Mehroz Sadruddin October 7, 2007

Tags: elections , supreme court , Pakistan , president , judiciary

The Supreme Court’s ill-advised verdict

href="/tag/Pakistan">Pakistan, Justice Iftikhar Mohammed Chaudhry, then the case of the return of Mian Nawaz Sharif and now the petitions of opposition leaders against the holding of two public offices by President General Pervez Musharraf.

This time round however, the Supreme Court has most evidently, fallen acutely short of fulfilling the wishes of the people of Pakistan, by dismissing the petitions of Pakistan’s Movement for Justice leader Imran Khan and the MMA’s Qazi Hussein Ahmed in a 6-3 verdict, as being non maintainable. The Supreme Court verdict has caused a major split amongst analysts, the media, legal experts and the people of Pakistan, a large majority of whom have dissented from the stated position of the government’s lawyers. In its true respect, the short order given by the nine member Supreme Court bench that was being headed by Justice Rana Bhagwandas, has many shortcomings and is worthy of being challenged.

The verdict has indeed given rise to many questions. Firstly, when the petitions were indeed non-maintainable, then why did the Supreme Court not throw them out straight away? A lot of precious time and public money had gone into hearing these petitions and if they were truly non-maintainable, then the court should have thrown them out and diverted its attention to the reportedly increasing backlog of cases that have been piling up in the Supreme Court.

Secondly, a report in The News newspaper alleged that three of the judges sitting in the nine member bench were receiving threats from government officials and were being pressurised to vote in the ‘General President’s’ favour. Their families had told the correspondent who filed the report that they were receiving threats from government officials. If this were indeed true, then why have those judges not been identified and asked to leave the bench as in this case, their presence would hurt the rational objectivity that is required to hear a complicated case of national political importance such as the dual office petitions?

Thirdly, in a case of such importance, why was the full court not hearing the petitions? These questions, had remained unanswered at the time of this writing. However, in this whole episode the Supreme Court has only sent conflicting signals to the media and the population. Take the example of Justice Javed Iqbal’s assertion a few days ago that the doctrine of necessity had been buried forever. Indeed those of us (journalists and freelance writers, that is) who had been following the Supreme Court’s proceedings over the last three months, had hailed this as a major achievement in the road towards building of a democratic society where constitutional and judicial supremacy, rule of the law and freedom of expression, action and the media would not only be made prerequisites, but would also be respected. However, the latest verdict of the Supreme Court, that has allowed General Musharraf to contest the upcoming presidential elections in military uniform, has led many experts to believe that the doctrine of necessity has been given a new lease of life, this sounds ridiculous. This is not what the masses expected of the Supreme Court. By allegedly reinforcing the doctrine of necessity, the Supreme Court has indeed repeated history! One major question raised with respect to the Dual office petitions had been regarding the constitution of a full court bench to hear these petitions which was rejected by the court and instead, Justice Iftikhar Chaudhry constituted a nine member bench headed by Justice Rana Bhagwandas, to hear the case.

A brief glance at Pakistan’s chequered judicial history does suggest that whenever the military establishment is a stake holder in judicial proceedings, most of the times there is no full court hearing the case and many a times, judicial proceedings and commission reports have been devastatingly altered by the ruling Generals, in an effort to promote the establishment views and perspectives through the obstruction of the flow of information and its rampant misinterpretations.

Back in 1979, the Supreme Court bench that was hearing the cases against the then deposed Prime Minister Zulfiqar Ali Bhutto, comprised of seven members and one of them was the father of the current Attorney General, Malik Mohammed Qayyum. He, along with three other judges had given their verdict for the death sentence of Bhutto. Its now well known and documented that as to how much pressure officials from the Zia regime had applied on the judges..

However, all these years down the lane, many things have changed. The year 2007 would go down in Pakistan’s history as the landmark year when the Supreme Court did indeed have the courage to give decisions against a non-elected and unconstitutional military dictator and the establishment. However, by dismissing the petitions challenging the president’s dual officies, i.e. holding the presidency and being the military chief at the same time, the Supreme court has sent conflicting signals to all the major stakeholders of the democratic movement that is in full sway and is being spearheaded by lawyers and journalists. In doing so, the Supreme Court has lost a truly historic opportunity to lay strong foundations of democracy and rule of the law in the country.

Despite the conclusion drawn above, it would still be worthwhile to discuss the other pertaining questions that arise from the highly dubious decision given by the Supreme Court regarding the opposition’s petitions’ supposed ‘non-maintainability’.

Firstly it must be said that the evidence and media coverage that the proceedings got do not provide us with even an inkling of evidences suggesting that the merits of the petitions had been debated and discussed during the hearings. Also there is no evidence given so far that could really tell us that on what grounds the petitions were rendered non-maintainable and thus thrown out. Clearly for this we would have to wait for the detailed verdict of the Supreme Court!

Secondly, many opposition politicians and lawyers have had their reservations against the Supreme Court’s decision and the points that they have raised do form parts and parcels of a healthy legal and constitutional debate that might ensue in the Supreme Court and the media in the coming days.


In a news report entitled “opposition regrets Supreme Court verdict”, The Nation newspaper on September 29th (the day after the Supreme Court ruling on the petitions), quoted MMA’s Professor Ghaffor as saying that before constituting a nine member bench (to hear the petitions against President General Musharraf’s two offices), the case’s proceedings were being headed by none other than Chief Justice Iftikhar Mohammed Chaudry. This, according to the professor meant that the case was clearly maintainable.

Indeed it was. What seems to be clearly transparent is that rather than on the basis of merits, the petition were done away with on certain technical grounds, or perhaps the judges were giving in to the pressure being wielded and exerted upon them by the Presidency and the intelligence agencies. Journalistic investigations that have been so far unable to find virtually no legal or meritocratic evidences that suggest as to why the petitions were legally flawed and therefore not maintainable.

Another news report in The Nation that was published on September 29th actually went on to say that “the court did not rule on the merits of the case, but knocked down the petitions on the technical grounds of maintainability. The key issues in the court remain un- touched. On top is potentially the most dangerous precedent being set by a serving army chief by contesting election in violation of his oath and constitutional provisions.” The paper also went on to mention that judges had not written a single sentence explaining that why were the petitions not maintainable.

In the press, senior judges of the Supreme Court nine-member bench have had to face criticism on the fact that it took them a wholesome eleven days of daily hearings just to decide upon the maintainability of the case. This, in itself shows that the merits were not on the priority list of the judges.

On September 29th, regarding General Musharraf’s eligibility for standing in the Presidential elections, the Dawn newspaper quoted presidential candidate Justice (retd) Wajeehuddin Ahmed as saying that “if he cannot constitutionally hold office of COAS on and after November 16, 2007, he can also not hold the office of COAS when he offers himself as candidate for president.”

Here, the readers must know that the Seventeenth Amendment that was passed by the National Assembly and the Constitution of Pakistan allows General Musharraf to hold his dual offices till the term for the current assemblies expires, i.e. till November 15th 2007. However, the constitution also states that a public servant cannot run for government posts or take part in national elections for at least two years after retirement/ tendering resignation. This is because the constitution envisages the state to be under the control and leadership of a democratic government at most times. Thus, if General Musharraf doffs his military uniform before the elections, as many opposition lawyers, media and politicians including Benazir Bhutto and her Pakistan People’s Party are pressurising him to do or immediately after that, he would automatically be disqualified from his candidacy for the presidency of this country.

The road ahead would surely be a tough one, both for the government and the civil society. The Supreme Court’s flawed verdict has actually given way to more legal challenges that would be taken up in the Court and in the Election Commission of Pakistan in the days to come. The focus however seems to be shifted as now it is expected that the merits of the General’s overall candidature and his unconstitutional military uniform, holding of two public offices, his degree of graduation (actually there is none so far) and the constitutional complexities surrounding all this would now be taken up together. This was not the case before. The road ahead is tough indeed, but the fight would only be worth if supremacy of the law and the constitution, liberal secularist democracy and a free media come out to be the ultimate decisive winners in the end.


The new petition

In the first week of October 2007, the opposition candidates, Justice Retired Wajeehuddin Ahmed and Makhdoom Amin Fahim of the Pakistan People’s Party filed to renewed petitions that now challenge the General Musharraf’s candidature for the presidential re-election. On part of the lawyers opposition, the case of Justice Wajeehuddin is based broadly on four major points. The opposition members who had filed the earlier petitions did not take up these points.

According to Articles 41, 43, 63 and 244 of the constitution bar General Musharraf for contesting in these presidential elections because of his controversial military uniform that bars him from holding another public office for at least two years after the uniform is doffed.
General Musharraf and Pakistan’s military establishment has by and large failed to understand that the President of a country whose people wish to have a clean and democratically elected government, has to be someone with extensive political background and experience and should be someone who is elected by representative and current assemblies, not the feudalistic ones who have been fractured and truncated by resignations and are already on the run.

In Pakistan, like all Western democratic society, the military is well under civilian control. This essential aspect has also been well scripted in our constitution. The military is only required to perform its constitutional roles and the coherence of functioning and unity between the military’s top brass and the national government should be the result of a civilian control of the military. A president who is in military uniform defies this logic as brilliantly as does a current civilian who has just doffed the uniform even two years ago. This is because even in the case of the latter, the candidate in concern would still be regarded as a man who is from the military establishment who knows little about liberal democracy, political science, etc. by virtue of his educational or professional background. Thus a president who is a sitting army chief or a retired one, makes no such difference as the status quo remains the same.

Another point raised by Justice (Retd) Wajihuddin Ahmed has been that by amending Rule 5 of the Presidential Election Rules of 1988, it has exempted the incumbent General from various disqualifications, which were otherwise applicable on him.

The last of the major point raised by Jusitce Wajih’s legal team has been about the timing of the Presidential election, which according to many has been considered as skewed on two major counts. Firstly because of the questions and constitutional issues regarding the President’s eligibility that are still pending in the Supreme Court and would remain unsolved till October 6th. Secondly, according to constitutional norms and requirements, many analysts and professionals feel that now is the right time to elect a new assembly, which then goes on to elect a new president.

However, as the Supreme Court hearings are not over for these petitions, commenting on them would just not be right, so lets not go into that. Conclusively however, it can be said that right now the Supreme Court is under a lot of pressure and pretty much in a precarious situation, just like the rest of the country. Considering the overall merits of the case, there is no question of giving the decision in favour of the military establishment by risking the re-birth or re-launch of the notorious ‘doctrine of necessity.’ This time round, the decision should come in favour of the opposition and the court must base its decision purely on the basis of the merits of the petitions and the majority public’s opinion, just as it happened during the case of Chief Justice Iftikhar Mohammed Chaudhry.