A landmark judgment
Satureday, July 21,2007
AFTER weeks of speculation and suspense, the judgment is finally in. Under attack on every front and getting more rattled by the day, the government suffered what could be a crippling body blow on Friday when the Supreme Court unanimously restored Mr Iftikhar Mohammad Chaudhry to the office of Chief Justice of Pakistan, ruling that the presidential reference against him was illegal as were the CJ’s suspension and the decision to send him on forced leave. The appointment of an acting Chief Justice was also declared unconstitutional. Restoring the CJ with effect from March 9, the day he was made ‘non-functional’, the apex court further held that the Judges Compulsory Leave Order 1970 was ultra vires of the Constitution. The only point on which the bench was not in total agreement was the setting aside of the presidential reference, where a 10-3 majority prevailed. The hearing of the CJ’s petition lasted six weeks and the full implications of his vindication will become clearer with time. By publicly accepting the ruling, the government may try to spin the outcome to its advantage, stressing that it allowed justice to take its course. This does not, however, alter that fact that its actions on March 9 and in the days that followed represented a frontal assault on the independence of the judiciary. If the president and the prime minister are now in an accommodating mood, it is because they have no other option. As for the Chief Justice, he stands vindicated but it remains to be seen what role he can play in future cases involving the federal government. After his lengthy court battle and public rallies, can he be fair and just to those who tried to destroy him? Would a conflict of interest arise?
The president, for his part, stands on increasingly shaky ground. Ill-advised and possibly misled, he blundered badly when he ‘summoned’ the Chief Justice to the Army House and asked him to step down. Hubris probably played a part, as may have the track record of the higher judiciary in its past dealings with military rulers. In short, President Musharraf simply could not have foreseen the consequences of his actions on that fateful day. Confronted with a bevy of intelligence officials and a huge chargesheet, the Chief Justice was no doubt expected to acquiesce meekly and fade away. Instead he stood his ground, and with that one defiant gesture altered the balance of power in the country. Until then, the beneficiaries of the engineered democracy foisted on the country in 2002 had seemed secure in their derived authority, shrugging away scandals that would have rocked previous governments and caring little that they lacked legitimacy in the eyes of the people. The president-cum-COAS made all the decisions then and it was expected that the government that emerged after the next elections would, like the present one, be entirely of his own choosing. Cronies insisted that the president would be re-elected by the sitting assemblies, and his holding on to both offices was a distinct possibility. Some of that may still come to pass but much has changed since March 9 and nothing can be taken for granted any longer.
More than the government or the Chief Justice, the last six weeks served as an acid test for the judiciary itself. In the end it acquitted itself well, choosing not to go down the route taken in the past. A Supreme Court that sanctified Ayub Khan’s martial law in 1958 and legitimised Ziaul Haq’s usurpation two decades later has now set a historic example that could help thwart any future adventurism by military men. The question on everyone’s lips is: has the judiciary finally come of age?
http://www.dawn.com/2007/07/21/ed.htm