Supreme Court, Judiciary and Emergency in Pakistan

Source: www.nation.com.pk

The Destabilising Factor	15th November 2007
by Fauzia Wahab

This is not the first time that a state of emergency has been declared in the country. For the last two months, the inevitability of emergency was feverishly speculated in the relevant quarters. With every defying decision by the Supreme Court, its prospectus were brightening up. The newly found independence by the Supreme Court was causing sleepless nights to the general. Unprecedented in the history of Pakistan, the judiciary had stood up to the challenge of time and refused to further toe the establishment's line. The three and half months long struggle for the re-instatement of the deposed chief justice infused a new resolve and spirit in the judiciary. The decisions were no longer aimed at pleasing the power-blocks. They had become independent of any government influence.

People were rejoicing. Expectations were running high among those, who could not find justice at the doorstep of the government. They thought that their deliverer has come. Anybody who could not find solace took shelter in the shadows of the Supreme Court. The aggrieved encamped for the last three months might still be sitting there - 'Waiting'. But for the keen watchers of Pakistan 's politics, it became a matter of time when the drastic step would be taken. The more the chief justice and his brother judges showed independence, the more closer to the possibilities of an emergency emerged. From the Lal Masjid decision to the return of Mian Nawaz Sharif and the acceptance of the petition on the eligibility of the general's elections, were landmark cases that were creating ripples in the corridors of power, but hailed by all segments of the society.

The hearing on the eligibility of General Pervez Musharraf for presidency, in particular, had on one hand enamoured the whole nation, while on the other hand it had unnerved the regime to the extent that the extra-constitutional steps came under serious consideration. A day before, the Supreme Court had decided to change the schedule of hearing in order to give a verdict before November 15 - the day the tenure of the president ends. But before long, the general striked and nipped the bud of the new-found independence of the judiciary. A state of emergency was declared. For the third time the constitution was put into abeyance (1977, 1999), fundamental rights came under suspension, and a new Provisional Constitutional Order was imposed. Consisting of thirteen paragraphs, the proclamation of emergency cites terrorism, religious extremism and negative role of the judiciary as the 'reason d'etre' for the drastic action. But a close scrutiny of the document shows that terrorism and extremism are mere smoke screens, the real threat perceived by them was the growing independence of the judiciary.

Out of the thirteen paragraphs, eight directly pertained to the judiciary. They were blamed for working at "cross purposes with the executive and legislature, increasing interference in government policy and executive function, overstepping the judicial authority, demoralising civil bureaucracy and eroding the tracheotomy of powers". In fact, the proclamation reads more like a charge-sheet against the judiciary than a constitutional document that justifies its promulgation. Another interesting aspect of the document is that it was signed not by the president of Pakistan but by the chief of the army staff, whereas the constitution provides powers to the president alone, in case a "grave situation exist to the security by war or external aggression or by internal disturbance beyond the power of a provincial government." The confrontational path that started on March 9 with the filing of a reference against the sitting chief justice by the general finally culminated into the proclamation of emergency.

During the sixty years of Pakistan's existence, the judiciary had always sided with the establishment. Be it the Maulvi Tamizuddin Khan's case, the Dossa case, the Nusrat Bhutto case or be it the Zulfiqar Ali Bhutto's case, the judiciary always came out in support of the military establishment. Under the 'Doctrine of Necessity', all military take overs were given legal protection, except for Asma Jilani case in which Yahya Khan's military coup d'etat was challenged. The verdict declaring the usurpation of power as illegal came out, however, after Yahya Khan was ousted and a civilian government was in power (1972).

But on July 20, all this was changed. The Supreme Judicial Council headed by Rana Bhagwandas, declared the presidential reference as null and void and re-instated the defunct chief justice. The judiciary had finally come of age. They had stood up to a challenge never encountered before and elevated themselves to unprecedented heights in the eyes of the people. It is no wonder that people, marginalised by our system of governance thronged to them, seeking justice and relieve from them. Consequently, bold decisions were taken. Decisions that were defying. Decisions that were challenging. The government looked helpless and hapless.

Finally, on November 3, the axe fell. Under the new PCO, the courts are disallowed to hold or issue any decree against the president, the prime minister or anyone exercising powers under their authority and all the judges of the Supreme Court and higher courts are required to take fresh oath.

Out of the 17 sitting judges of the Supreme Court, four of them took oath under the new PCO, the rest refused to work under the new instrument of law. The attorney general of Pakistan has announced that the number of judges in the Supreme Court will now be reduced to twelve, and Abdul Hameed Dogar has been installed as the new chief justice. Four more judges from the high courts and the federal shariat court have been carefully chosen for the Supreme Court. They are known for their meek disposition. The establishment, this time, will not take any chance. The Supreme Court has to be tamed in and rendered toothless.

The Bar Associations of the country, however, have refused to lie low. Rejecting the Pe and PCO, they have announced the boycott of the high courts and the Supreme Court. They have vowed to continue their struggle till the constitution is not restored, until then no case will be pleaded before the higher courts. Consequently, the entire bar leadership has been arrested. The first one to be arrested was none other than Mr Aitzaz Ahsan, president of Supreme Court Bar Association and prominent PPP leader, who spearheaded the lawyers' movement and brought it to unparalleled heights. He has been put in solitary confinement, while Muneer Malik, Tariq Mahmood, Ali Ahmad Kurd, Mehmood Khan Achakzai, Qadir Magsi, Khawaja Asif, and other political activists were rounded up either with arrest or house arrest orders within an hour of the PE. They have now been shifted to various jails. The crackdown still continues.

The common man engrossed in his own miseries, has also been dragged into this crisis. He might have never known or felt about the state of emergency, had he been spared from seeing the blank screens of his television. The biggest casualty of the judiciary-military tussle has been the electronic media. Short before the promulgation of the emergency, cable operators were issued orders to stop airing all the eighteen private news channels. The military regime, which took so much pride in conferring freedom of information to the media and the president never hesitated in boasting off about this achievement, strangulated its own baby. The axe of emergency fell heavily on them. Private channels cannot be aired in Pakistan, while the rest of the world can watch them. A new amended PEMRA ordinance has been promulgated and the press media has also been placed under new shackles, providing for more strict rules and regulations on them media.

These can be described as last-ditch measures. Unfortunately, they have more of a triggering than a containing effect on events. It is an admission of failure of governance and has never succeeded in arresting the process of decline. In fact it creates the much feared, destabilising factor in our polity. No amount of cosmetic surgery can hide the damage. Strangely, nobody takes lesson.

The political dynamics of Pakistan has forced most of our rulers to use them as a last resort to save their rule. But for every ruler these measures have turned out to be their undoing. From Ayub Khan, Yahya Khan and Ziaul Haq to Pervez Musharraf, drastic measures such as these were used by all of them, but no one could survive them. Whether General Musharraf will survive this crisis is still a big question? Does he still enjoy the institutional support that brought him into power? Has the judiciary accepted the emergency as fait accompli? These are the questions that need to be answered. Finding solutions in extra-constitutional measures has never helped. The constitution alone has the answers to our problems. It is time that the political forces and the civil society rises to the occasion and let the people in the corridors of power know that their rights will not be allowed to be trampled down again.