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Pakistan’s federal ministry for law, justice and human rights announced the forced retirement of 37 judges from the Supreme Court and other high courts including ousted Chief Justice Iftikhar Mohammad Chaudhry on December 5, 2007. A day before he “restored” the constitution, Musharraf arbitrarily passed the “Constitution (Second Amendment) Order,” which removed all legal challenges to his presidency and gave “constitutional cover” to his forced retirement of all judges who had refused to take oath under his Provisional Constitution Order. It stated:
A Judge including the Chief Justice, of the Supreme Court, a High Court or Federal Shariat Court who had, not been given or taken oath under the Oath of Office (Judges) Order, 2007, had ceased to hold office on and with effect from the 3rd day of November, 2007;72
It also “legalized” the status of the judiciary unilaterally appointed by him:
A Judge including the Chief Justice, of the Supreme Court, a High Court and Federal Shariat Court appointed and/or continued as such Judge or Chief Justice by virtue of the Oath of Office (Judges) Order, 2007, shall, on revival of the Constitution, take oath as set out in the Third Schedule and shall be deemed to have been appointed, and/or shall continue to hold office, under the Constitution.73
By this time, the newly appointed judges had already proved their loyalty to Musharraf.
Declan Walsh, Pakistan correspondent for The Guardian described the scene in the purged Supreme Court as it dismissed the last legal challenge to Musharraf’s presidential bid on November 22:
President Pervez Musharraf's hand-picked judges peered wearily from the bench of the half-deserted supreme court….“Dismissed,” declared the chief justice, Abdul Hameed Dogar, his voice echoing between the marble walls. And so Musharraf secured his strange victory–at considerable cost to his reputation and Pakistan's democracy.
Many believe ensuring the supreme court would validate his re-election was at the heart of the decision to impose emergency rule… a move that triggered mass arrests and television blackouts and plunged the nuclear-armed nation into crisis… … he was taking no chances.
The supreme court resembled a makeshift prison, ringed by barriers, barbed wire and hundreds of police. Entry was by invitation and just a handful of journalists made it in. An intelligence agent kept watch on the door, propelling visitors into a Kafkaesque bureaucratic maze before they could reach the court. “Sorry,” he apologised with a wan smile. “But you know this is emergency time.” The court was presided over by 10 judges whom many Pakistanis believe to be puppets of the regime. A few streets away Iftikhar Muhammad Chaudhry, the independent previous chief justice sacked by Musharraf remained under house arrest, along with ten other judges…74
Walsh went on to describe a hearing on the legality of the suspension of the constitution and the imposition of emergency rule:
[The] petition was followed by a case challenging the legality of emergency. The debate had a manufactured air. The attorney general, Malik Qayyum, cited precedents in American and British law. “Even the English courts say that if the security of the state is threatened you must act,” he said.
Irfan Qader, a lawyer arguing the other side, also leaned his argument towards Musharraf. “The president owes his first allegiance to Pakistan,” he said in conclusion. “In extreme circumstances, he can act.”
The judges listened to the near theatrical performances, stroking their chins. It was over by lunchtime.
The burlesque show was a far cry from the glory days of the supreme court earlier this year, when whooping lawyers leapt over the seats following a series of anti-government rulings that stunned Musharraf and threatened, ever so briefly, to change Pakistan's tortured system of governance.75
It took Musharraf’s judges no more than 24 hours from this hearing to validate the suspension of Pakistan’s constitution and the imposition of emergency rule and to thereby end Pakistan’s fleeting experience of an independent judiciary administering the rule of law.76
The leaders of the lawyers’ movement, some of the most experienced legal experts in the country, remain under house arrest. Though scores remain in detention, authorities have released thousands of lawyers, political activists, human rights defenders, academics, and students from prison. But the fear of being re-arrested hangs over them as charges under the Anti-Terrorism Act remain on file against thousands. Under the restored constitution lawyers have to contend with the possibility of being banned from their profession should they earn the governments ire and all government opponents face the very real possibility of finding themselves in “legal” military custody under the amended Army Act.
Yet even as the mainstream opposition political parties turn their attentions away from the lawyers and judges to elections scheduled for January 8, Pakistan’s lawyers are still boycotting the courts and protesting on the streets insisting that their movement for the restoration of constitutional rule will not end until it succeeds.
