The Emergency declared by Pervez Musharraf in Pakistan must be the strangest Emergency ever declared in the catalogue of such emergencies by authoritarian rulers. For the first time an emergency has been declared because an activist judiciary is accused of having created conditions by which government cannot be carried out in accordance with the constitution.
In the predominant part of the official text of the proclamation, Musharraf complains that some members of the judiciary were working at cross purposes with the executive and legislature; of increasing and constant interference by them in government policy and functions, including that of combating terrorism by ordering the release of militants; of taking over the administration of the government. He complains of the order of the country’s Supreme Court nullifying his order of suspension of Chief Justice Ifthikar Chaudhary and the humiliating treatment being meted out to government officials by the judiciary during court proceedings, which had demoralised the bureaucracy.
It does not require much political acumen to conclude that the real intention of the Emergency is to muzzle the Supreme Court which, it was apprehended, would pronounce an adverse verdict on Musharraf’s election as president in the next week. The actions which followed the proclamation amply prove this.
Immediately after the proclamation, a bench of seven judges of the Supreme Court declared it illegal. We do not know how and at what time this bench took cognisance of the proclamation. Musharraf retaliated by dispensing with the services of Chief Justice Ifthikar Chaudhary and placed him and six other judges under house arrest. Later Justice Hameed Dogar, fourth in line of seniority, was administered the oath as chief justice by Musharraf under the new provisional constitutional order. The government also appointed new chief justices of the Sindh, Lahore and Baluchistan high courts simultaneously. Later Chief Justice Dogar revoked the order of the seven-judge court declaring the Emergency illegal and cancelled the hearing of the cases pending in the Supreme Court against Musharraf.
This is the most surprising and bizarre development in the history of the judiciary of Pakistan. In the past, the Pakistan judiciary, with rare exceptions, had displayed a general timidity and compliance to the regime of military rulers of the country that had governed Pakistan for all but 12 years. The judgments of the Supreme Court were protective of the military rule and unresponsive to the basic rights of the citizens by inventing recondite doctrines of revolutionary legality and state necessity to legitimise military rule.
In 1958, in what is known as Dosso’s case, the Supreme Court ruling on the legality of General Ayub Khan’s usurpation of power, evolved a novel doctrine of revolutionary legality to legitimise the seizure of power. Chief Justice Munir said, “Where revolution is successful it satisfies the test of efficacy and creates a basic law creating fact.” The court went on to hold that fundamental rights were unenforceable because of the military rule’s ban on writs against the government. This case helped to legitimise military rule for more than a decade.
On April 1, 1969, General Yahya Khan declared martial law. In 1972, the Supreme Court in the Asma Jilani case disowned the test of revolutionary legality but held that recourse could be had to the doctrine of necessity of the state, as ignoring the necessity would result in disastrous consequences to the body politic. General Zia’s military takeover was legitimised by the Pakistan Supreme Court in Begum Nusrat Bhutto’s case in 1977, with the court taking refuge in the doctrine of necessity. In Z.A. Bhutto’s case in 1978, the Supreme Court declined judicial review as a logical corollary of the doctrine of necessity.
Finally, the military takeover by General Musharraf on October 12, 1999 itself was again upheld by the Supreme Court in Syed Zafar Ali Shah’s case on the basis of the doctrine of state necessity, the court holding that this military rule was only a constitutional deviation for a transitional period to enable the chief executive to achieve his declared objectives.
Against this background of a generally accommodating Pakistan judiciary, General Musharraf must have had compelling reasons to distrust Chief Justice Ifthikar Choudhary when he ordered his suspension in March 2007. This was a blunder even by the standards of the country’s military rulers. It galvanised the lawyers and divided civil society against him. In the process the credibility of his plans to restore civilian rule was gravely undermined, both nationally and internationally. When, in July, the Pakistan Supreme Court in a rare display of grit nullified Musharraf’s order suspending Chief Justice Ifthikar Chaudhary, the general seemed to acquiesce in it. He possibly hoped that his act of appeasement would create a favourable atmosphere for a verdict in his favour on the challenge mounted by a hostile community of lawyers to his election as president.
For a while Musharraf had reason to be optimistic. No immediate action was taken by the Supreme Court on his defiance of the court’s order allowing Nawaz Sharif to return to Pakistan from his compulsory exile. A petition challenging the election commission’s acceptance of Musharraf’s nomination as president was rejected by the Supreme Court on technical grounds leading to strong criticism of the court by lawyers. Musharraf’s election as president was allowed to be held without any order of the court stopping it while it continued to hear the petition against the general for three weeks, thereby suggesting that the election was a fait accompli. But early last week the court pulled up the government for deporting Nawaz Sharif and defying its order. Court hearings and probably secret intelligence indicated that the majority of the court was likely to hold Musharraf’s election as president illegal. If this had happened, it would have irreversibly damaged his position and endangered his own safety after he ceased to hold power. Hence, his Proclamation of Emergency to “safeguard” the nation is against an activist judiciary.
After all this, one may have to revise Hamilton’s famous statement that of the three branches of government the judiciary is the weakest, having neither the power of the sword nor of the purse. The Pakistan experience shows that it required an Emergency to control the judiciary. (Courtesy: Indian Express, November 7, 2007)
----The writer is a senior advocate, Supreme Court, and former Solicitor General for India