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“BY a majority of ten to three, this Constitution Original Petition No. 21 filed by Mr. Justice Iftikhar Muhammed Chaudhary, the Chief Justice of Pakistan, is allowed as a result whereof the above-mentioned direction (the Reference) of the President dated March 9, 2007 is set aside. As a further consequence thereof, the petitioner Chief Justice of Pakistan shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.” As Justice Khalil-ur-Rehman Ramday, the Supreme Court Judge who presided over the full court that heard Chief Justice Chaudhary’s petition, read out these words, you could hear a pin drop in Court No 1. As the 13 Judges departed one by one through their own special door, the silence continued. Maybe the clunky prose of the verdict meant that the words were taking time to sink in, but it was more likely that the 500 lawyers and members of the public who had jammed into the courtroom remained stunned for what seemed like interminable seconds before the room broke into a long, thunderous applause.
“The judicial history of Pakistan has been rewritten,” declared Supreme Court Bar Association (SCBA) president Munir Malik, one of Chaudhary’s lawyers , who also led the unprecedented countrywide four-month agitation by the legal community to restore him to the office of Chief Justice. Never before in Pakistan’s history had the judiciary thrown out a decision by a military ruler. This Supreme Court did so, and comprehensively. It set aside the presidential reference against the Chief Justice, it declared President Pervez Musharraf’s order restraining Chaudhary from functioning illegal, his order sending Chaudhary on compulsory leave as ultra vires, and his appointment of an acting Chief Justice invalid. And, in doing so, it changed overnight the way people in Pakistan thought about their judiciary and by extension their politics and governance. “From today, the doors of the Supreme Court are shut to the generals forever. Nobody would dare impose martial law again,” said Ali Ahmed Kurd, a lawyer from Balochistan who played a leading role in the agitation, holding audiences spellbound with his oratorical skills. “Today a new Pakistan is born, and today the generals are on the run.” General Musharraf may not be on the run yet, but the Supreme Court has certainly put all his plans in jeopardy. Only two days before the July 20 verdict he had drawn Pakistan’s political road map for the benefit of the country’s leading newspaper editors. The resurgence of extremism in Pakistan’s northwestern frontier was the country’s main challenge, he told them. A “unified command” was required to tackle it, and to ensure this he would get re-elected at the end of his term later in the year, from an end-of-term Parliament, while remaining “the way I am”. He pointed to his uniform as he said that. The General put a stark choice before the editors: support me in the battle against extremism, or you will be helping the extremists. He did offer one consolation – there would be no emergency; elections would be held as scheduled. Two days later, the Supreme Court was to pronounce its verdict in Chaudhary’s case, but Musharraf mentioned this only in passing – “we have to accept it and move on”. In retrospect, it appears he believed the judgment, even if it gave him only a partial victory, was not going to change the big picture. Given the Supreme Court’s history of bowing before military rulers, even Chaudhary’s lawyers did not expect such a verdict. On the penultimate day of the hearing, Aitzaz Ahsan, lead counsel for Chaudhary, urged the court not to “negotiate a halfway house” in order “to give something to me and something to them.” He said this pointing to the lawyers for the President and the government. His plea was born out of the certainty in the legal community that the Supreme Court would reinstate Chaudhary, but uphold the reference against him, ordering that it be heard in the Supreme Judicial Council. In the event, it was a clean sweep for the Chief Justice. Commentators saw in the verdict the restoration of the rule of law. “The message is very clear. It is the law and the Constitution and not the individual, however high, mighty or well armed he may be, that will prevail. An independent judiciary is no longer a constitutional commitment or a dream, it is a self-evident reality,” wrote Khalid Jawed Khan in The Dawn. The verdict immediately altered Pakistan’s political landscape. Nawaz Sharif, leader of the Pakistan Muslim League (N), or PML(N), and Pakistan People’s Party (PPP) leader Benazir Bhutto have announced their plans to move the courts to facilitate their return to Pakistan before the elections. For Musharraf, the road that looked so easy just a few days ago is now strewn with big boulders in the form of possible legal challenges to every one of his actions. Under the Constitution, Musharraf has to be elected between September 15 and October 15, “not earlier than 60 days and not later than 30 days” before the end of his term on November 15. The President is elected by an electoral college comprising members of the National Assembly and the Senate and members of the four Provincial Assemblies. The term of this electoral college ends at the same time as Musharraf’s term, and fresh elections have to be held by January 15. Musharraf has pointed to this awkward calendar as one of the reasons why he has no choice but to seek re-election by the outgoing Assemblies. But the dubious moral and political qualities of such a plan ensure that it is one issue that is certain to be challenged in court. So will his plan to seek re-election in uniform and his holding of the dual offices of President and Army chief. Even if he retires from the Army today and announces that he will contest the election as a civilian candidate, there is bound to be a petition seeking to restrain him as the Constitution bars a government employee from contesting elections for two years after retirement.
Add to this a reinstated Chief Justice, who in his first week back in office urged the people to stand up for their constitution, and you have a political cauldron simmering with uncertainties. In one of his first orders, Chaudhary directed the Election Commissioner of Pakistan to ensure that nearly 30 million people whose names were on the voters list in 2002 but are controversially missing from it this time can vote in the coming general elections. His order came on a petition by the PPP, which alleged that a large number of missing voters were from constituencies that were its strongholds in Sindh province. Retired Judges of the Supreme Court are of the view that judicial propriety will demand that Chaudhary does not sit on benches deciding constitutional issues that have to do with the President. But the general impression is that other judges, inspired by Chaudhary’s example of defying military authority, will emulate him. If Musharraf was worried about Chaudhary’s activism before March 9, he now has to contend with a Supreme Court full of activist judges. Justice Javed Iqbal, faced criticism for having taken the oath of office as Acting Chief Justice only too eagerly the day his boss was restrained, despite his not being the next senior Judge, has been trying to make amends ever since. In these last four months, he has taken on a number of suo motu cases, including rising prices in Rawalpindi. The dignity, intellect and sophisticated wit that Justice Khalil-ur-Rehman Ramday brought to the proceedings of the full court also raised the bar for the judiciary. Not surprisingly, expectations from the court have risen. The legal community has announced that its struggle “to establish the rule of law” will continue. As SCBA president Malik put it, the reinstatement of the Chief Justice was only “phase one” of their agitation; “phase two”, to achieve a civilian democracy, will follow. He has also expressed the wish “that every Judge of the country, regardless of lower or superior judiciary, should become a Chief Justice Iftikhar Muhammed Chaudhary”. The immediate response from a spokesman for Musharraf was that he would abide by the verdict. Prime Minister Shaukat Aziz issued a statement urging “all sections of society” to accept the verdict with grace. Wisely, the government announced it had no plans for filing a review petition. But the depression in the government ranks is all too apparent.
For Musharraf, the only option available at the moment is the hope of re-election through a deal with the PPP, an infinitely more complicated task after the verdict. The electoral prospects of the ruling Pakistan Muslim League (PML), his present political cushion, never too high to begin with, are dwindling with each crisis of the government’s own making.
The popular disbelief of the government’s version of the final showdown at the Lal Masjid and the continuing controversies about the death toll in the mosque exposed the regime’s credibility crisis. A Musharraf-fatigue has induced scepticism and cynicism about even the government’s well-intentioned moves. Benazir Bhutto was reflecting these sentiments when she said the court verdict had taken away the “logic” for a deal with Musharraf, and going ahead with the idea would make her party unpopular. Commentators saw this not as closing the door on the general, but only upping the asking price, and they were right. By the end of July, it was this option that Musharraf was seriously pursuing. Brushing aside presidential ego, badly bruised though it is, he travelled to the United Arab Emirates on July 27, where he met Benazir Bhutto face-to-face for the first time to talk about the deal. The details were hazy at the time of going to press. Officials denied the meeting and PPP spokesmen said they had no knowledge of it. But according to bare-bones details published in the Pakistani press, Musharraf’s insistence on being re-elected in uniform resulted in the meeting ending in a “deadlock”. Benazir Bhutto drew her own red lines: the general must seek re-election from a new Parliament as a civilian. Free and fair elections and a full-fledged democracy are seen as the only cure for militancy and extremism now. Still, no one is using the word “failure” to describe the meeting. In case this option fails, the deteriorating security situation in the North West Frontier and in the rest of the country has given room for speculation that despite his emphatic denials, Musharraf may use the emergency option. But given the current mood across the country, Musharraf’s problems may only worsen if he resorts to such an option, and his international support too would dwindle. Influential opinion-makers in the United States are seeing the restoration of democracy as the only way forward to deal with the extremist threat and are urging the George W. Bush administration to ensure that Musharraf follows this path. In a recent commentary, Teresita C. Schaffer, a former Ambassador to Pakistan who is now with the Washington-based Centre for Strategic and International Studies, wrote: “[T]he only chance to deal with the threat extremists now pose to basic law and order as well as to Pakistani society is to mount a long-term, skilful, relentless campaign that rests on political legitimacy and integrates both civilian political leadership and the Army’s operational abilities.” Teresita Schaffer also advised that “rather than simply sticking to Musharraf like Velcro”, the U.S. should emphasise “the need to respect Pakistan’s law and Constitution, and carry out genuinely free elections to achieve legitimacy and long-term stability” and “put its weight behind an effort to move the Army away from the political centre stage.” Once more in its history, Pakistan stands at a turning point. This time however, in large part owing to the Supreme Court, there is widespread hope that it will bring positive change. As retired Justice Tariq Mahmood, another of Chaudhary’s battery of lawyers, put it, “August 14 was the day we got rid of the English ruler. July 20 will go down as the beginning of the end for the military ruler.”
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