Pakistan's judiciary comes of age - militarism meets its Waterloo

By Basil Fernando

(August 03, Colombo, Sri Lanka Guardian) Fourteen judges of the Supreme Court of Pakistan, led by Chief Justice Iftikhar Muhammad Chaudhry, added a golden page in the global history of upholding the constitution and protecting the independence of the judiciary on 31 July 2009.

In delivering a judgment on two constitutional petitions, filed by the Sindh High Court Bar Association and Advocate Mr. Nadeem Ahmed, the Court reversed the arbitrary orders formerly issued by General Mr. Parvez Musharaff. Mushraff had suspended the Constitution of Pakistan on 3 November 2007. The Court also held that the Provisional Constitutional Orders of November 2007 and 37 other ordinances promulgated by Musharaff as unconstitutional. The Court declared that these acts of the former dictator are serious impediments to the functioning of the judiciary as well the rule of law in the country.

The Court further declared all appointments made since 3 November 2007, by former Chief Justice Mr. Abdul Hameed Dogar, as illegal. Justice Dogar was appointed by Musharaff as the Chief Justice of Pakistan, an appointment, that was also declared unconstitutional in the decision. The Court while disposing off the case, held that the appointees of Justice Dogar will seize to exist as judges with immediate effect. The relevant portion of the judgment is quoted towards the end of this statement.

One of the important aspects of the judgment is an addition to the Judges' Code of Conduct. The Court in the judgment said that "in the Code of Conduct prescribed for the judges of the superior courts in terms of Article 209 (8) of the Constitution, a new 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;".

This judgment will be setting a great and novel precedent in dealing with military dictators and even elected head of states who arbitrarily deals with the constitution of their states, make appointments to constitutional offices to match their political ambitions, defying the norms of separation of power.

Since the independence of Pakistan, military dictators have usurped power by arbitrary and unconstitutional means. Suspension of the constitution has been justified and validated by the courts misinterpreting the doctrine of necessity. The new judgment will pose 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 will be considered as a landmark. The rule of law cannot operate if the rulers disturb the constitutional order. Such disturbances affect adversely all the aspects of proper administration. Consequently, the peoples' faith in the constitution and the rule of law are seriously damaged by such actions. The constitutional abuse may be brought to a final end so long as the court upholds the present judgment.

Judges who succumb to the pressures of the executive 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 makes any such actions in the future as misconduct as defined by the rules binding the functioning of the judges in that country. This measure will provide a barrier against political attempts to divide the judiciary.

It can be now said that the Supreme Court of Pakistan has proved itself competent and capable to deal with threats to judicial independence. Thus, it may be said that the judiciary of Pakistan has come out of age.

The complete text of the judgment is available here.-Sri Lanka Guardian