Judicial Decisions Under Dictatorship: Restoring the Juridico-Bureaucratic Structure

After gaining the stamp of approval from the judiciary, General Musharraf promulgated an order in 2001, titled the President’s Succession Order, declaring the office of the president vacant and therefore it was under his mandate to take on the presidents’ functions until a successor was found.^[1135] General Musharraf then announced a referendum to be held on 8 April 8 2002, for him to be elected as president.^[1136] The referendum was challenged in the Supreme Court, which declared the petition premature and left the consequences of the referendum on the incoming parliament.^[1137]

The Zafar Ali Shah case gave General Musharraf powers to amend the consti­tution and he initiated constitutional amendment packages for ‘sustainable democracy’ and ‘institutional strengthening’. He revived the controversial Article 58(2)(b) which had been removed in the 13th Amendment by the elected parliament of Nawaz Sharif. He formed a National Security Council, putting the chiefs of armed forces together with civilian government officials to give a constitutional cover to military hegemony.^[1138] The amendments were challenged in the Supreme Court, which held that parliament, not the court, was the appropriate forum to consider these amendments.^[1139]

In 2001, the Supreme Court Chief Justice Irshad Hasan Khan was in a position to claim that after the 1999 coup, the judiciary continued its work and retained its independence by exercising judicial review, maintaining rule of law and securing fundamental rights.

In the 2002 elections, an undergraduate degree was a prerequisite to be a can- didate.^[1142] Musharraf’s Conduct of General Elections Order 2002 was challenged before the Supreme Court in June 2002. After three days of hearing, the Supreme Court dismissed the petition in July 2002 and concluded that an educational qualification did not violate the principles of Pakistan’s Constitution or democ­racy.^[1143] The petition also involved issues such as gender, class, faith, religion, language, race, education, etc. but the Supreme Court rejected those. The court found that the ‘right’ to run for a public office to be a statutory right, not a fundamental right. In countering the charge of supporting an ‘elitist democracy’ by this educational qualification clause, the court argued that the business of the state system requires competence. The institutional argument of the court was based not on the character of the officials but on ‘political culture’, which it defined on the basis of David Sill’s article in International Encyclopedia of the Social Science. This, for Cynthia A. Bottern, was very behavioural and led to the argument of education increasing good governance as “the hallmark and soul of democracy”. The writer empirically made clear that this educational requirement made an impact in temporarily daunting its opponents.^[1144] We can recall that the judiciary once again stood with controlled democracy, exclusion and marginalization in the name of education.

Sheikh Riaz, the Supreme Court Chief Justice from February 2002 to January 2004, gave judgments in favour of General Musharraf, including appointments of judges he favoured to the Supreme Court,^{[1145] [1146] upholding the referendum of April 2002,49 and the Legal Framework Order.[1147] The court defended its decision of taking the Oath, declaring that it had three options; either refuse to take the oath, thereby causing court closure, leading chaos/anarchy and denial of justice to the ordinary citizens of Pakistan.}

General Musharraf then created a party, the Pakistan Muslim League-Quaid-e-Azam, by pulling politicians away from present popular parties. Most, if not all, politicians faced corruption cases, and were vulnerable to NAB and the Intelligence Services of Pakistan. Next, he promulgated the Conduct of General Elections Order on 27 February 27 2002.^[1151] Under this law, elections were held on 10 October 2002, followed by allegations of rigging and state interference. His party won the elections. Rational theory followers like Andrew R. Wilder, who analyzed the 1997 elections, were stuck with legitimizing the status quo in the 2002 elections because there were open pre-poll manipulations, bribes and coercion. The reason behind Musharraf's success was an “inability of the politicians to rise above their narrow interests”.^[1152]

An alliance of religious parties (Muthida Majlis-e-Aamal-MMA) was formed and it drafted the 17th Amendment of which the Legal Framework Order was a part.

The 17th Amendment 2003, Legal Framework Order 2002, and President to Another Office Act, 2004 were challenged in the Supreme Court and a five-member bench, headed by Chief Justice Nazim Hussain Siddique, heard all the petitions together. The petitions were all dismissed by a consolidated judgment on 13 April 2005.^[1154] The court stated that the “remedy lay in the political and not in the judicial process”. The appeal in such cases was to be made to the people, not the courts. In the 2005 local elections, even the Punjab judiciary was involved in the rigging. The Chief Justice of Lahore High Court was an active participant.^[1155] Justice Iftikhar Muhammad Chaudhary had already signed the judgments favouring a takeover by the military, an unconstitutional referendum, the Legal Framework Order and a statute know as President to hold Another Office Act 2004.

It is usually stated that the judiciary was under duress and vulnerable to undertake the dictates for the rulers. As we have seen, it had always been a part of the state structure. The same was true during Musharraf 's regime. The judiciary was very much central to ‘good governance' for Musharraf, as it allowed him to keep the main opposition away from politics and in exile.

5.4