(Jan. 27, 2009) On January 15, 2009, the Pakistan Government's appeal to the country's Supreme Court came up for review. The appeal was against an order of the Lahore High Court disqualifying Nawaz Sharif from contesting for a parliamentary seat on grounds of his having been convicted in the “plane conspiracy case.” Sharif had allegedly refused to allow an inbound plane with Pervez Musharraf , then Chief of Pakistan's Army, onboard to land in Karachi in October 1999. Subsequently, the army seized power, Musharraf became chief executive, and Sharif was exiled to Saudi Arabia. (Sami Zubeiri, History Bodes Ill for Pakistan Election, AGENCE FRANCE PRESSE, Feb. 18, 2008, LEXIS/NEXIS, News Library, All News File.)
The appellant's counsel, speaking for the Government, argued that the original ruling was invalid. Absent parliamentary approval of both the proclamation of emergency issued by President Musharraf and the subsequent dismissal of the entire Supreme Court, the new judges of the superior court sworn in under the Provisional Constitution Order (PCO) of November 2007 ceased to be judges, because the oath meant allegiance to a military commander and not the Constitution. Thus, according to counsel, the judges' taking an oath of allegiance to the military commander was a violation of article 178 of the Constitution and the basic principles of the independence of the judiciary. Consequently, the judges were not validly on the bench. The counsel further stated that the PCO of 2000 had been approved by the Parliament under the 17th Amendment to the Constitution, but the PCO of November 2007 had not been approved.
Moreover, according to counsel, the PCO of 2007 was an unconstitutional order tantamount to destruction of the Constitution, because it required judges to dispense justice as commanded by the army chief. At the same time, the Oath of Office (Judges) Order of 2007, issued while the Constitution was in abeyance, required judges to have the oath administered under the PCO. A judge refusing to take the oath had to resign.
In his presentation before the Court, counsel sought to have the case referred to a larger bench for a final decision. (Nasir Iqbal, Sharifs' [sic] Candidature Case: PCO Judges' Position Questioned, THE DAWN, Jan. 16, 2009, available at http://www.dawn.com/2009/01/16/top18.htm.)