Sat Nov 3, 2007 by Anil Kalhan
The Other Shoe Finally Drops (Dorf on Law)
(Posted at Dorf on Law)
It looks like what has been feared since the spring has actually happened. Echoing the trigger that led to Indira Gandhi’s imposition of emergency in India more than thirty years ago, reports are emphasizing that President Gen. Pervez Musharraf’s imposition of a state of “emergency plus” in Pakistan has come on the eve of the Pakistan Supreme Court’s decision concerning his eligibility to be elected as President. But the Court has been active in other ways this week that have undoubtedly made Musharraf uncomfortable, most notably its strong signal that it regarded former Prime Minister Nawaz Sharif’s rendition to Saudi Arabia to be unlawful and possibly in contempt of its earlier order permitting his return. “[W]e would like to emphasise that the judgment passed in Nawaz Sharif’s case is still holding the field and required to be implemented in letter and spirit,” noted Chief Justice Iftikhar Muhammad Chaudhry, and the Court’s decision in that case was expected this coming week as well.
So it’s hardly surprising that an early focal point of Musharraf’s crackdown — indeed, perhaps the sole and exclusive point — appears to be an effort to sideline the Pakistan Supreme Court:
“The Chief of the Army Staff (General Musharraf) has proclaimed state of emergency and issued provisional constitutional order,” the brief announcement said at 6.10 pm Pakistan time without giving any details.
Under the order, the constitution remains suspended, the federal cabinet ceases to exist and judges will have to take oath afresh.
Dawn news reports that the Army has entered the Supreme Court in Islamabad and has detained Chief Justice Ifthekar Choudhry. [link]
The imposition of a “provisional constitutional order,” to which judges must then newly swear allegiance to remain in office, is an old Pakistan Army magic trick, one that in the past has served as step one in a process that has helped conjure up the illusion, at least superficially, that some measure of constitutional normalcy remains even as the army in practice nullifies the constitution and imposes martial law. In the past, this process has led to the removal of judges who have refused to affirm their loyalty to the new provisional order and, ultimately, to legal validation of military rule itself. Musharraf himself issued a provisional constitutional order after his 1999 coup, and following the purge of five Supreme Court justices who refused to swear their allegiance to him, the Court greenlighted his coup.
However, it seems that on this occasion, the usual script might not be playing out as planned:
All members of the Supreme Court were required to sign a new provisional constitutional order mandating the state of emergency, but 8 of the 11 justices signed an order calling the state of emergency illegal and gathered at the Supreme Court building, said Gohar Khan. [link]
(UPDATE: the Court’s order, which was issued by a bench of seven justices before the Army could put the judiciary on ice, is available here.) Earlier this week, one justice stated in open court that the Court would not be cowed by the threat of emergency. “‘No threat will have any effect on this Bench, whether it is martial law or [state of] emergency,’ said judge Javed Iqbal. ‘Whatever will happen, it will be according to the Constitution and rules … No group should think that it can take the Supreme Court hostage.'” [link] As rumors swirled this week that an emergency declaration might be imminent, newly-elected Supreme Court Bar Association President Aitzaz Ahsan — who reportedly has been arrested — made clear that the Pakistani legal community would resist any such move. If early reports are to be believed, it seems that the justices may indeed be exhibiting such courage in the face of Rangers storming the Supreme Court building.
No word as yet on whether they are welcoming these events in Washington as “not necessarily the worst thing that could happen.” Whatever tepid and disingenuous objections the Bush Administration might now offer to what its pal Musharraf is doing, there seems little doubt that Pakistan has now been left to reap what the Bush Administration has helped to sow.