by Ansar Abbasi
ISLAMABAD: General (retd) Pervez Musharraf can be tried under Article 6 of the Constitution for his November 3, 2007 action as well as for his October 12, 1999 martial law, but the 18th Amendment gives constitutional cover to the PCO oath taken by superior court judges in 2000.
Although the 2008 parliament scrapped certain parts of the 17th Amendment passed by Musharraf’s parliament in 2004, the 18th Amendment endorses the indemnity of the oath of judges under PCO taken in 2000.
Therefore, as per the Constitution Musharraf could be tried for high treason for twice abrogating the Constitution, once in October 1999 and again in November 2007, but the judges who had taken oath under Musharraf’s PCO in 2000 are protected by the pre as well as post 18th Amendment Constitution.
Musharraf’s 12 October 1999 martial law, which was indemnified by the 2002-2007 Parliament under dictator’s rule, did not get the 2008-2013 parliament’s endorsement but the dictator’s consequent actions including the oath of judges in 2000 under the PCO got complete constitutional protection in the 18th amendment.
Those media commentators, politicians and opponents of the present independent judiciary, who are desirous of dragging others including the PCO judges of the 2000 PCO, in the high treason case are making an unconstitutional demand. The 18th amendment despite having declared the 2000 PCO as unlawful protected the superior court judges, who had taken the said oath, through 270AA (3), which reads as:
Judges of the Supreme Court, High Courts and Federal Shariat Court who were holding the office of a judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order, 2000 (I of 2000), shall be deemed to have continued to hold the office as a judge or appointed as such, as the case may be, under the Constitution, and such continuance or appointment, shall have effect accordingly;
Judges of the Supreme Court, High Courts and Federal Shariat Court who not having been given or taken oath under the Oath of Office (Judges) Order, 2000, (I of 2000), and ceased to hold the office of a Judge shall, for the purposes of pensionary benefits only, be deemed to have continued to hold office under the Constitution till their date of superannuation.”
Musharraf’s parliament through its 17th Amendment, had validated/indemnified the October 1999 martial law of Musharraf besides giving constitutional protection to all other president’s orders, ordinances, chief executive’s orders, including the Provisional Constitution Order No. 1 of 1999, the Oath of Office (Judges) Order, 2000 (No. 1 of 2000), Chief Executive’s Order No. 12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive’s Order No. 24 of 2002), the Legal Framework (Amendment) Order , 2002 (Chief Executive’s Order No. 29 of 2002), the Legal Framework (Second Amendment) Order, 2002 (Chief Executive’s Order No. 32 of 2002) and all other laws made between October 12, 1999 and the date on which Article 270AA was inserted by Musharraf’s parliament in 2004.
As the previous parliament could not completely scrap the 17th Amendment, therefore, it gave partial indemnity to all presidential orders, laws etc that justified the consequential actions of Musharraf’s first martial law. The 18th Amendment also did not indemnify the November 3, 2007 action of Musharraf but gave constitutional cover to the general elections of February 2008 as announced by the former dictator.
On Friday after a long delay of more than 4 hours SC of Pakistan gave a remarkable judgement of declaring the 3rd November 2007 as unconstitutional,illegal and extra judicial.
The 14 member bench headed by Chief Justice of Pakistan Iftikhar Ahmed Chaudhary who was restored by the government on 16 March 2009 after immense pressure from a long march by lawyers,civil society and politicians on Friday also rejected the unconstitutional amendments made by former dictator Musharraf during the time of emergency (between 3rd November 2007 and 15 December 2007).
SC sent the cases of those judges who violated the judgement of 7 member bench which declared 3rd November 2007 actions as unconstitutional and ordered the judiciary not to take oath under the PCO of dictator to Supreme judicial council.
Also the Supreme Court declared:
1) The sacking of judges by Musharraf on 3rd November as unconstitutional.
2) The removal of judges appointed during the PCO period and the Dogar period.
3) The tenure of Abdul Hameed Dogar (The PCO CJ appointed by Musharraf) as unconstitutional.
4) The increase in number of SC judges to 29 through finance bill by current parliament as unconstitutional.
5) The Islamabad High Court as unconstitutional and now after this decision all the judges of Islamabad HC are dismissed from their service.
6) The Ordinances issued by the dictator are referred to the parliament for review.
However in the decision SC did not change the status of :
1) The presidential oath taken by Dogar from Zardari.
2) The financial and administrative decisions taken by Dogar.
3) The cases related to day to day personal issues settled by the courts during that time.
One thing which didn’t go in favor of the government apart from the removal of jiala judges is the change in status of NRO which was approved by the Dogar court is now a thing to be decided means people including or specially Zardari are now not indemnified from the cases of corruption.
The court has indeed played their part expected from them (people also expect more good news from them) and now the ball is in the court of the national parliament to show what they are capable of doing.
By Muhammad Ahmad Noorani
ISLAMABAD: The Presidency is eying for yet another politically demanding goal, the extension to Chief Justice Abdul Hameed Dogar without a constitutional amendment, but the president’s spokesman asserts that Dogar will retire on March 21.
Though constitutional experts including even those who are considered close to Justice Dogar believe that this is impossible without a constitutional amendment, legal minds surrounding President Zardari are considering to achieve this impossible task through a court order.
In the post-October 12, 1999 Constitution, the age for retirement of a Supreme Court judge was 65. However, according to constitutional experts, Musharraf, in his bid to continue with his favourite and handpicked judges for a long time, had increased this age limit from 65 to 68 years in his unconstitutional Legal Framework Order (LFO).
During the negotiations for 17th Amendment, the increase in retirement-age of the judges of the apex court was not accepted and it was again fixed at 65 years. Afterwards, a lawyer Maulvi Iqbal Haider, who was known to be close to official circles during the Musharraf-regime, moved a petition in the Supreme Court praying that the retirement-age limit for the apex court judges once extended could not be reduced. The said petition is still pending with the Supreme Court.
Though, constitutional experts SM Zafar and Dr Khalid Ranjha argue that the retirement age could be extended only through a constitutional amendment, senior PPP leader and Chairman National Assembly Standing Committee on Law and Justice Begum Nasim Akhtar Chaudhry told The News Thursday that the age limit could be increased through a simple legislation, which could be passed by a simple majority.
According to sources in the government, President Zardari’s legal gurus see no way out for continuation in the power corridors if someone other than Justice Abdul Hameed Dogar becomes the Chief Justice. According to these sources, Zardari considers continuation of Justice Dogar as the Chief Justice crucial to get out of present crisis emerging in the wake of the lawyers’ long march.
In case, no unconstitutional step is taken, Justice Dogar will retire on March 21. A minister approached by The News termed the report about the proposal to give extension to Dogar for saving Zardari rule baseless. He said if the government wanted to give extension to Dogar, it would be done because of the competency of the incumbent CJ and not because of saving the rule of Zardari.
Senior constitutional expert SM Zafar told The News that there was no ambiguity whatsoever in the retirement age of a Supreme Court judge could only be increased through a constitutional amendment, which needed two-third majority.
Senior lawyer Dr Khalid Ranjha told The News “though the age could only be increased through a constitutional amendment but in a country like the one we are living in, anything could be done.” He said media persons and lawyers would condemn it but once the decision was delivered, it would be implemented like many other wrong things. When asked to comment, presidential spokesman Farhatullah Babar told The News there was no question of Dogar getting an extension and he would retire on March 21.
Supreme Court Bar Association President Aitzaz Ahsan has categorically rejected the idea of two Supreme Courts when asked the the opinion on the issue by Talat Hussain of AAj TV in the programme Live with Talat.
He said the suggestion refers to an arrangement which is Dogar and Iftikhar Chaudhary specific and he said it will be like spliting the court in two parts.
In his interview he also said that he tried his best to convince his party leadership and accepted that his opinion is considered as and opposing one in the party circles and he blamed the leagal advisors of the party for this.
Aitzaz Ahsan who is also a member of central executive committee of PPP said he and Justice(R) Fakhruddin G Ebrahim sent their arguements in writing to the committee for the restoration of judiciary in which they gave a solution for the PCO judges adjustment as appointments on ad-hoc bases which will not only keep the PCO judges in the court but also will not disturb the seniority of the genuine judges.
He also again rejected the minus one formula and revealed that he was given this proposal by a very trusted advisor of Musharraf when he was in Adiala jail during emergency(Martial Law).
Below is the News Report on the issue.
|Two Supreme Courts being considered to resolve judges issue|
By Rauf Klasra
ISLAMABAD: Two parallel Supreme Courts are being quietly discussed in Pakistan as part of a draft constitutional package to resolve the complex issue of the deposed judges’ restoration.
The proposal envisages one Supreme Court to be headed by the deposed chief justice Iftikhar Muhammad Chaudhry dealing only with criminal and civil cases and the other by the incumbent Chief Justice Abdul Hameed Dogar, which would be looking after the constitutional matters. It will also have all the suo motu powers.
Highly-placed sources close to the presidential camp revealed that the new constitutional court to be headed by Justice Dogar, whom Musharraf and Asif Zardari do not want to lose, would be named as the Federal Constitutional Court (FCC), which would be exclusively empowered to deal with all the constitutional issues, such as the interpretation of the Constitution, the National Reconciliation Ordinance (NRO), constitutional controversies, the validity of President Musharraf and most importantly the suo motu actions.
Sources said the court, to be headed by Iftikhar Chaudhry, would be a sort of an appellate court on the high courts of the four provinces. But the court headed by Justice Dogar would handle the real issues that worry the presidency and the Zardari House.
Likewise, the new constitutional package also envisages the formation of a parliamentary committee to scrutinise the judges as it was envisaged in the Charter of Democracy.
This correspondent made several calls to Law Minister Farooq H Naek to get his point of view but he did not pick up his mobile phone. He did not even answer an SMS sent to him. Several calls were also made to a member of the constitutional committee Raza Rabbani and Aitzaz Ahsan but they too could not be reached.
The new proposal contemplates the creation of a Federal Constitution Court, to be headed by Justice Dogar with seven judges on the bench. A separate Supreme Court of Pakistan to deal with civil and criminal appeals would be headed by Iftikhar Chaudhry.
This court will consist of the deposed colleagues along with some of the PCO judges. Sources claimed that if approved and enacted by parliament, the existing structure of the superior judiciary would be altogether changed into two distinct entities.
An important impact of this proposed amendment over the life of common citizen would be withering away of the writ jurisdiction, as provided under Article 199 of the Constitution, and all five writs shall be exclusively entertainable by the federal Constitution alone.
The status of both the courts with perks and privilege of the judges shall be at par and judges from one court to another court shall be transferable through exercise of executive authority. The proposed arrangements being discussed further envisages that the Federal Constitutional Court would be the only competent forum to issue writ of the nature of mandamus, certiorari, prohibition, declaration and injunctions and shall be competent to adjudicate upon disputes arising between the Federation and the federating units and shall be vested with the jurisdiction to interpret ambiguities in constitutional provisions and shall be competent to issue injunctions, both interim and perpetual and could validate or declare as null and void a constitutional provision or a subordinate law.
One expert said the proposed draft, if examined on the touchstone of the jurisdictional and judicial powers of the present day Supreme Court enshrined in the Constitution of Pakistan, shall be tantamount to divide the powers of the apex court into two entities.
The Supreme Court, headed by Iftikhar Mohammad Chaudhry, shall be reduced to the level of a civil court of civil and criminal appeals whereas all matters of public and the national importance, including those warranting interpretation of status, laws and constitutional provisions shall be vested in the Federal Constitutional Court and by such way, any disputes relating to the legitimacy of an incumbent of a government office like president, governor, etc, shall be exclusively litigated before the Federal Constitutional Court.
The expert said the move appears to placate the apprehensions of the establishment and the presidency on the one hand and endeavour to appease the civil society, media and the lawyers on the other.
Not only that the question of validity of President Musharraf shall remain buried, but also to pre-empt the ambitious pursuit of Justice Iftikhar Chaudhry of frequent exercise of powers of the judicial review, a need for creation of a Federal Constitutional Court was felt and a resolution likely to be tabled next week in parliament shall be qualified with the passage of the constitutional package.
The expert said if this draft law was enacted, the institution of the judiciary would be belittled with its powers divided and jurisdiction curtailed. The immediate and most lethal impact of the constitutional package would be ordinary litigants and general citizens of the society with the withering away of the writ jurisdiction of the high court and in the absence of the alternate remedy at provincial capitals and where the high court benches are functioning. A great deal of inconvenience would be involved to present petitions to the Federal Constitutional Court at Islamabad.
The expert claimed that even the deposed judges would prefer to stay away from the chambers of the newly-styled Supreme Court and the lawyers community was expected to put an en bloc opposition to the move.
The expert feared as the package was likely to affect the life of an ordinary citizen, the response from the public may aggravate the situation and if the move failed on the floor of the house, either for dissent by the PML-N or for any other reason, the fate of the coalition government in Islamabad would also be decided there and then.
(DRAFT RESOLUTION by Justice(R) Fakhruddin G Ebrahim for the Restoration of Genuine Judiciary )
THE NATIONAL ASSEMBLY OF PAKISTAN
WHEREAS, We the elected representatives of the people of the Islamic Republic of Pakistan acknowledge and honor the long and arduous struggle for the return to democracy and rule of law by the legal fraternity, civil society and the ordinary citizens of our beloved country.
AND WHEREAS, We pay tribute to Shaheed Mohtarma Benazir Bhutto and thousands of brave political activists across the country who made the ultimate sacrifice and laid down their lives or suffered imprisonment for the cause of restoration of parliamentary democracy and the rule of law in Pakistan. We shall not let their sacrifices go in vain.
AND WHEREAS, this Assembly is mindful that the foundation of democracy cannot survive without a return to the rule of law. We are mindful, that the rule of law cannot survive the rule of the gun unless we have an independent judiciary. And, we are cognizant that we shall never have an independent judiciary if the Judges of the Superior Court’s of this country are imprisoned at the whims of a lone individual.
AND WHEREAS, we as Members of the National Assembly have taken oath to “preserve, protect and defend the Constitution of the Islamic Republic of Pakistan” and we shall not waiver from this oath.
AND WHEREAS, Article 209(7) of the Constitution provides in no uncertain terms that “A Judge of the Supreme Court of or of a High Court shall not be removed from office except as provided in this article.” Therefore, as opined unanimously by leading former Chief Justices and Judges of the Supreme Court of Pakistan, the actions of 3rd November 2007, seeking to remove and restrain the Chief Justices and Judges of the Supreme Court of Pakistan and the Provincial High Courts is void ab initio and has no sanctity in law.
WE, THEREFORE, bound by our Constitutional Oath and the mandate given by the people of Pakistan on February 18, 2008 do hereby RESOLVE and call upon the Federal Government to remove all illegal restrictions placed on the Chief Justices and Judges of the Supreme Court of Pakistan and the provincial High Courts on and after 3rd November 2007 with immediate effect.
History shall not forgive those, who even now, may seek to obstruct the irreversible path to constitutional rule in our great country.
THEREFORE, WE FURTHER RESOLVE, and call upon the Federal Government to perform its obligation under Article 190 of the Constitution and act in aid of the Chief Justices and the Judges of the Supreme Court of Pakistan and the Provincial High Courts who were illegally restrained on and after 3rd November 2007 so that they may resume their Judicial functions in accordance with the provisions of the Constitution.
(Emergency mailing list)
Aitzaz Ahsan in Lahore said that the decision to hold a long march against Musharraf’s dictatorship and to
support the cause of justice is not withdrawn.
He also urged people to observe black flag week from 9 March to 16 March 2008.
He was addressing the representatives of civil society,lawyers , workers of PTI and PPP who were there outside
his residence to celebrate his release.
He warned if the newly elected parliament did not reinstate the judges and ensure independence of the judiciary
then it would be a fragile parliament and its prime minister and members will be weak. Time will come a dictator
will again sabotage it, he added. Members of assembly will be arrested and they will contact people to
solicit their support. Then no one will join hands with them, he underlined.
He also added that former Prime Minister Benazir Bhutto was in favor of reinstating the judiciary reffereing
to her November 10 statement in which she said that CJP Iftikhar is the Chief Justice of Pakistan.
According to Media Reports Justice Falak Sher (one of the non-PCO genuine Judges of Supreme Court) rejected the offer of becoming the Chief Justice of Pakistan in August 2007 and during recent crises in place of Genuine Cheif Justice of Pakistan Iftikhar Ahmed Chaudhary.
There was an application in pending by Justice Falak Sher in the law ministry and the presidency on the issue of seniority and on this basis Government thought it to be an opportunity to use against CJP Iftikhar Chaudhary but the refusal of Justice Falak Sher didn’t support their motives by saying,”I will disappoint you”.
Also during the reference case on 13th May he refused to be a part of the bench hearing the case by saying,”On account of seniority and being the senior-most judge in the country, it would be improper for me to hear a case in which the chief justice is a party, who like other judges of the Supreme Court is junior to me from four to nine years”.
We thank you all Justice Falak Sher for showing great sense of responsibility and commitment with the country.