amendment to reinstate them and an executive order should have been enough to make them functional again.

Let`s admit for the sake of argument that parliament can validate unconstitutional acts as it did on previous occasions. But even in this case, the proclamation of emergency and PCO can be validated only if approved by parliament by a two-third majority.They shall remain invalid as long as parliament does not validate them. Hence, even on the strength of this argument, reinstatement of the judges did not need parliament`s approval. In fact, parliament`s approval (by a two-third majority) is needed if the purpose is not to reinstate them.

Those who aver that a constitutional amendment was needed to reinstate the members of the superior judiciary are putting the cart before the horse a constitutional amendment is needed to validate unconstitutional actions including amendments to the constitution made in an unconstitutional manner, but it will be absurd to infer from this that a constitutional amendment is also needed not to validate such acts. Unconstitutional acts unless validated by parliament will remain unconstitutional.