The act of November 3, 2007

By

Dr. Ghayur Ayub

I remember, AG Malik Qayum defending the proclamation of semi martial law (it was ladled as emergency-plus) of November 3, 2007 which was imposed by Gen Pervaiz  Musharaf, on a television talk show. He compared its validity given by the Supreme Court on November 7, 2007, to the validity provided by the SC to Gen Musharaf's previous martial law in October 12, 1999. When challenged that earlier proclamation was validated by the parliament through the 17^th Constructional Amendment in 2002, he replied, that the Supreme Court decision remained valid for three years up until the passing of the Constitutional Amendment bill in the parliament. Then, he strengthened his argument by quoting a similar example in the case of martial law imposed by late Gen Zia saying that in that case the SC decision remained enforced up to five years until it was validated by the parliament through the 8^th Constitutional Amendment. 

I am not a lawyer or legal expert, but I presume that what he said was as long as the parliament did not take up the case, the validity of Supreme Court decision taken on November 7, 2007 still stands. It also seems that as that decision has not been tabled by the incumbent Parliament as a Constitutional Amendment bill, the present Supreme Court has the right to revisit it as it deems fit; thus the case is being heard. Examples can be quoted to strengthen such action. According to a news item, the chief justice constituted a larger bench of 14 honourable judges, to hear the case. It is pertinent to note, that all the judges on the bench did not take oath under November 3^rd PCO. For a layman like me what does all this mean? The way I understand it, the Supreme Court has two choices;

1.      It revisits the case (as is been done) in light of the judgment given by seven honourable judges prior to the imposition of emergency-plus, forbidding judges to accept any extra constitutional action taken by  Gen. Musharaf whose validity as presidential candidate was to be heard in the court. According to the legal experts, one of the reasons the present honourable judges are objecting on the constitution of the bench headed by the then chief justice Dogar, which heard the case against imposition of emergency-plus, were themselves the beneficiary of the same order.  This point seems fair and lawful but an equal objection can also be raised against the constitution of the present bench in reverse order; because all the judges now on the bench are those who were removed from their positions by the bench of judges, whose case is being heard, making them the aggrieved party. Although, there is no legal obligation in such a scenario but it carries a moral baggage. That's why; most of the judges decline to take up such cases. The only moral support which can uplift the present judges' persona comes from extensive public sensitivity on this issue and its support for the Judges. 

2.      It takes up the case and discuss all its relevant threads whichever they are and whatever their implication might be. After hearing threadbare discussions by the lawyers from both sides, in the presence of the media, under the scrutiny of the aware public, the supreme court may send it to the parliament for its validation or otherwise. Such a judgment would send a clear message that;

·         the Supreme Court is there to interpret the laws,

·         the Supreme Court may help giving legal guidance and direction construing those laws

·         the legislative work should be dealt by the parliament,

·         The legislative, executive and judiciary are three interlinked but independent pillars of the society, which should work in coherence, for the constructive progress of individual institutions and their relevant components.

Up until now, government, for whatever reasons, showed hesitancy tabling constitutional amendment bill on the issue. After the above mentioned Supreme Court decision, the government will come under tremendous pressure to table it. Once on the floor; the bill will reach its ultimate end as vast majority of the parliamentarians will reject it, dropping a curtain on the scene created by a dictator through an extra constitutional emergency-plus act of November 3, 2007. It will also be a lesson for the future army generals not to take any step outside the constitution which would take them into a bottomless pit.

The end