Honourable Justice Iftikhar Muhammad Chaudhry 29 August 2007
The Chief Justice of Pakistan
The Supreme Court
Islamabad
Pakistan
Honourable Chief Justice,
Re: Review Petitions (3) filed by the Lawyers' Forum
A four judge bench of the Supreme Court has requested you to constitute a larger bench of seven judges to hear the Review Petitions of the Lawyers' Forum. I understand that the Lawyers' Forum have filed three petitions to review earlier decisions of the SC that allowed: 1) General Musharraf to hold two offices at the same time i.e. the office of COAS and the President of Pakistan; 2) upholding the 17th Amendment to the Constitution; 3) and upholding the legitimacy of the LFO and its incorporation into the Constitution through the 17th Amendment.
Amendment to the Constitution are invariably the product of compromise and accommodation between various political parties in the parliament in order to assemble the requisite 2/3 majority to pass the amendment. But the 17th Amendment was the product of deception and blackmail. General Musharraf first gave himself a five year tenure as President through a referendum, then used his position to assemble a 'King's Party' that predictably secured the most seats in the National Assembly. He negotiated a deal with the MMA acting as the leader of the PML(Q) while he was in uniform; in exchange for a public promise to relinquish the office of the COAS within a year, he secured the support of the MMA to the 17th Amendment. He betrayed the people and the MMA and refused to relinquish the office of COAS as promised. He flagrantly violated military discipline by engaging in party politics. Since he has been the COAS himself, he was not prosecuted for this gross violation of law that should have led to his dismissal from the Army. While the military is constrained; the Supreme Court is under NO such constraint. As a former soldier myself I appeal to you that in order to safeguard the institution of the 'political neutrality' of public servants, he should be held to account by 'suo moto' action if no such request (apart from this letter) is received.
All the three petitions made by the Lawyers' Forum are interlinked. The Supreme Court gave General Musharraf three years of time in which to make such institutional changes that would preclude the return of a Chief Executive into office who has been dismissed for corruption and misuse of power. He 'fulfilled his mandate' by introducing the LFO, manipulating the elections and securing the 17th Amendment. After eight years instead of the three the Supreme Court gave him, the extent of his failure is that he is now being blackmailed by one of the dismissed Prime Ministers into facilitating her return to power through further constitutional amendments. Politics should be about the people not the politicians. But in Pakistan, the political establishment is focussed on the interest of politicians; the leading ones among them are virtually the agents of hostile foreign powers. Clearly, General Musharraf and his military solution has not just failed but worsened the situation. It is only the fresh air of judicial activism since 20 July that has restored the faith of the people in Pakistan as a state and given them hope that the integrity of the 'institutions of the state' could also be restored.
I appeal to you to preside over the larger bench of the Supreme Court to hear the three petitions by the Lawyers' Forum yourself. The LFO and the 17th Amendment has increased the number (including unelected female members) in the parliament and the perks of politicians offering little to the people except increased civil-military tension. Since there is nothing in the 17th Amendment that solves any problem and it has turned out to be the product of deception and betrayal, it should now be held to ultra vires of the spirit of the Constitution. It may be ordered: 1) that General Musharraf holds the office of the COAS illegally as his tenure expired the day he completed four years as COAS in 2002; 2) that he holds the office of the President illegally as his tenure of five years expired in April this year on the fifth anniversary of the referendum; 3) that he is ineligible to contest the election for President as he must wait two year after his retirement from the army to be a candidate for political office;4) that the military investigate the violation of military discipline by General Musharraf and take appropriate action.
While declaring the 17th Amendment to be violating the spirit of the Constitution and ordering that General Musharraf relinquishes the office of the President and COAS, the last mentioned action is just as important as it would enable the military to redeem itself in the eyes of the people.
Respectfully submitted
Brigadier (retd) Usman Khalid
3 Blacklands Drive, Hayes (Mddx) UB4 8EU