Fourteen judges of the Supreme Court of Pakistan, led by Chief Justice Iftikhar Muhammad Chaudhry, added a golden page to the global history of upholding a country’s Constitution and protecting the independence of the judiciary by suspending former President Pervez Musharraf’s provisional Constitution on July 31.
In delivering a judgment on two constitutional petitions filed by the Sindh High Court Bar Association and Advocate Nadeem Ahmed, the court reversed the arbitrary orders issued by Musharraf, who had suspended the Constitution of Pakistan on Nov. 3, 2007.
The court also held the Provisional Constitutional Orders of November 2007 and 37 other ordinances promulgated by Musharraf as unconstitutional, and declared his orders as serious impediments to the functioning of the judiciary as well the rule of law in the country.
The court further declared illegal all appointments made since Nov. 3, 2007 by former Chief Justice Abdul Hameed Dogar. Even Dogar’s appointment by Musharraf as the chief justice of Pakistan was declared unconstitutional in the decision. The court ordered that Dogar’s appointments would cease to exist with immediate effect. The relevant portion of the judgment is quoted toward the end of the statement.
One of the important aspects of the judgment is an addition to the Judges’ Code of Conduct. In the judgment the court said: “In the Code of Conduct prescribed for the judges of the superior courts in terms of Article 209 (8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any unconstitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution.”
The judgment sets a great and novel precedent in dealing with military dictators and even elected heads of state that arbitrarily deal with the Constitution of their states and make appointments to constitutional offices to match their political ambitions, thereby defying the norms of the separation of powers.
Since Pakistan’s independence in 1947, military dictators have usurped power by arbitrary and unconstitutional means. Suspending the Constitution was justified and validated by the courts by misinterpreting the doctrine of necessity. The new judgment poses a barrier for such abuse of authority. The doctrine of necessity will itself need to be revisited in the light of the present judgment.
From the point of view of the rule of law in Pakistan, this judgment is a landmark, as the rule of law cannot operate if the rulers disturb constitutional orders. Such disturbances adversely affect all the aspects of proper administration. Consequently, the peoples’ faith in the Constitution and the rule of law are seriously damaged by such actions. Constitutional abuse may be brought to a final end if the court upholds the present judgment.
Judges who succumb to the pressures of the executive branch of government are themselves a curse on the independence of the judiciary. The amendment to the Judges’ Code of Conduct incorporated by the Supreme Court of Pakistan term any such actions in the future as misconduct, as defined by the rules binding the functioning of judges in the country. The measure provides a barrier against political attempts to divide the judiciary.
It can now be said that the Supreme Court of Pakistan has proved itself competent and capable of dealing with threats to judicial independence. Thus, it may also be said that the judiciary of Pakistan has come of age
The complete text of the Supreme Court’s judgment is available at: http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/07-Text-of-Supreme-Court-judgment-ha-04.
Sourse:Constitutionalism wins over militarism
Filed under: corruption, human rights, justice, Pakistan, politics, rule of law, violations
