In a move unprecedented in Pakistan’s 62-year-old history, the Supreme Court summoned former president Pervez Musharraf to explain his November 2007 decision to suspend the constitution, impose emergency rule in the country and fire all the top judges. The notice requires Musharraf to either appear in person or through counsel on July 29, 2009.
The development has historic significance in a country where Martial Law has been imposed four times, each one accompanied by a nod from a submissive Supreme Court. The court’s order could also possibly be the first step towards a one-of-a-kind trial against a former military ruler.
Let’s take a look at what took the Supreme Court Full Bench to summon the former Chief of Army Staff and President Mr. Pervez Musharraf, the past views of the Supreme Court of Pakistan and brewing crisis.
On October 5, 2007, Exercising powers under Article 89 of the Constitution of the Islamic Republic of Pakistan, the then General Pervez Musharraf COAS and the President of Pakistan was pleased to make and promulgate an Ordinance an ORDINANCE to promote “National Reconciliation”, that reads;
“WHEREAS it is expedient to promote national reconciliation, foster mutual trust and confidence amongst holders of public office and remove the vestiges of political vendetta and victimization, to make the election process more transparent and to amend certain laws for that purpose and for matters connected therewith and ancillary thereto;-AND WHEREAS the National Assembly is not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action; NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following Ordinance;-“
1. Short title and commencement.
(1) This Ordinance may be called the National Reconciliation Ordinance, 2007.
(2) It shall come into force at once.
2. Amendment of section 494, Act V of 1898.
In the Code of Criminal Procedure, 1898 (Act V of 1898), section 494 shall be renumbered as sub-section (1) thereof and after sub-section (1) renumbered as aforesaid, the following sub-section (2) and (3) shall be added, namely:-
(2) Notwithstanding anything to the contrary in sub-section(1), the Federal Government or a Provincial Government may, before the judgment is pronounced by a trial court, withdraw from the prosecution of any person including an absconding accused who is found to be falsely involved for political reasons or through political victimization in any case initiated between 1st day of January, 1986 to 12th day of October, 1999 and upon such withdrawal clause (a) and clause (b) of sub-section (1) shall apply.
(3) For the purposes of exercise of powers under sub-section (2) the Federal Government and the Provincial Government may each constitute a Review Board to review the entire record of the case and furnish recommendations as to their withdrawal or otherwise……… (1)
The constitutional dilemma of Pakistan has its origin in the actions that Pervez Musharraf, in his infinite wisdom deemed prudent to take, as the Chief of Army, while also holding the office of “President of Pakistan” on 3 November 2007, with the sole objective of to pre-empt a perceived adverse decision of the then Supreme Court, against his competence or otherwise, to contest the office of “President of Pakistan”, while he was in uniform.
“Proclamation of Emergency
WHEREAS there is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;
WHEREAS there has also been a spate of attacks on State infrastructure and on law enforcement agencies;
WHEREAS some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism thereby weakening the Government and the nation’s resolve and diluting the efficacy of its actions to control this menace; WHEREAS there has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth in particular;
WHEREAS constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists; WHEREAS some hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued;
WHEREAS some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions; WHEREAS the Government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honorable Judges confine the scope of their activity to the judicial function and not assume charge of administration;
WHEREAS an important Constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and non est by a recent order and judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability; WHEREAS the humiliating treatment meted to government officials by some members of the judiciary on a routine basis during court proceedings has demoralized the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction;
WHEREAS the law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded; WHEREAS a situation has thus arisen where the Government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures;
AND WHEREAS the situation has been reviewed in meetings with the Prime Minister, Governors of all four Provinces, and with Chairman Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice-Chief of Army Staff and Corps Commanders of the Pakistan Army; NOW, THEREFORE, in pursuance of the deliberations and decisions of the said meetings:-
1. I, General Pervez Musharraf, Chief of the Army Staff, proclaim Emergency throughout Pakistan.
2. I hereby order and proclaim that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance.
3. This Proclamation shall come into force at once. (2)
On November 3, 2007, Musharraf, acting as Army Chief, imposed a state of emergency throughout Pakistan and as the President of Pakistan, also issued a Provisional Constitution Order and suspended the Constitution for Purported reasons of “rise in terrorism and judicial activism.” (3)
The same day seven judges of the Supreme Court declared the Provisional Constitution Order as unlawful and restrained the Chief of Army Staff, Corps Commanders, Staff Officers and other civil and military officers from acting under the decree. These judges also stated in their Order that the appointment of Chief Justice of the Supreme Court or Chief Justices of the High Courts under the PCO would be unlawful and without jurisdiction. (4)
Notwithstanding the above-mentioned Order, a new Supreme Court was installed under the PCO and the pre-PCO judges were incarcerated. The civil society resented and the lawyers renewed their struggle for the ‘reinstatement’ of the ‘deposed’ judges.
On 15 November 2007, Musharraf as COAS transferred the power of lifting the emergency to the office of President. The Order came into force immediately and was ‘deemed to have taken effect from 3 November 2007.’(5)
On 21 November 2007, Musharraf as President amended the Constitution through an executive order promulgated under the PCO and described as the Constitutional (Amendment) Order 2007. The Presidential Order introduced several amendments in the Constitution, including Article 270 AAA, which in essence took away the power of judicial review by superior courts of all actions taken under the PCO.(6)
On November 22, 2009, the then President of Pakistan “(Oath of Office (Judges) Order, 2007
November 3, 2007:
Whereas in pursuance of the Proclamation of Emergency of the 3rd day of November, 2007, and the Provisional Constitutional Order No. 1 of 2007, the Constitution of the Islamic Republic of Pakistan has been held in abeyance;
Whereas Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the President has, and shall be deemed always to have had the power to amend the Constitution;
Whereas all Courts in existence immediately before the commencement of this Order will continue to function and to exercise their respective powers and jurisdiction subject to the Proclamation of Emergency and the Provisional Constitutional Order No. 1 of 2007;
And whereas to enable the Judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office;
Now, Therefore, in pursuance of the aforesaid Proclamation and the Provisional Constitutional Order No. 1 of 2007, and in exercise of all other powers enabling him in that behalf, the President is pleased to make and promulgate the following order:-
On 22 November 2007, the post-PCO Supreme Court dismissed the last pending petition challenging Pervez Musharraf’s re-election as President. Earlier it had dismissed other petitions. This removed the final obstacle from Musharraf’s way to become a civilian President.
On 23 November 2007, the post-PCO Supreme Court validated all the actions taken by Musharraf in his capacity as Chief of Army Staff, including the Proclamation of Emergency and Provisional Constitution Order of 3 November 2007 and subsequent Orders.
Next day, 28 November 2007, Musharraf stepped down as the Chief of Army Staff and handed over the army command to General Ashfaq Parvez Kayani.
On 14 December 2007, Musharraf as President introduced six amendments in the Constitution, including the amendment to make disqualification clause contained in Article 63 of the Constitution non-applicable to President and amendment of Article 270-C to provide that the judges who did not take oath under the Oath of Office (Judges) Order 2007 would cease to hold office with effect from 3 November 2007 and the judges who took oath under the said Order would continue to hold office under the Constitution.(8)
On 15 December 2007, Musharraf, as President, lifted the emergency, repealed the PCO and revived the 1973 Constitution in its ‘amended’ form through a Presidential Order. (9)
It was under this alleged ‘amended’ Constitution that the general elections were held on 18 February 2008.
Even if the Proclamation of Emergency and Provisional Constitution Order of 3 November 2008 are considered as without lawful authority, several other steps taken subsequent to or flowing from PCO would have to be validated.
On March 16 2009, the Prime Minister of Pakistan Mr. Yousuf Raza Gilani appeared on electronic media and announced; “My dear countrymen Assalam-o-Alaikum, I am speaking to you at a time when our country is standing at a critical moment. No country can make progress without political tolerance and the PPP and lawyers have been together in struggle for upholding democracy in Pakistan. Shaheed Mohtarama Benazir Bhutto actively participated in the struggle of restoration of judiciary was launched by lawyers. Benazir Bhutto wanted free judiciary and supremacy of the constitution.” (11)
On March 17, 2009, President Asif Ali Zardari President Asif Ali Zardari said that he was only waiting for the retirement of present Chief Justice Abdul Hameed Dogar before restoring Justice Iftikhar Muhammad Chaudhry as the country’s Chief Justice.
“I never said that I am against Justice Iftikhar. I was only waiting for the retirement of Justice Abdul Hameed Dogar, who took oath as the Chief Justice in the Musharraf regime. Dogar will retire on March 21 and Iftikhar Muhammad Chaudhry will become the chief justice again in his place,” Zardari said.” I had made it clear on March 9, 2008 after signing the Murree Declaration that no sitting judge would be disturbed. I said it in the presence of Nanas Shari to the media and that was why I never disturbed Dogar,” The News quoted him, as saying. “It was a small thing, but this small thing exposed many big people,” he said. (12)
With utmost deference to view, that the Judges could be reinstated by, merely some Executive Mechanism, it is imperative to identify, retain and validate all those actions which resulted in coming into being of the “New Democratic Order” through a constitutional package in the form of Eighteenth Amendment Bill, is unavoidable, so as to retain what is to be retained and getting rid of what needs to be expunged from the Constitution, including the very important issue of revival of Judiciary to its Constitutional Glory.
In this regard one may take cue from precedents:
1. In the Asma Jilani Case, the Supreme Court declared General Yahya Khan an usurper but validated all closed and past transactions whose re-opening could not have served any useful purpose, all acts and legislative measures which could have been validly taken under the abrogated constitution, all acts which promoted the good of the people and all acts which were required to be done for ordinary running of the state.
2. In August 2002, Mushrraf promulgated the Legal Framework Order to amend the Constitution. The LFO was challenged in the Supreme Court in the Watan Party versus the Chief Executive/President of Pakistan under Article 184 (3) of the Constitution. Although in its judgment delivered on 7 October 2002 the Supreme Court dismissed the petition on the ground that the Watan Party did not have any locus standi to invoke the Court’s jurisdiction under Article 184 (3), it observed:
“It is worthwhile to mention that all major political parties have fielded their candidates to contest the General Election 2002 under the conduct of General Election Order 2002 (Chief Executive’s Order 7 of 2002) and none of them has come forward with a petition to question any provision of the Legal Framework Order. It is well known now that after the election the National Assembly and the Provincial Assemblies will meet. The members will elect Speaker, Deputy Speaker, Prime Minister, Chief Ministers and the Senators. The elected Parliament is in immediate sight and obviously the Parliament and not this Court is the appropriate forum to consider all these amendments. We may further observe that procedure to amend the Constitution as enshrined in Article 239, Part XI remains unaltered. The Parliament retains same power to amend the Constitution as it did before the promulgation of the Legal Framework Order.”
It is beyond common sense to accept that the amendments under PCO issued by the COAS as lawful or valid and a Supreme Court whose own creation is defective in law can validate such apparently malafide actions. How could the burden of such nullifying acts taken without unless the lawful authority is shifted to the Parliament and that too with a two-third majority?
The Parliament may, therefore, declare the Proclamation of Emergency and PCO of 3 November 2007 as ab-initio invalid, while endorsing the subsequent measures, from or under it, applying the touchstone of the judgment in the Asma Jilani Case, pronounced post humus and that too in adjudicating the Supra Constitutional Acts of a Martial Law Administrator.
The amendments and actions that need to be rejected may be ignored as non-existent, ab-initio, whereas those need to be accepted as existent-ional expediencies or necessary evils to avoid collective political suicide, be adopted, retroactively, despite being the out come of a Supra Constitutional act of an individual, according to the procedure enshrined in the Constitution.
These actions, besides other, could include giving validity to incumbent holder of President’s office, the Elections held under his skipper ship, under the PCO issued by him as COAS, subsequently delegated by him to the President and retracted by later, through Revival of Constitution Order on 15th December 2007.
Validity may be needed for other acts of the President, including appointments, installation of new National and Provincial Assemblies and Cabinets Elected by them and consequent transition to New Democratic order.
Constitution provides that if due to any reason the presidential election is not held within the prescribed time-limit, the incumbent would continue to hold office. It may be deemed that Musharraf administered the oath of office to the Prime Minister and his Cabinet as the President who had taken oath in 2002, if his election for second term is held unconstitutional, via a Constitutional Amendment and Validation Act.
The constitutional package may repeal the notorious Seventeenth Amendment to the Constitution to restore the parliamentary character of the government. It may grant provincial autonomy and abolish the concurrent list of subjects. It may take inspiration through stringent criteria for selection of judges of the superior judiciary, elsewhere in the world.
The Parliament may also appoint a committee to look into the conduct of the sitting judges and recommend filing of references in the Supreme Judicial Council against those who are apparently guilty of misconduct.
NATIONAL RECONCILIATION AND THE SUPERIOR JUDICIARY:
In his speech after receiving unanimous vote of confidence in the National Assembly, Prime Minister Yusuf Raza Gilani proposed creation of a ‘Truth and Reconciliation Commission’ to promote national unity.
The purpose of any such commission can only be served if its scope is large enough, and the state institutions candidly admit where they went wrong and demonstrate willingness to adopt corrective measures.
Hitherto, there has been a general tendency to blame the armed forces, the bureaucracy and the political parties for the failure of democracy and lack of good governance in Pakistan. The role of the superior judiciary in supporting dictatorial regimes has largely been ignored.
In the euphoria created by the now subsided, movement for reinstatement of pre-PCO judiciary, one must not be unmindful of the role that the superior judiciary has played in legitimizing and validating constitutional deviations and outright subversions of the Constitution.
If the military generals, senior bureaucrats and politicians have shown scant respect for constitutional niceties, a compliant judiciary has connived in their unconstitutional actions.
Just to refresh one’s memory, a reference may be made to some landmark judicial decisions:
1. On 24 October 1954, Governor General Ghulam Mohammad issued a proclamation:
“The Governor General, having considered the political crisis with which the country is faced, has with deep regret come to the conclusion that the constitutional machinery has broken down. He therefore has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function.”
Although the Constituent Assembly met the next day and hurriedly passed what could have been the Constitution of 1954, it was physically prevented from meeting again on 27 October 1954 at the order of the Governor General.
This led to a legal battle.
The President of the Constituent Assembly, Maulvi Tamizuddin Khan, challenged the action of the Governor General in the Chief Court of Sindh. A full bench of the Court, presided over by Chief Justice George Constantine, gave its verdict in favor of Maulvi Tamizuddin Khan and nullified the action of the Governor General. The Governor General filed an appeal in the Federal Court. Under Chief Justice Muhammad Munir, the Federal Court by a majority decision held that since section 223-A of the Government of India Act, under which the Sindh Chief Court had issued the writ, had not received the assent of the Governor General, it was not a valid law and the Chief Court had no jurisdiction to act.
Subsequently, in response to Governor General’s reference, the Federal Court justified the dissolution of the first Constituent Assembly under the doctrine of necessity.
According to an analyst, “The judgment of the Federal Court in Tamizuddin Khan’s case paved the way for future justifications by the judiciary of patently arbitrary, malicious and capricious acts of the executive on hyper-technical grounds or self-serving theories or concepts.” (Hamid Khan, Constitutional and Political History of Pakistan, Karachi: Oxford University Press, 2001, p. 140)
2. On 7 October 1958, President Iskandar Mirza abrogated the Constitution of 1956 and imposed martial law. He appointed Commander-in-Chief of Pakistan Armed Forces General Mohammad Ayub Khan as the Chief Martial Law Administrator. The validity of the martial law came into question in the Supreme Court in what is called the Dosso Case. Chief Justice Muhammad Munir delivered the majority judgment: “ Where a Constitution and the national legal order under it is disrupted by an abrupt political change, not within the contemplation of the Constitution, then such a change is a revolution and its legal effect is not only the destruction of the Constitution but also the validity of the national legal order, irrespective of how or by whom such a change is brought about.” Relying on Hans Kelsen’s General Theory of Law and State, the Court further held: “Where a revolution is successful, it satisfies the test of efficacy and becomes a basic law-creating fact.” This was the most blatant example of validating the subversion of the constitution and declaring that might was right.
3. On 25 March 1969, President Ayub Khan deviated from his own Constitution of 1962 and handed over power to C-in-C General Agha Mohammad Yahya Khan who imposed martial law. It was only after Yahya Khan had gone that the Supreme Court in Asma Jilani Case showed the courage to declare him an usurper. The principle on which the Dosso Case had been decided was overruled by the Supreme Court in Asma Jilani Case as “unsustainable” and “not good in law either on the principle of stare decisis or otherwise.” However, validity was given to all necessary acts of the usurper.
4. On 5 July 1977, Chief of Army Staff General Mohammad Zia ul Haq deposed elected Prime Minister, Zulfikar Ali Bhutto, although an agreement between the government and the opposition PNA to hold fresh elections had almost been finalized. Zia ul Haq subverted the unanimously approved Constitution of 1973 and under Article 6 of the Constitution was guilty of high treason. The validity of martial law came into question in the Nusrat Bhutto Case. The Supreme Court validated the martial law as an extra-constitutional measure under the doctrine of necessity. The Court observed that “ it had found it possible to validate the extra-constitutional action of the Chief Martial Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown; but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections.” According to the Judgment, Martial Law Orders were to be subject to judicial review. However, Zia ul Haq was authorized to amend the Constitution if and when necessary. Zia-ul Haq did not fulfill his pledge to hold early elections. Instead, he issued Provisional Constitutional Order in 1981 and sent several judges home. Others did not have any qualms in taking oath under PCO that replaced the Constitution of 1973. Zia ul Haq lived up to his Judicial Validation in letter and spirit and vindicated the Superior Court is a question for people of Pakistan would decide!
5. On 12 October 1999, COAS General Pervez Musharraf assumed power in a coup that ousted Prime Minister Nawaz Sharif who enjoyed two-third majority in the National Assembly. In Zafar Ali Shah Case, the Supreme Court validated Pervez Musharraf’s Proclamation of Emergency and Provisional Constitution Order under the law of necessity. The Supreme Court adhered to the principles on which the Nusrat Bhutto Case was decided except that it gave three years to Pervez Musharraf to hold general elections in the country. (Iftikhar Mohammad Chaudhry was one of the judges who took oath of office under Pervez Musharraf’s first PCO.)
6. On 9 April 2002, Musharraf as the Chief Executive and President issued Chief Executive’s Order No. 12 of 2002 for holding of a referendum to get himself ‘elected’ as President for a five-year term. This Order was immediately challenged in the Supreme Court under Article 184 (3) on the constitutional plane as well as the touchstone of the Supreme Court’s judgment in the Zafar Ali Shah Case. On 27 April 2002, the Supreme Court gave a short order validating the holding of the referendum scheduled for 30 April 2002.
However, the Court passed on the buck to the Parliament by stating: “As regards the grounds of challenge to the consequences flowing from the holding of referendum under the Referendum Order, apparently these questions are purely academic, hypothetical and presumptive in nature and are not capable of being determined at this juncture. Accordingly, we would not like to go into these questions at this stage and leave the same to be determined at a proper forum at the appropriate time.”
7. On 21 August 2002, Musharraf issued the Legal Framework Order with a view to drastically amend the Constitution of 1973. The most significant amendment under the LFO was restoration of Article 58 (2) (b), which empowered the President to dissolve the National Assembly if in his opinion the government of the federation was not carried on in accordance with the Constitution and an appeal to the electorate was necessary. The Supreme Court judgment in the Zafar Ali Shah Case had clearly restrained Musharraf from introducing any structural changes in the Constitution. The Watan Party challenged the LFO but its petition was dismissed on the ground that it did not have any locus standi in the matter.
8. However, the Supreme Court observed; “The elected Parliament is in immediate sight and obviously the Parliament and not this Court is the appropriate forum to consider all these amendments.”
The above-mentioned judgments clearly indicate that the superior judiciary has avoided giving bold judgments and failed to guard the sanctity of the Constitution. Rather it has offered a helping hand in the subversion of the Constitution.
Not only this on several occasions the brother judges have not stood by each other.
In the conflict between Chief Justice Sajjad Ali Shah and Prime Minister Nawaz Sharif the people of Pakistan were stunned to see the most bizarre scenes. The benches of a divided Supreme Court gave conflicting judgments and there were rumors about briefcases changing hands.
What about the storming of the Supreme Court? No serious steps were taken against the culprits. Ultimately all those who were responsible for assault on the Supreme Court practically went scot-free, not withstanding their present or past political affiliations.
When Musharraf decided to file a reference against Chief Justice Iftikhar Mohammad Chaudhry in the Supreme Judicial Council, the said body was formed in no time without giving any thought to its proper constitution. The brother judges did not wait for return of Justice Bhagwan Das, the Senior Most Judge. Chief Justice Sabihuddin of Sindh High Court flew for Islamabad on call.
When Musharraf made Chief Justice Ifthkhar Mohammad Chaudhry ‘non-functional’, Justice Javed Iqbal immediately took oath as Acting Chief Justice. He did not consult the Chief Justice Iftikhar Mohammad Chaudhry or wait for Justice Bhagwan Das. W
What about the role of Brother Justice (since retired) Abdul Hameed Dogar the PCO Chief Justice? Despite being a direct beneficiary, he presided over the validation of the Proclamation of Emergency and Provisional Constitutional Order of 3 November 2007.
Most of the judges of Pakistan’s Superior Courts have demonstrated, inclination of doing any thing and everything in the face of pressure and threats, and for perks and privileges-and chamak, Right from judicial murder of Zulfikar Ali Bhutto to restoration of Nawaz Sharif’s government in 1993, which was said to be the result of ‘chamak’ (implying shine of money) there are ample instances.
To ensure the supremacy of the Constitution and to strengthen the civil society, the ultimate aim should be to have competent and fearless people in the judiciary. The reinstatement of pre-PCO judiciary is not the solution but ought to be the beginning; we need judges like Justice George Constantine, Justice A.R. Cornelius and Justice R. Kayani, Justice Dorab Patel, Justice Fakhruddin G. Ebrahim and Justice Wajihuddin Ahmed to name a few.
During last six decades we have witnessed that the executive, has been progressively becoming prone to, appointing judges on the basis of their political affiliation and pliability or both and some times to cater to lobbies. The judges who lack moral courage and who are not prepared to take principled stand for a just cause can never ensure supremacy of the Constitution or the rule of law.
In the constitutional package that is on the anvil necessary provisions should be made to ensure that the appointments in superior judiciary are based on ability and competence, uprightness and courage, and that the whole procedure and process is transparent.
It is also important that the judiciary is made independent of financial and administrative control of the executive.
After reinstatement of the pre-PCO judiciary, the stringent qualifications mentioned above should be applied on those who intend to continue to serve the people and the Nation by upholding the Constitution. They should clear them of pending charges of misconduct.
President Musharraf had constitutional authority to file reference against Chief Justice Iftikhar Mohammad Chaudhry. He made a serious error of judgment in inviting the Chief justice to the army house and pressuring him to resign and in notifying him as ‘non-functional’. Thereafter the whole issue assumed an emotional character and massive repulsion was progressively witnessed against him when he failed to retrace his steps, despite fair amount of education from Lawyers and Jurists Community. The Supreme Court threw out the reference on technical ground.
The long, arduous and consistent Lawyers’ and Civil Society’s movement has resulted in Restoration of Pre-November 3 2007 Judiciary in March 2009. Summoning of a ex-President and COAS may be step in the right direction, popular too, but in the final analysis the Supreme Court may have to call upon the parliament-Majlis-e-Shura of Pakistan, to review the whole gamut of measures unleashed and taken by the erstwhile President/COAS from March 9 2007 to November 3 and up to February 18, with a mandatory direction to examine validate such acts and laws as are in conformity and harmony with the Constitution and throw out the rest as rubbish. The Pandora Box will have to be opened but not in Court Room but on the floor of the House, where the course correction ought to take place.