Jul 31, 2009
Musharraf's emergency illegal
The Supreme Court on Friday declared unconstitutional the steps taken by former military ruler Gen (r) Pervez Musharraf on November 3, 2007 including the imposition of emergency, promulgation of Provisional Constitution Order (PCO) and sacking of as many as 61 judges of the higher judiciary.Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry, heading the 14-member bench that heard the judges’ case, announced the unanimous verdict to this effect in a court full of lawyers, journalists, and political and civil society activists.The apex court also declared unconstitutional the appointment of Justice Abdul Hameed Dogar as the Chief Justice of Pakistan, thus nullifying all the appointments made in the higher judiciary with his consultation. The PCO judges were found guilty of misconduct, were suspended and were thereby referred to the Supreme Judicial Council. The total number of Judges of the Supreme Court, after yesterday’s verdict, now stands at 16 plus the Chief Justice.The present democratic dispensation, however, is protected in the judgment and the general elections of February 18, 2008 and the government formed as a result of the elections has been declared constitutional.The larger bench invalidated the Supreme Court judgment in Tikka Muhammad Iqbal case, which had validated the imposition of emergency and promulgation of PCO by Gen (r) Pervez Musharraf, thus invalidating all the steps taken by former dictator during the suspension of the 1973 Constitution during November 3, 2007 and December 15, 2007.The SC judgment in Tikka Iqbal case had also declared the ordinances promulgated by Gen (Retd) Pervez Musharraf or by governors of the provinces during or before the November 3, 2007 emergency as valid laws, hence not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Article 89 or 128 of the Constitution.However, the larger bench’s judgment invalidated ordinances relating to the higher judiciary promulgated during the above-mentioned period including the Constitution (Amendment) Order, 2007, the Constitution (Second Amendment) Order, 2007, the Islamabad High Court (Establishment) Order 2007, the High Court Judges (Pensionary Benefits) Order, 2007 and the Supreme Court Judges (Pensionary Benefits) Order, 2007.The remaining ordinances were, however, referred to the Parliament, stating that the period of 120 days and 90 days mentioned respectively in the Article 89 and Article 128 of the Constitution, would be deemed to commence from Friday, July 31, and directed that these ordinances be placed before the Parliament or the respective Provincial Assemblies in accordance with law.The verdict held that all the judges deposed on November 3, 2007 should be deemed to have never ceased to be judges. The verdict also declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and therefore the appointment of Justice Abdul Hameed Dogar as Chief Justice of Pakistan was unconstitutional and invalid. It was, however, declared that the unconstitutional appointment of Justice Abdul Hameed Dogar should not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office.