Courting trouble

Courting trouble

Sudhanshu Ranjan

Pakistan stands at a critical juncture. Backed by popular support, the supreme court of Pakistan is trying to assert its independence. The court’s landmark decision on May 6, halting hearings by the Supreme Judicial Council (SJC) against suspended chief justice, Iftikhar Ahmed Chaudhary, has kindled people’s hopes that democracy may not be a mirage. The supreme court had been playing second fiddle to various military regimes till now, but this judgment could signal an attempt to chart an independent course.
In Pakistan, the struggle for the independence of the judiciary is as old as the struggle for democracy itself. Pakistan has a history of judges being sacked or forced to resign. But the sacking of chief justice Chaudhary is unprecedented. For the first time a reference was made to the SJC by the president. The CJ’s removal (which the constitution does not provide) evoked large-scale protests from the bar as well as public.
The issue of the independence
of judiciary in Pakistan has been
on the national agenda since the
Maulvi Tameezuddin case against
the dismissal of the constituent assembly by governor-general Ghulam Mohammed. In 1958, justice Mohammad Munir upheld the military takeover of the government by general Ayub Khan. In an unconstitutional move, Nawaz Sharif sacked CJ Sajjad Ali Shah in 1997. When Musharraf took over, supreme court judges took oath not under the constitution of Pakistan, but under a legal framework order promulgated by the army.
The Pakistan SC is perhaps the only court in the world to have given legitimacy to military rulers under its novel doctrine of necessity. Apart from the Ayub Khan episode, the SC upheld the coup led by Musharraf under the doctrine of necessity and the principle of salus populi est suprema lex (the welfare of the people is the supreme law). However, the court had the courage to call the coup “a case of constitutional deviation for a transitional period”.
It is heartening that this time the people and bar have stood up to protest. There was hardly any protest in 1997. However, justice Shah was also responsible for his own undoing as he was made CJ because of political reasons. In 1994, the Benazir government rewarded him for being the lone dissenter in the 11-member bench whose order reinstated the Nawaz Sharif government in Punjab in May 1993, and appointed him CJ superseding two senior judges. Even the supersession, unlike in India, did not create any political hullabaloo. Justice Shah antagonised Nawaz Sharif, and also Benazir later, when president Farooq Leghari dismissed her government on various charges and a bench of the supreme court headed by him upheld the dismissal.
In 1997, Nawaz Sharif
introduced several amendments to the constitution. When justice Shah vacated one of these amendments, Sharif successfully manipulated to divide judges. One group of judges questioned justice Shah’s appointment as CJ. Both groups of judges issued separate cause lists. Then the full bench of the supreme court took up the petition questioning justice Shah’s appointment. The Quetta and Peshawar benches of the SC held his appointment in abeyance.
On September 28, 1997, the SC was attacked by members of the Pakistan Muslim League, and the CJ’s direction to the army to provide protection to judges was not complied with. The government dismissed him and appointed justice Ajmal Mian, who had been superseded by justice Shah. In protest, president Farooq Leghari resigned as he did not want to be a party to the unconstitutional act. But the people did not protest.
Against this backdrop, remonstrations against chief justice Chaudhary’s removal signify a noticeable change in the aspirations of the Pakistani people. Justice Chaudhary had ignited people’s hope by taking suo motu action for the release of missing people and was the first CJ to have issued notices to intelligence agencies for giving details of disappeared persons. His judgments in steel mills and kite-flying cases infuriated the government. It is not surprising that Musharraf now faces his biggest challenge.
The writer is a TV journalist.