By
CH. MUHAMMAD BASHIR,
Advocate (Ex-member of Punjab Bar Council)

The lawyers community has launched movement for restoration of superior judiciary to Pre-3rd November 2007 status.

General Pervez Mushraff, Ex-Chief of Army Staff, defacto President of Pakistan, is resisting the restoration on the ground that matter of deposed judges, who refused to take oath under Oath of office (Judges) Order 2007 issued on 3rd November, by President, under Provisional Constitution Order 2007, in pursuance to Proclamation of Emergency of 3rd November , made by him, is sealed once for all under Article 270 AAA read with Article 270(c)(2) and cannot be overturned except by amendment of the Constitution in relation to the said Article.

The said resistance on the part of President is not tenable for the following reasons.

(1)     Anything done during the course of Emergency comes to an automatic end on its revocation.

The removal of the judges of Supreme Court of Pakistan was brought about by General Pervez Musharaff, Chief of Army Staff, by Proclamation of Emergency on 3rd November, 2007, and issuing Provisional Constitution Order dated 3rd November, 2007, and getting issued oath of office (Judges) Order, 2007 by President on the same date, which, combined together, amounted to Martial Law but was couched in soft- sounding word’ Emergency.

When the said emergency was lifted on 15th December 2007 Pervez Musharaff ceased to be coas, all the said instruments made by him directly or through the President, as his agent, automatically ceased to exist and the removed judges stood restored to their offices.

Mr. Fakhar-ud-Din G. Ibrahim, an eminent lawyer, explained this position in the following words.

“An unconstitutional act imposed by brute force is ab-initio void and can be disregarded when the force is lifted”.

Even Supreme Court, as it stood reconstituted by Judges who volunteered to take oath, was constrained to hold in its judgment dated 3rd November 2007 in “Tika Iqbal Mohammad Khan. Versus General Pervez Musharaff” (PLD 2008 SC (6) that

(i)       The old legal order has not been completely suppressed or destroyed but it is a case of constitutional deviation for a limited transitional period.

(ii)      The proclamation of Emergency of the 3rd November, 2007, shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end”

If the judges are still restrained after 15th December, 2007, this is due to sheer brutal force on the part of the Government and constitutes a criminal offence.

2.       Proclamation of Emergency was malafide.

General Pervez Musharaff, Coas, realizing, that the Supreme Court Bench, seized of the petition of Mr. Wajihuddin Ahmad, wherein his eligibility to contest election of President was under challenge, is likely to hold him ineligible, resorted to proclamation of Emergency on 3rd November, 2007 and promulgation of Provisional Constitution Order, 2007, on 3rd November and issuance of oath office (Judges) Order 2007, through the President, on the very date, to debar the bench from hearing the case. The Proclamation of Emergency contains 12 grounds which are mutually exclusive, to justify the imposition of emergency but the latent intent behind it was to get rid of the majority judges on the Bench and Chief Justice Iftikhar Mohammad Choudhry, whom he thought to be a potential obstacle in his dictatorial Scheme. It is with this end in view that all orders issued in pursuance to the proclamation exclusively relate to deposed judges, and, in order to permanently debar their restoration, constitutional amendments have been designed in the shape of Article 270 AAA and Article 270(C)(2), entertaining a wishful thinking that either his patronized parties will get majority in the Assembly coming into being as a result of the election to be held or that no group will be in a position to muster 2/3rd Majority in both the National Assembly and the Senate.

To avoid the impression that it is exclusively meant to depose the Supreme Court Judges, not amenable to his discipline, oath of office (Judges) Order 2007 has been generalized to extend it to High Court and Shariat Court Judges, though no grievance was evinced in the proclamation of emergency against them.

As to other grounds in the proclamation of emergency no order has been issued to combat them.

Even the reference to Supreme Court’s Alleged excesses are hardly germane to the issuance of the emergency, as the President till the end of February 2007 never took exception to them. Moreover the Benches, deciding the alleged controversial matters included the Judges who have been retained after the emergency.

3.       President, to whom power to issue orders and make amendment in the constitution has been given under the Provisional Constitution Order 2007 dated 3rd November, 2007, is not the President under the Constitution but an agent of COAS and the COAS himself happens to be that person.

All constitutional orders and other orders issued by President in virtue of authority given to him under the Provisional Constitution Order, 2007 are to be treated as if by made COAS himself, as an act of agent is treated to be an act of the principal.

4.       Article 270 AAA and Article (C) (2) are a nullity, as COAS himself can neither indemnify himself for things done during the emergency nor validate his legislative instruments.

Clause 4 of Revocation of Proclamation of Emergency Order, 2007 provides that Constitution, as amended by the Constitution (Amendment) Order, 2007 (P.O. No. 5 of 2007) and the Constitution. (Second Amendment) Order 2007, shall stand revived on and with effect from the 15th day of December 2007 upon the revocation of Emergency and repeal of Provisional Constitution Order No.1 of 2007.

Article 270-AAA was added by clause (6) of the Constitution (Amendment) Order 2007 on 21-11-2007 so as to provide:

(1)     That Proclamation of Emergency of 3rd November 2007, all President’s Orders, Ordinance, Chief of Staff Orders, including the Provisional Constitution through the Constitution (Amendment) Order 2007 and all other laws made between the 3rd November 2007 and the date on which the Proclamation of Emergency of the 3rd day of November, 2007, is revoked (both days inclusive) are accordingly affirmed adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever.

(2)     All orders made proceedings taken, appointments made, including amendments and deputation and acts done by any authority, or by person, which were made taken or done, on or after the 3rd day of November 2007, in exercise of the powers derived from any proclamation, Provisional Constitution Order No. 1 of 2007, President’s orders, Ordinance enactments, including amendments in the Constitution, Notification, Rules, Orders, bylaws or in execution of on in compliance with any orders made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding anything contained in the Constitution or any judgment of any court, do deemed to be and always to have been validly made, taken, or done and shall not be called in question in any court or forum on any ground whatsoever.

3.       All Proclamations, President’s Orders, Ordinance, Chief of Army Staff Orders, Laws, Regulations, Enactments, Including amendments in the Constitution, Notification, Rules, Orders or Bylaws in force immediately before the date on which the Proclamation of Emergency of the 3rd day of November, 2007 is revoked , shall continue in force until altered, repealed or amended by the competent authority.

“Competent Authority” was meant to be appropriate Legislature’ in respect of Presidents Orders, Ordinances, Chief of Army Staff Orders and Enactments including amendments in the Constitution.

4.

5.

Article 270 (C) (2) was added by the Constitution (Second Amendment) Order 2007, dated 14-12-2007, so as to provide.

“Notwithstanding anything contained in the Constitution or any other law for the time being in force:-

(i)      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 and.

(ii)      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 a 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.

How whimsical and absurd it looks that a violator of the Constitution himself validates his violation of the Constitution. The validation of violation by a Violator of the Constitution is as much tainted with treason as the initial act of treason.

The accepted principle is that when Martial Law comes to an end, and the Parliament comes into being as a result of general election then all laws made during the Martial Law are sought to be validated and all things done during this period are sought to be indemnified, by it in order to save the usurper from being tried for treason on account of violation of the Constitution.

There have been precedents in our country that the Parliaments, coming into being as a result of general election, have been approached for validation of constitutional amendments and laws made during Martial Law period. It so happened in the following cases:-

(i)      Constitutional amendments and laws made under Civilian Martial Law of Z.A Bhutto during period in between 12-12-1971 and 20-04-72 were got validated under Article 269 of the Constitution.

(ii)      Constitutional amendments and laws made during General Zia-ul-Haq’s Martial Law were got validated through Constitution Eighth Amendments Act 1985 and was added in the Constitution.

(iii)     The Constitutional amendments and laws made during Martial Law of General Pervez Musharaff himself were got validated through 17th Amendment Passed by the Parliament and as a result thereof Article 270 AA was added.

So Article 270 AAA and 270 (C) (2) have no more value than the Proclamation of Emergency of 3rd November, 2007. Both stand on equal footing and are a product of usurper. All his acts since 3rd November to 15th December and all his legislative instruments including the Revocation of Emergency Order dated 15th December 2007 should be sought to be validated by the Parliament coming into being on 18th February 2007. If he does not get his action validated then he is liable to be proceeded against under Article 6 of the Constitution.

5. Judgment of Supreme Court dated 23rd November 2007 in Tika Iqbal Mohammad Khan Case, conferring Power to amend Constitution to General Prevez Musharaff is unconstitutional and a nullity for the following Reasons:-

(i)      The Judges representing the Bench hearing the case, owed their existence to General Pervez Musharraf, who inducted them as judges under the oath of office (Judges) Order 2007, dated 3rd November 2007 and were squarely bound by the Provisions of the said order, the Proclamation of Emergency of 3rd November, 2007, and the Provisional Constitution Order I of 2007 and could not call in question or permit to be called in question or permit to be called in question the validity of any of the provisions thereof and were debarred from making an order against the President under clause 2 (3) of the P.C.O.

So the status of the Judges was reduced to that of a subordinate official under General Pervez Musharraf and were to act on his call.

(ii)      The Judges had personal interest in acting in unison with General Pervez Musharaff. Having been inducted under P.C.O. their revival in office was linked with the continuance thereof. They were to lose their jobs if the judges deposed on 3rd November, were to be restored by striking down the instruments under which they got life. It is for this very reason that they, in the aforesaid judgment, observed that he cases of deposed Judged cannot be re-opened being hit by the doctrine of past and closed transaction.

(iii)     They dismissed the petition of Wajihuddin Ahmad by Order dated 19th November 2007. (PLD 2008 SC 13) to respond quickly to the wish of General Pervez Musharaff to be held eligible to contest election of President, which he had apprehended to be negatively decided by the Bench, seized of the case, before the imposition of Emergency and Promulgation of Provincial Constitution Order, 2007 on 3rd November 2007.

(iv)     The Judges were pleased to confer power to amend the Constitution, on General Pervez Musharaff, when the Supreme Court itself did not have the power to amend the Constitution.

This conferment of power was beyond the scope of the petitions. If a court dismisses a cause of a party before it, then it has no power to grant to the opposite party a relief which it has not asked for. In granting the power to amend the Constitution the judges have proved themselves to be more loyal than the master.

(v)     The Judges under P.C.O. have virtually consented to be cohort of General Pervez Musharaff. They are sailing in his boat.

(vi)       The judgment is nothing more than a complementary instrument to enhance the dictatorial powers of General Pervez Musharaff. It is Interesting to note the General Pervez Musharaff has made it a ground it Article 270AAA to justify the proclamation of Emergency and consequential orders.