Majesty of law

Three weeks ago I tried to draw a political balance sheet of Pakistan. I thought then, and still do, that the lawyers' movement backed by the civil society and mainstream political parties was a great development. Indeed, army interventions were regressive, pulling the country down. But CJ Iftikhar Chaudhry in a brave act of defiance of General Musharraf on March 9, 2007, gave a new turn to the Pakistani politics. With a brave stand before the general, he became an immediate hero. The lawyers' movement that followed galvanised popular support and things began to move. Exiled politicians came back. General elections were scheduled for January 2008. Many people believed that the establishment would use the tragedy of Benazir's assassination in December 2007 as a pretext to delay elections, but such was the public pressure that in the event they were held, albeit with a few weeks' delay in February and a new, PPP led government was installed. Musharraf stayed as the COAS and the president, but the pressure continued to mount, forcing him to give up his army position and remove his uniform, something that he had publicly resolved never to do as it amounted to take his "skin" off. The public pressure persisted; things became so bad that the army withdrew support and left him no choice but to resign. In the meanwhile, the security situation, especially in the tribal area; law and order, and the economy continued to deteriorate. Nevertheless, politically we were moving forward. Musharraf still there as the president, the public pressure gained momentum, against all odds, for the restoration of the CJ and his colleagues. The CJ, we might recall, was laid off by Musharraf earlier in 2007. By July 2007 the Supreme Court (SC) cleared and reinstated the CJ. A frustrated Musharraf, weakening by the day did not know what to do. Therefore when his case of disqualification came up before the SC (sans CJ), expecting an unfavourable decision, Musharraf suspended the constitution on the November 30, 2007, and detained illegally all the SC judges in their houses. Within days he picked a new, pliant SC who, post haste, proceeded to validate Musharraf's patently unconstitutional/illegal actions one by one. Unfortunately, the new government too began to prevaricate on the judges' restoration in spite of solemn pledges and written commitments. It seemed they wanted to carry on with the "obedient" judges Musharraf had left behind. But they had misread the public mood. By the spring of 2008 people had had enough: they took to the streets, Nawaz Sharif leading. A long march to Islamabad was organised on March 16, 2009. The procession from Lahore, its size and anger, forced the government to back down as the procession reached Gujranwala. So low was the government's morale that at one point it seemed that it was about to collapse. So the judges' restoration followed. People had won: for once, Pakistan had an independent judiciary which had come clean through the turmoil. The restored SC confident of the people's support behind it has given a land mark judgement on July 31, 2009 in the so-called judges' case. Headed by CJ Chaudhry, they have undone Musharraf's actions of November 3, 2007 and declared that they were all unconstitutional, of no legal consequence. For the first time a court has declared martial law illegal, opening the door for Musharraf's trial under Article 6 of the constitution should the state so decide. That wipes off Musharraf's PCO that gave cover to his actions. This included, among a number of actions, the appointment of a pliant CJ (Justice Dogar, since retired on superannuation precipitated by a scandal) and several new judges in the Supreme Court and High Courts across the country. The independent judges had already either refused to take oath under the PCO or not asked to do so for obvious reasons, in effect removing all of them. All that undone with the new judgement, those who were removed have all come back and those who were appointed under the PCO or took oath under it have all had to go home; or appear before the Supreme Judicial Council; some are resigning. The rest of the orders/ordinances, about 37 in number including the notorious NRO, that Musharraf passed from November 3 to December 16, 2007, the period that the constitution remained suspended, will be sent to the Parliament to be endorsed or not in three to four months as provided in the constitution. The ball is in the court of the Parliament. But the biggest blow this short judgement gives is to the doctrine of necessity crafted by the late lamented Justice Munir to justify Ayub's Martial Law used subsequently for justifying military interventions. Whether that prevents a future army takeover remains to be seen. Notwithstanding that, the July 31 judgement of the SC will remain historic, an occasion to celebrate. The writer is a former ambassador at large