Here is the text of the ‘short order’ that dismissed the constitutional petitions against the dual offices of General Musharraf.
“For reasons to be recorded later, as per majority view of 6 to 3, these petitions are held to be not maintainable with the contemplation of Article 184(3) of the Constitution.
As per minority view of Mr. Justice Rana Bhagwandas, Mr.Justice Sardar Muhammad Raza Khan and Mr. Justice Mian Shakirullah Jan, all the petitions are held to be maintainable"
Simply put, by a 6-3 majority decision the Supreme Court has allowed a usurping general to follow his election game plan on the basis of mere legal technicalities.
Reality informs us that in the 21st century world military rulers are now a rarity. Therefore when an apex court of a country seemingly turns a blind eye towards a uniformed army chief engaged in grasping the highest civilian office in the land, serious questions are bound to be raised.
Now instead of your Blogger adding his two bits of 'wisdom', it would be more appropriate if the task was left to two of Pakistan’s most respected senior jurists.
Retired Justice Fakhruddin G Ibrahim - who was sacked after refusing on principle to retake his judicial oath under Ziaul Haq’s post-coup Provisional Constitutional Order – was reported having made the following comments:
- “Friday’s decision was not understandable….the Supreme Court should have mentioned, at least, [a brief] reason in the short judgment that on what grounds or under which articles of the Constitution the superior judiciary declared the entire petitions not maintainable.”
- “The petitions couldn’t be rejected only by declaring that these were not in accordance with Article 183(4) … [instead] the apex court should have declared on the very first day that these petitions were not maintainable and there was no need to hang the nation in air for so many days.”
- “The plain rejection of all the petitions without assigning any reason or ground had raised many eyebrows.”
- “In fact, nothing has been decided still and all issues raised in different petitions will be challenged again in a more effective manner now… a better way to fight Musharraf’s rule was that first his nomination papers should be challenged in the Election Commission (EC) and on failure to get justice, the lawyers should then knock at the door of the superior judiciary.”
Not surprisingly a more stinging attack was delivered by the other highly regarded former member of the Supreme Court, retired Justice Wajihuddin - who was sacked after refusing on principle to retake his judicial oath under Musharraf’s post-coup Provisional Constitutional Order. He also happens to have been nominated by the the lawyer community as a rival candidate for the presidency.
Appearing on Dawn TV shortly after the controversial verdict was announced on 28 September, Justice Wajihuddin declared that according to law once a legal decision is delivered it becomes public property. And as such, honest criticism of the decision and the judges involved was quite permissible under law. Having made this point he then embarked on some damning criticism:
- The majority decision was incorrect in law.
- If these six judges had been convinced that these petitions were not "maintainable" then they should have said so at the onset and not wasted time, effort and money by stretching the proceedings for nearly a fortnight and should not have delved into the nitty-gritty of the case by asking so many ‘irrelevant’ long-drawn-out questions from the legal counsels of both parties.
- He also questioned the impartiality of three of the judges supporting the majority decision. According to him they should have recused themselves (Justice Wajihuddin then made reference to the Islamabad Club, where two of the judges are known to have openly dined and socialised with the leading member’s of Musharraf’s legal team in a complete contravention of proper judicial behaviour).
- And, according to him, when the Court earlier rejected the application asking for a full Supreme Court bench to hear the case in view of the public importance of the issue involved, the bench disregarded proper legal procedure by not naming the judges who had supported and those who had opposed this very important ruling.
- He also noted that on two recent occasions - the CJ Case and the Nawaz Sharif Exile Case- when the verdict went against the regime, both Sharifuddin Pirzada and Abdul Qayum had not bothered to await the verdict but had much earlier on opted instead to decamp from the court precincts. However, quite remarkably, on this occasion they both had remained at the Supreme Court (which understandably raises fears of advance notification).
Retired Justice Wajihuddin’s criticism probably proved all too scathing and I don’t think it was re-broadcast by Dawn News during primetime news later that evening.
For the record the three dissenting judges were:
Justice Rana Bhagwandas
Justice Sardar Muhammad Raza Khan
Justice Shakirullah Jan
And those supporting the majority decision were:
Justice Javed Iqbal,
Justice Abdul Hameed Dogar
Justice Muhammad Nawaz Abbasi,
Justice Faqir Muhammad Khokar,
Justice Falak Sher,
Justice M Javed Buttar
As your Blogger is not particularly familiar with the career history of Supreme Court judges, he wishes to share this relatively informative (and quite non-PC) web entry with his readers. It certainly provides food for some thought.
An aggrieved Pakistani by the name of Ammar Qureshi made the following comments on Pakistaniat.Com yesterday:
I did not want to bring in the ethnic factor into this debate, but as a Punjabi I feel really ashamed that 6 Punjabi judges have favored General Musharraf and 3 non-Punjabi judges (one Sindhi Hindu and 2 Pathans) ruled against General Musharraf.
CJ Iftikhar Chaudhry made a big mistake by constituting the 9 member bench in such a manner that it included 5 judges known for their association with the establishment or government:
Justices Nawaz Abbasi and Khokhar had served as law secretary during Musharraf’s time;
Justice Javed Iqbal took the oath of acting chief justice when CJ Iftikhar was illegally suspended on 9th of March;
Justice Buttar gave the verdict in favour of the government during CJ case and against CJ Iftikhar;
Justice Dogar has served as Acting Chief Election Commissioner;
Justice Falaksher was the only judge about whom one was not [sure] whether he would favour the government or not but at the end he also sided with other Punjabi judges.
In your Blogger’s opinion this disagreeable verdict clearly does not provide legal sanction to Musharraf to contest the presidential election in uniform – instead it simply ignores the issue altogether.
As that pathetically supine Chief Election Commissioner, retired Justice Qazi Muhammad Farooq, is bound to reject all the objections raised against Musharraf’s nomination by Justice Wajihuddin, the matter will be raised once again in the Supreme Court on appeal. This time (hopefully)it will not be all that easy for some of these judges to shirk their responsibilities.
Supreme Court of Pakistan