“Non-Maintainable”: What did the Pakistan Supreme Court mean?

Posted on September 29, 2007
Filed Under >Saleem S. Rizvi, Law & Justice, Politics
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Saleem S. Rizvi

By cleverly tiptoeing around the land mine of constitutional issues relating to General Musharraf’s electability in uniform and his second term as president, the majority of the nine- judge bench of the apex court has rendered a decision purely wrapped in legal technicalities.

ATP Poll on Musharraf and Polls In simple words, the majority of the bench has said something to the effect that the legal questions pertaining to General Musharraf’s right to simultaneously retain the office of president and army chiefs, the constitutionality of his running for the second term, and whether he can be elected by outgoing assemblies is simply not our headache.

In other words, the Bench seems to be saying that the current political mess was created by the politicians in the first place, and it ought to be sorted out in political institutions not in the Supreme Court: This monster is not our creation.

Having used a technical term such as “non-maintainable”, the majority managed to pull the apex court out of a perilous situation between the rock and the hard place, but the real question is whether the apex court gave any consideration to pulling the nation out of even greater constitutional turmoil currently facing the country. History most probably will answer this question in the negative.

It is vital to understand that the majority opinion did not say that the petitions against Musharraf have no merits and therefore the general has the right to keep his uniform on, while getting himself elected by the expiring assemblies, as misinterpreted by many newspaper headlines, it simply said that under the Constitution, these sort of petitions may not be adjudicated on their merits in the Supreme Court. Doesn’t this type of constitutional short cutting raise more questions than answers? Does it mean the spirit of the Constitution has once again been sacrificed at the altar of constitutional literal fundamentalism?

In this back drop, various other questions beg for prompt answers. If the main issue was strictly about the maintainability of the petitions, then why did the Bench squander so much precious time on issues beyond the main issue? In plain language, if the Bench had any initial concerns and reservations as to whether these sorts of petitions can be filed and adjudicated in the Supreme Court, then why didn’t the Bench focus on such vital issues in the first place? Why did the Bench not direct the lawyers to address solely the maintainability issue, instead of allowing the arguments to be dragged on for almost two weeks and constantly dancing around the merit of the petitions, while seemingly enjoying exchanges of political remarks? Wasn’t time of the essence?

The current ruling of the nine-judge panel, being viewed as highly controversial, will certainly not be of any help to defuse the ever expanding crises in Pakistan. The political and constitutional storm currently engulfing Pakistan are a constant source of anguish and concern for Pakistanis living in the country and abroad. While the leadership in the neighboring countries is busy helping their people on the road to prosperity and development (By 2025, China and India will have the world’s second and fourth largest economies), the Pakistani government is negligently absent from foreign and domestic platform of public importance. The entire government machinery has been completely bogged down in a dangerous power game for many months, just to save the men currently in power, and leaving important national and international affairs unattended.

While world leaders, currently meeting and representing their nations at the United Nations, Pakistan’s absence at this vital event is indicative of how badly Pakistani external affairs are being handled. The situation with internal affairs is no different either. No new policies and initiatives are in sight to combat mounting national challenges. The costs of essential commodities are getting out of reach. Both foreign and domestic investors are scared to invest in the country. The law and order situation is at the brink of complete collapse, and insurgency around the borders is ever increasing . . . just to name a few. The people of Pakistan and the Pakistani Diaspora alike are increasingly becoming worried about the future of their homeland.

Pakistan, at the moment, is facing extremely dangerous constitutional and political crises of an unprecedented magnitude. In this context, it is equally disturbing that in the name of notions such as “ground realities” and “political transition” the government machinery, while fully deployed in pursuing ruthless tactics, still trying to convince the masses that all will be in order and they are taking decisions “in the best interest of the country and people of Pakistan.”

Doesn’t this line of unilateral declarations sound familiar, frequently uttered before every national disaster in Pakistan? Aren’t the efforts to manipulate the system to produce a controlled outcome, in secrecy and behind the public’s back, inherently undemocratic and suspicious? Are we still living in a tribal society, devoid of any public accountability?

Pakistan and the people of Pakistan are not the personal property of the few in power, about whom they can go about making arbitrary decisions on their own without public engagement. The plethora of recently taken extra judicial actions by General Musharraf & Co. leaves no doubt that the days of preaching “Enlightened Moderation” are over. Doesn’t the Pakistani general along with his partners in power stand fully exposed? The mantra of “Enlightened Moderation” while being highly pleasing to the ears of its foreign clients, turns out to be nothing more than a deceiving veil obscuring the face of an inherently illegal and coercive regime. Evidence clearly suggests that what is now being practiced by the general and his regime is the brutal deployment of various unconstitutional measures, may collectively be called “Blatant Extremism.”

There is a great degree of consensus among legal experts in Pakistan and abroad that the current political and constitutional crises in Pakistan are the direct consequence of Musharraf’s ultra vice actions. The current ruling of the Supreme Court did no address the main questions pertaining to his uniform and his second term as president, and the issues are still unresolved resulting in more confusion than ever before for the general public.

One of the hopes for finding a true solution to the recent constitutional crisis in Pakistan still rest on any future legal struggle for having Musharraf’s actions declared ultra vice by the Supreme Court. Once that is accomplished, his actions can be declared null and void and the nullification will be ab inito, that is, from the inception, not from the date of findings. It may be a long road, but it is probably the right one.

In the face of an informed public, the present junta will not be able to retain its illegal hold on power for long. One has to be a little patient to enjoy the fruit of the right struggle! The ruthless application of “the end justifies the means” dictum must come to an end. The hard working and patriotic people of Pakistan do not deserve the suffering resulting from the hostilities, turmoil and agony of the present situation.

The writer, after receiving a Master of Laws degree in International law from Columbia University, New York, has been practicing law in the US for over 17 years.

34 responses to ““Non-Maintainable”: What did the Pakistan Supreme Court mean?”

  1. Haris says:

    I feel that the SC under the pressure from secret agencies prolonged the case to give time to Mushi (may Allah’s curse be on him) so that people remain engaged in the case as long as possible and then they will have as less time as possible to do any backup plans.

  2. Viqar Minai says:

    Everyone I know, who saw the coverage, saw the govt use the danda. You’re the first one to note that it was being used by the lawyers and journalists.

    Justice Wajih’s lack of executive experience is not an issue. In the Pakistani parliamnetary system, the executive powere lies with the prime minister for the most part. The president has only certain constitutional executive powers.

    Pakistan cannot develop its human assets as long as the armed forces eat away the major chunk of the budget. Defence budget has nearly Rs 10 for every rupee allocated for education and health care.

    The only person justifying state terrorism in this forum is you.

  3. dawa-i-dil says:

    ..the 3 brave judges not went aginst the constitution ….bu thse blessed souls …uphold the “Spirit of Constitution ” which says that ..in democatic system..an army ruler cannot be a president or candidate of presendial offce….

    actually ..its just like the above robber example….a army ruler is sitting in the house with guns…..

    by the rule of De Facto….what can you do ….better to give him a “save Passage” …so that this De Facto rule will eventually change into De Juro rule…

    6 honurable judges decded the case by above mentiod De juro rule ..and

    3 honurable judges decide the case …according to Spirit of Constitution….

    thats the only difference….

    but again …its time to use De juro…to have something rather than nothing…..


  4. dawa-i-dil says:

    ..law is always organic..means changes with time…..

    and now time is saying that …for the betterment of country…its necesarry ..not to make any hurdle ..in going out military ruler..thats why judges interpreted it ..in theis regard….

    but see ..3 judges wen aginst….

    i again say…..its just like that..a robber comes into any house ..and say to the owner that.. i will only loot money..but if you resised…the honour of women in the house also will be in danger….
    so better to loot him ….money rather than honour ….

    similarly….if the ruler is asking way out ..from uniform..its the responsibility of the 9 honurable judges ..to decide the fate of 16 crore people and Pakistan…sensibly…..

    otherwise…you know pakistan’s history…whats happened to it..in past 60 years…

    No no ..its not nazria zaroorat ..in my humble opinion…..
    justice javed iqbal time and agin said that ..the decison will not be of nazria zaroorat….

    actually nazriya zaroorat came every time ..to “VALIDATE ” and “LEGATAMIZE” any army ruler when he comes….

    this time an army ruler is GOING out…..

    and if the judges had become TARZANS yesterday…then…may be we have again 10 years MARTIAL LAW….

    i am not saying that it was an ideal decison…but its better to have something..rather than nothing..thats way..i think so…

    and they exactly did thier job according to law….

    do the constitution of Pakistan ..not says that General Musharraf can hold 2 offices until 15 november…2007….

    they not did any political decision…..

    the honurable judges gave the decison exactly according to the Constitution of Pakistan….

    thast why they time and again said that…we have not put this uniform to President ..Parliment did that..why you people come to us..go to Parliment…make 2/3 majority and kick the uniform bill out of Parliment….

    the 9 honurable judges of SC of Pakistan almost completed thier case about 12 pm noon…and then announced it on 3;30 pm….

    if 30 min. of Jumma Prayers..you can imagine ..for 3 hours..they burnt thier nerves ..and nuerons to take this difficult and un popular decison….

    3 hours is not a short time…you can yourself imagine..how difficult it is when 9 people have to decide about the future of whole country and 16 crore people

  5. dawa-i-dil says:

    though 3:30 pm Friday was a sad moment rather shocking…

    but later if we think into this matter ..some deep insight ..things are not simpler as they sems to be….

    9 honrable judges have to decide about the fate of 16 crore people…you cannot imagine..how much pressure was on thier shoulders ..yesterday ..virtually they were walking over a tight rope…..thier one movement of pen coud change the history of Pakistan….

    We have observed 9 honurable judges throughout in past 6 months in newspaper…..

    some of them which favoured General Musharraf are eally very good and brave judges ….and did excellently for the human rights violation cases of Missing people….and other price increasing cases….like

    * Justice Javed Iqbal
    * Justice Javed Buttar
    * Justice Falek Sher

    etc etc….

    Justice javed Iqbal took bold decisons on Missing people case….and price increasing attitudes in Islamabad….

    Justice Falek Sher alongwith Justice Ramdai …ordered to destruct the 11 storey Masood Hospital…on Ferozpur Road Lahore ..although the NGOs were indulging the sifarish of president and Prime Minsiter of pakistan…

    Justice Buttar .a very brave judge ..indeed..brother of Dr Amna Buttar..who was mishandeled b police in Islamabad in procession n favour of Chief Justice….Justice Buttar gave the most vigorous remarks against Musharraf in CJ case…..

    all 3 judges ..yesterday favoured the Government….

    If we think for a bit……what had happened if they would have decided against the President….and why …..

    * do constitution of pakistan not allow him to wear uniform till 15 November,2007

    * do 17 ammendment is not part of Consitution….

    * do 2/3 majority not allowed Musharraf to have dual offices of presidency and Army chief…

    * do 2 SC decisions not validate…dual office principle….

    That why during 11 days …all judges unanimosuly said that ..what we can do now…your own Parliment ..the most supreme instituion of any state ..by 2/3 majority has passed bill in Musharraf favour ..why you lawyers and poiticians ..not go to Parliment and ammend the 17th ammendment and kick out it..or 270aa which validates ..all Musharraf acts….

    Justice Javed Iqbal said the historical sentence….If Parliment is a lame duck…then Supreme Court has no any power injection to made this lame duck ..a lion !!!!!!!

    what a slap..honurable judge made on the bloody…hypocrites..halwa eaters…diesel smugglers…traitors ..sitting in Parliment and receiving 3 lakhs per month with cars..free telephones..and free residencies….

    what the hell these ..politicans did in last 5 years for the people whom they were reperesentin in the assemblies..just go musharraf go slogans ..and deals ..and hypocrisy…..

    all 160 millions people are dozing .. enjoying Mast Mol…and giving all pressures to only 9 men..just 9 men..what a shame…..

    Judges could become TARZANS yesterday..but what would be the result then….

    * Martial Law
    * Emergency
    * Dissolution of Assemly and extending them to 1 more year.

    In all 3 cases what will happen…again we will be back at 1999 …..by de railing the process of Militarization to civilan set up….

    That why on 5 September 2007..on first day..when CJ Jusice ifthikhar said when he was on first day listening this case ..he said to Akram shaikh repersenting Qazi Hussain …he said….

    Akram sahab ..do you want to de-rail the whole system…which is about to to turn into total civilian one..on 15 November just after 2 months……..

    and this one sentence ..shows how the honurable judges of the honurabe Supreme Court of Pakistan…..are thinking about the future of pakistan….and its future dangers…..if they will not decide the case sensibly….

    and i strongly belive that..6 judges also did the same thing yesterday..for the upcoming better of Pakistan…..though it was a bit sad at the moment….but in my humble opinion..will be good…in near future ..if not rejoicing at the time being…..

    having said all this…..

    a brave and hearty salute to 3 brave judges who opposed the majority decision..and proved that they are Justiec Carnilas …followers….and once again ..one and only ..a man with unbeatable respect and repute..Justice Rana Bhagwandas ..in his last case of his 40 years brilliant career..again prooved .that no doubt ..he is one the most brigtest stars ..of pakistan judicial history…..as he is going to retire on December 2007….

    plus…salute to brave Justice Shakurullah Jan and 3r honurable judge….all were from smaller provices ..and once again proved thier loyalty and bravery ….

    History will never forget these 3 brave judges

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