Musharraf, who seized power in a military coup in 1999, ousting an elected government led by Sharif, has enjoyed the strong backing of the United States, especially after he agreed to be an ally in the ‘war-on-terror' in neighboring Afghanistan.
Though he took care to have himself elected President in October, before stepping down as army chief, the unexpected outcome of the elections has considerably weakened his position and claim to legitimacy.
The restoration of the pre-Nov. 3 judiciary through a National Assembly resolution will result in nullification of the constitutional amendments made by Musharraf in his capacity as the army chief and their subsequent validation by his hand-picked Supreme Court bench.
Aitzaz Ahsan, president of the Supreme Court Bar Association, told IPS: "The passing of the parliamentary resolution in a span of one month of the formation of their government would further corner Musharraf who would be left with hardly any option to avert his ouster. Although he continues to insist that the deposed judges could not be restored, the fact remains that he would be helpless to block their restoration by the new parliament.'
Experts differ on what it would take to reinstate the judges -- a simple executive order or a parliamentary resolution. In the case of the latter some opine it would call for a two-thirds majority.
Malik Mohammad Qayyum, Attorney General of Pakistan, told IPS: "As far as the constitution is concerned, the deposed judges can't be reinstated through a mere parliamentary resolution, and a two-thirds majority is a must. And the winning parties' decision to do it, come what may, will mean a direct confrontation between the parliament and the presidency which could severely damage the present democratic dispensation."
On the other hand, acknowledged constitutional expert and former attorney general Fakhruddin G. Ebrahim says that a mere parliamentary resolution is enough to nullify Musharraf's provisional constitutional order (PCO) of Nov. 3. "A two-thirds majority is needed to nullify a constitutional amendment and not an illegal action," he said.
Elaborating, Ebrahim said the judges were sacked by Musharraf as army chief without any constitutional authority and in defiance of an anti-PCO ruling given by a Supreme Court bench hours before the actual proclamation of emergency. Musharraf had resorted to this course of action when faced with the possibility of an adverse ruling by a Supreme Court bench on his candidacy for president. All of these, said Ebrahim, can be reversed by a simple executive order or a parliamentary resolution on a simple majority.
But the issue may not end with the reinstatement of the deposed judges. According to Ahsan all unconstitutional actions by Musharraf, including his qualification as the presidential candidate and the Nov. 3 emergency, would be scrutinized by the restored judges of the Supreme Court as they were doing before their ouster. "What will be the consequences of these adjudications is abundantly clear even now,' he said.
Highly placed insiders in the PPP and the PML-N confided to IPS that the two parties have decided that after the restoration of judges, the ruling coalition would request Musharraf to step down. If Musharraf refuses, the new ruling coalition would initiate impeachment proceedings.
Giving his reaction, presidential spokesman Maj Gen (retd) Rashid Qureshi told IPS: "President Musharraf is determined to complete his five-year constitutional term and will not resign come what may, under any circumstances."
According to Qayyum, any move by the new parliament to reinstate the deposed judges could be instantly struck down by the incumbent judges of the Supreme Court.
However, said Ahsan, any move by Musharraf to seek help from his hand-picked judiciary is bound to evoke resistance from a charged-up legal fraternity that will no longer have to face police batons and teargas once a friendly government is installed.
Asked about the possibility of Musharraf using the discretionary constitutional powers vested in him as the president to dismiss the assemblies, Ahsan said: "The dissolution of the National Assembly so soon after the elections is simply out of question, especially at a time when the army high command has already distanced itself from the President."
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Albion Monitor March
10, 2008 (http://www.albionmonitor.com)
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