ISLAMABAD - Throwing a serious challenge
to Pakistani President Pervez Musharraf, the two
main victorious parties in the February 18 general
elections have jointly pledged to reinstate all 63
senior judges, sacked for refusing to recognize
his November 3 emergency order.
The Asif
Zardari-led Pakistan People's Party (PPP) and the
Nawaz Sharif-led Pakistan Muslim League (PML-N)
will, as part of a pact, move to reinstate the
judges, including chief justice Iftikhar Muhammad
Chaudhry, within 30 days of the formation of their
coalition government in Islamabad.
Following a marathon session held at the
hill station of Murree, the leaders of the two
parties made their decision known through a press
conference they jointly addressed at the weekend.
They
said the
reinstatement would be effected through a
parliamentary resolution.
"The restoration
of the judges will send a powerful message to the
power hungry dictator that the constitution was
not something that could be changed to protect
one's personal interests. Musharraf is an
unconstitutional president who should quit
immediately while respecting the mandate of the
people of Pakistan who had voted against his
five-year dictatorial rule," the two leaders
demanded.
It was after some dithering that
the rivals-turned-allies swapped concessions and
decided to isolate the president, promising a
tense post-election power transition. The PML-N
has agreed to be part of a PPP-led federal cabinet
in return for agreement to set a deadline for the
restoration of the judiciary.
Musharraf,
who seized power in a military coup in 1999,
ousting an elected government led by Sharif, has
enjoyed the strong backing of the United States,
especially after he agreed to be an ally in the
"war-on-terror" in neighboring Afghanistan.
Though he took care to have himself
elected president in October, before stepping down
as army chief, the unexpected outcome of the
elections has considerably weakened his position
and claim to legitimacy.
The restoration
of the pre-November 3 judiciary through a National
Assembly resolution will result in nullification
of the constitutional amendments made by Musharraf
in his capacity as the army chief and their
subsequent validation by his hand-picked Supreme
Court bench.
Aitzaz Ahsan, president of
the Supreme Court Bar Association, told Inter
Press Service (IPS): "The passing of the
parliamentary resolution in a span of one month of
the formation of their government would further
corner Musharraf, who would be left with hardly
any option to avert his ouster. Although he
continues to insist that the deposed judges could
not be restored, the fact remains that he would be
helpless to block their restoration by the new
Parliament."
Experts differ on what it
will take to reinstate the judges - a simple
executive order or a parliamentary resolution. In
the case of the latter, some opine it would call
for a two-thirds majority.
Malik Mohammad
Qayyum, Attorney General of Pakistan, said: "As
far as the constitution is concerned, the deposed
judges can't be reinstated through a mere
parliamentary resolution, and a two-thirds
majority is a must. And the winning parties'
decision to do it, come what may, will mean a
direct confrontation between the Parliament and
the presidency, which could severely damage the
present democratic dispensation."
On the
other hand, acknowledged constitutional expert and
former attorney general Fakhruddin G Ebrahim, says
that a mere parliamentary resolution is enough to
nullify Musharraf's provisional constitutional
order (PCO) of November 3. "A two-thirds majority
is needed to nullify a constitutional amendment
and not an illegal action," he said.
Elaborating, Ebrahim said the judges were
sacked by Musharraf as army chief without any
constitutional authority and in defiance of an
anti-PCO ruling given by a Supreme Court bench
hours before the actual proclamation of emergency.
Musharraf had resorted to this course of action
when faced with the possibility of an adverse
ruling by a Supreme Court bench on his candidacy
for president. All of these, said Ebrahim, can be
reversed by a simple executive order or a
parliamentary resolution on a simple majority.
But the issue may not end with the
reinstatement of the deposed judges. According to
Ahsan, all unconstitutional actions by Musharraf,
including his qualification as the presidential
candidate and the November 3 emergency, would be
scrutinized by the restored judges of the Supreme
Court as they were doing before their ouster.
"What will be the consequences of these
adjudications is abundantly clear even now," he
said.
Highly placed insiders in the PPP
and the PML-N confided that the two parties have
decided that after the restoration of judges, the
ruling coalition will request Musharraf to step
down. If Musharraf refuses, the new ruling
coalition will initiate impeachment proceedings.
Giving his reaction, presidential
spokesman Major General (retired) Rashid Qureshi,
told IPS: " Musharraf is determined to complete
his five-year constitutional term and will not
resign come what may, under any circumstances."
According to Qayyum, any move by the new
Parliament to reinstate the deposed judges could
be instantly struck down by the incumbent judges
of the Supreme Court.
However, said Ahsan,
any move by Musharraf to seek help from his
hand-picked judiciary is bound to evoke resistance
from a charged-up legal fraternity that will no
longer have to face police batons and teargas once
a friendly government is installed.
Asked
about the possibility of Musharraf using the
discretionary constitutional powers vested in him
as the president to dismiss the assemblies, Ahsan
said: "The dissolution of the National Assembly so
soon after the elections is simply out of
question, especially at a time when the army high
command has already distanced itself from the
president." (See Pakistan's generals come down
hard Asia
Times Online, March 8, 2008.)
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