Gen Pervez Musharraf’s constitutional subversion, in the garb of the Proclamation of Emergency, on Nov 3, 2007 has finally been accorded its well-deserved epitaph of ‘usurpation’.
The Proclamation of Emergency, the Provisional Constitution Order (PCO) and other presidential orders and constitutional amendments promulgated by him have been declared unconstitutional and of no legal effect by the Supreme Court.
The decisions in the case of Tikka Muhammad Iqbal delivered by the judges, who had taken oath under the PCO in violation of the order passed on Nov 3, 2007, by a seven-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry, have also been declared void ab initio. These judgments had purported to confer legitimacy on actions which were inherently illegitimate and patently unconstitutional.
While examining the validity of actions taken during this period, the Supreme Court has acted with great caution and restraint. Its decision was informed by the desire to nullify only those actions/instruments which facilitated, protected or advanced the unconstitutional actions of Musharraf or were otherwise inherently unconstitutional. As against this, other executive actions taken and legislative enactments promulgated during that period in the normal course have been protected.
The underlying principle behind the judgment of the Supreme Court is that in a society which aspires to be governed by the rule of law, there is no room for constitutional subversion or deviation, however mighty or powerful the perpetrator may be. Unlike the past, the judiciary would not be instrumental in this venture. Instead it would resist any constitutional subversion and act firmly to protect the constitution and the rule of law.
While the effect of the judgment of the Supreme Court will have far-reaching consequences for the country, its immediate effect on the institution of the judiciary itself is immense. After declaring Musharraf’s usurpation to be unconstitutional and the judicial pronouncements conferring legitimacy on this usurpation void ab initio, the Supreme Court has taken to task the members of the judiciary who were instrumental in this illegitimate venture.
Justice Abdul Hameed Dogar, who had assumed the non-vacant office of the chief justice of Pakistan, has been declared to have done so unconstitutionally and this action is void ab initio. Appointments made to the superior judiciary in consultation with him as chief justice have also been declared unconstitutional unless subsequently confirmed by the constitutional chief justice.
The result is that such appointees revert to the positions they held prior to their vitiated appointments. Likewise the number of judges of the Supreme Court increased from 17 to 30 by the Finance Act, 2008 was also held illegal. The Islamabad High Court which could only be created through a valid constitutional amendment had to go as well.
It has been observed by the Supreme Court that the code of conduct prescribed for the judges of the superior judiciary under Article 209 of the constitution shall be amended to the effect that no judge shall offer any support in any manner to any unconstitutional functionary who acquires power otherwise than through the modes envisaged by the constitution. Violation of this clause would be deemed as misconduct by that judge under Article 209 of the Constitution.
Those judges of the Supreme Court and high courts who took fresh oath of office under the PCO, despite orders to the contrary by the seven-member bench of the Supreme Court mentioned earlier, shall be proceeded against under Article 209 of the constitution. As per the short order of the Supreme Court, it is observed that the secretary, law division, shall take steps in the matter accordingly. In this context it is not clear as to whether the amended code of conduct would be applied to those judges who took oath under the PCO on Nov 3, 2007. It may be argued by such judges that the amendment could not be given retrospective effect. If it has to be applied retrospectively then why should it not be applicable to those judges who took oath under the earlier PCO?
It is also unclear as to what actions are required to be taken by the law division in this context. This could include the filing of references. Complications may arise in this context as Article 209 of the constitution envisages full-fledged proceedings before the Supreme Judicial Council and the aggrieved judges are entitled to contest the proceedings.
The judgment of the Supreme Court is indeed a landmark judgment. It is a continuation of the process of the historic reversal of the role of the judiciary put in place on March 9, 2007. Though dictators have been declared as usurpers once they have gone, this is the first time that the judiciary led by a fearless chief justice defied the command of a dictator while in office. His defiance triggered the historic lawyers movement for the rule of law which culminated with his restoration and that of his brother judges. This judgment is a vindication of that struggle.
To save his illegitimate aspirations for re-election to the presidency, Gen Musharraf assaulted the judiciary and imposed martial law in the garb of emergency. Full of arrogance, he made a sweeping statement in front of the nation that those who had not taken oath under the PCO had gone. They were no longer judges.
But justice has ultimately prevailed. All those defiant and courageous judges whom he had removed and imprisoned are back with honour and dignity. The dictator is not only gone but appears to have absconded. In due course of time he too will be brought to justice by the long arm of the law. No one is above the law. This is the essence of the rule of law. This is the clear and unmistakable message of the judgment of the Supreme Court.