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05 August, 2009

AHRC: Pak judiciary comes of age, death blow to militarism.

The Asian Human Rights Commission, Hong Kong, says in a statement:

On 31 July 2009, fourteen judges of the Supreme Court of Pakistan, led by Chief Justice Mr. Iftikhar Muhammad Chaudhry, added a golden page to the global history of the judiciary by protecting its independence and upholding the constitution.

In delivering a judgment on two constitutional petitions, filed by the Sindh High Court Bar Association and Advocate Nadeem Ahmed, the Court reversed the arbitrary orders issued by General Mr. Parvez Musharaff, who had suspended the Constitution of Pakistan on 3 November 2007. The Court also held that the Provisional Constitutional Orders of November 2007, promulgated by Musharaff, were unconstitutional. The Court declared that the acts of the former dictator were serious impediments to the functioning of the judiciary as well as to 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. His appointment was also declared unconstitutional. The Court while disposing of the case, held that the appointees of Justice Dogar will cease to hold office 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 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. The dealings with military dictators and even elected heads of states, who arbitrarily interfere with the constitution of their states, make appointments to constitutional offices to match their political ambitions, defying the norms of the separation of power will be aborted.

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 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 a landmark. The rule of law cannot operate if officials upset the constitutional order. Such disturbances adversely affect 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 as 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, labels any such actions in the future as misconduct. They are defined by the rules binding the functioning of the judges in the country. This measure will provide a bulwark against political attempts to divide the judiciary.

It can now be said that the Supreme Court of Pakistan has proved itself competent and capable in dealing with threats to judicial independence. The judiciary of Pakistan has come of age.

The complete text of the judgment is available here.

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