MicroPakistan

We are accepting as a given that the current judiciary will and CAN approve Gen. Musharraf’s candidacy in the elections. The real question is can this judiciary, acting under the PCO (the emphasis is on acting under this very PCO and not anything else) actually decide on ANY case concerning the President? Article 2(3) of the PCO states in the second paragraph:

“Provided that the Supreme Court or a High Court and any other court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority.” (Emphasis added)

One way of looking at this is that under the PCO no court will decide on any matter concerning the President, which includes Constituion Petition No. 73 of 2007 filed by Justice Wajihuddin Ahmed challenging the legitimacy of the President’s candidacy. However, if we interpret this section literally it would mean that no court can pass any order AGAINST the President. For every petition there are two possible outcomes: for or against. Hence, in this case the court is only left with two options – to give a judgment for President Musharraf or not give one at all. Obviously, those judges that took the oath under the PCO weren’t asked to take it so as to not decide on this all important case. I feel that no case concerning the President, Prime Minister et al should be taken up by this judiciary till the PCO is lifted otherwise it would not be a ‘decision’ but a ‘dictation’.

In fact, just yesterday the President said:

“There is no doubt this is the third stage of transition and I must remove my uniform. The Supreme Court now has to decide. When they allow this notification, that is the time when I can take oath as the president and remove the uniform,” he said.

However, the power to decide does not rest with the Supreme Court anymore. That power was taken away from the Supreme Court…no, the SC judges when they took oath under the PCO. They do not have the power to decide anymore. Also, he simply says, ‘when they allow this notification’, which means that he already knows they will allow the notification.

I am just going to think aloud next, but there has to be something that can be done in this case. If the SC does not have the power to ‘decide’ in a case then it should be restrained from passing a verdict in that case. We are not looking for formalities here. We want our courts to make decisions and if they do not have the power to decide then they should close office and sit at home. Or deal with other types of cases. Leave this one alone. Maybe someone should file an application for a restraining order restraining the current SC judges from passing a judgment in this case under the PCO.

Gen. Musharraf, at this point in time, is looking for only one thing – legitimacy. If the current SC can be restrained from passing a verdict in this case because they do not have the power to decide then Gen. Musharraf would fail in his objective. If he fails in his objective then he would have no reason to not revert to the pre-Nov 3 situation.

I know it sounds ridiculous to go to the SC asking it to restrain itself from deciding in a case. But as our leaders constantly say it is an extraordinary situation asking for extraordinary actions. The situation is extraordinarily ridiculous and it requires an even more ridiculous response. Everyone seems to be against the PCO and sooner or later it will be lifted, but maybe, just maybe, and in such exceptional times we will have to fight for everything, we could have a chance in restraining this judiciary, under the very PCO that they have taken an oath under, to pass a verdict in this case.

Otherwise, as Justice Wajihuddin has recently said he should simply withdraw his case. Although I’m not sure what the legal implications of withdrawing a case are and whether he will be able to file it again it will make sure that Gen. Musharraf doesn’t get the legitimacy he’s been looking for sometime now.