In what has been rightly described by Pakistani analysts as one of the most historic judgments in the country’s judicial history, its Supreme Court on July20, 2007, reinstated Chief Justice Iftikhar Muhammad Chaudhry, setting aside the presidential reference filed against him on March 9, 2007 by President Pervez Musharraf. The General had declared the Chief Justice non-functional after referring to the Supreme Judicial Council certain charges against the Chief Justice relating to his personal conduct and probity.
By a 10 to 3 judgement, the court headed by Justice Khalil-ur-Rehman Ramday, held the actions taken by Musharraf against the Chief Justice unconstitutional. The detailed reasons for the order would be given later. The court also observed that the case should not be interpreted as one of the Judiciary vs the Army. In other words, it was a ruling not against the Army and not against Musharraf as the President and the Chief of the Army Staff (COAS), but against an arbitrary action of the Executive in violation of the Constitution.
In genuine democracies such as those of India and the Western countries, adverse rulings by the judiciary against the Executive are nothing unusual. An adverse ruling against the Executive as an institution is not viewed as an adverse ruling against the Chief Executive as an individual and no demands are made for the resignation of the Chief Executive unless the highest court passes severe strictures against the Chief Executive as a person for the manner in which he or she exercised his or her powers.
In Pakistan, this judgement has been viewed as historic because for the first time in its history, the judiciary has not justified the action of a military ruler under the doctrine of necessity and has not hesitated to declare the action of Musharraf as unconstitutional. Pakistan's judiciary was generally subservient to the executive, whether it was under political or military leadership. Political leaders such as the lateZulfiqar Ali Bhutto, Mrs Benazir Bhutto and Mr Nawaz Sharif were as arbitrary and as ruthless in imposing their will on the judiciary asGen Zia-ul-Haq and Gen Musharraf were.
It goes to the credit of Chief Justice Iftikhar Muhammad Chaudhry that he broke from this past habit of subservience. Even last year, he had ruled against the manner in which the Executive had privatised the Pakistan Steel Mills. He followed this up by entertaining public interest petitions from the relatives of dozens of missing persons, many of whom were suspected to have been illegally arrested by the Inter-Services Intelligence (ISI) and handed over to the US authorities on suspicion of their being terrorists.
It was his interest in the whereabouts of missing persons--many of them allegedly in the US detention centre in Guantanamo Bay inCuba--which set the alarm bells ringing in the offices of Musharraf and the ISI. Added to this was the fear that his repeatedly demonstrated independence might come in the way of Musharraf getting himself re-elected as the President by the present National Assembly, whose term expires later this year, instead of seeking re-election after a new National Assembly has been elected. Musharraf was also afraid that the Chief Justice might debar him from giving himself another extension as the COAS when the present one expires in December next. Under Pakistan's electoral laws, a serving government servant cannot contest elections.Musharraf has repeatedly exempted himself from this provision in order to hold double charge as a serving COAS and an "elected" President, which is totally unconstitutional.
If the past subservience of the judiciary has been broken, the credit for this should entirely go to the Chief Justice. He refused to be intimidated by Musharraf, Prime Minister Shaukat Aziz and the heads of the Intelligence agencies. His defiance of Musharraf electrified the lawyer community and large sections of the public and he became an iconic figure for those demanding the restoration of democracy and the exit of Musharraf and the Army from power. Successful defiance of a dictator has an infectious effect. Not only large sections of the people, but also many members of the judiciary started defying the executive and the army. Some resigned in solidarity with the Chief Justice and some others stayed in office and expressed their defiance in other ways. It was this spread of the spirit of defiance to the serving judges of the Supreme Court, which has now resulted in the setting aside of Musharraf's orders suspending the Chief Justice and restoring him to his high office.
Musharraf found himself with no other alternative, but to accept the verdict in seeming good grace. It is a blow to his prestige, but the blow need not necessarily be fatal so long as he continues to enjoy the support of the senior officers of the Armed Forces and so long as public mobilisation against him does not have a snowballing effect. The lawyers and other opponents of Musharraf managed to mobilise large sections of the public by exploiting the iconic figure of a Chief Justice arbitrarily thrown out of his job. With the Chief Justice now back in his job, they no longer have an iconic figure out in the streets whose image they can exploit. They now have to look for issues, which they can exploit for keeping the anti-Musharraf crowdsmobilised.
Among the issues which they are likely to exploit are the illegality of the move to have Musharraf re-elected by the present National Assembly and to have him continue as the COAS and the accountability of those, who were responsible for the death of a large number of girls studying in the girls madrasa inside the Lal Masjid complex during the raid by the Commandoes on July 10. Will the Supreme Court take up these issues? If it does, will the reinstated Chief Justice be able to chair the benches which will hear thecases? It could be argued that since he was projected as an adversary of Musharraf for nearly five months by the lawyers and people, it would not be correct for him to personally hear any judicial petitions against Musharraf.If he voluntarily abstains from chairing the benches constituted to hear any petitions against Musharraf in the interest of fair play, will the benches constituted for the purpose demonstrate the same independence in hearing any petitions against Musharraf as they did in ordering the reinstatement of the Chief Justice? Musharraf's political future will depend on answers to these questions.
The opposition scene in Pakistan is characterised by two strong trends--strong anti-Americanism manifested by the traditional religious parties, which are not necessarily equally strongly anti-Musharraf and a strong anti-Musharraf trend manifested by non-religious parties, which are not anti-American. Unless these trends are brought together by his opponents,Musharraf may manage to politically survive despite the set-back suffered by himconsequent upon the judicial snub.
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B. Raman is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai.
