ISLAMABAD, Feb 29: The fate of the present chief justice if deposed chief justice Iftikhar Mohammad Chaudhry is reinstated has become a top judicial issue with many solutions on offer but a way out appearing hard to find.

Top constitutional experts are of the opinion that the new government could restore the deposed superior court judges without any constitutional amendment because they were removed ‘unconstitutionally’ by President Pervez Musharraf as the army chief when he imposed the state of emergency on Nov 3 last year.

But the presidency, on the other hand, appears to be inflexible on the issue of reinstatement of the judges. President Musharraf’s spokesman Rashid Qureshi told private television channels that neither the deposed chief justice nor the superior court judges would be restored.

However, top constitutional expert Fakhruddin G. Ibrahim told Dawn: “The elevation to fill the vacant posts of removed judges during the emergency rule was illegal because their appointment was done without consultation with the lawful chief justice (Justice Iftikhar Mohammad Chaudhry).”

The future coalition government, he said, could order security forces and police to immediately end detention of the deposed chief justice and other judges. It could also provide required administrative support to the judges so that they could perform their duty without any hindrance, he added.

“Plain reading of Article 5 of the Constitution along with Articles 209 and 190 will suggest that judges can only be removed by invoking Article 209 (Supreme Judicial Council), therefore these judges are still holding their respective offices,” he argued.

Mr Ibrahim said he had briefed a high-level meeting of three likely partners in a future coalition on modalities to resolve the present judicial crisis on Wednesday.

Article 5 requires loyalty to the statement and obedience to the Constitution and law by the citizens, while Article 190 commands all executive and judicial authorities to come in aid of the Supreme Court whereas Article 209 deals with the Supreme Judicial Council used to remove judges.

“I have told them that this is their duty to let the judges perform their judicial function.” He dismissed as rubbish the opinion that a two-thirds majority in parliament would be required to restore the deposed judges.

“In fact this two-thirds majority will be needed to validate the amendments made to the Constitution during the emergency period, without which the pre-emergency constitution will hold the field.”

Mr Ibrahim is drafting a declaration disapproving all actions taken during the emergency rule for being illegal, but did not comment when asked on whose behalf he was making the document and when it would be read or tabled and by whom.

Former Supreme Court Bar Association president Munir A. Malik is of the view that the present chief justice could be reverted to his old position with the reinstatement of Justice Iftikhar as the chief justice.

Without parliament validating amendments introduced during the emergency rule, the Constitution would be as it was prior to the emergency, he added.

“I have told Asif Zardari during my meeting with him to de-link the judges’ issue with the constitutional package his party is formulating involving judges’ term of appointment, their salaries and other packages,” he said.

Advocate Iftikhar Gillani said the removal of judges was always done through Article 209 and without validation of amendments made to the Constitution the situation of Nov 2 would remain in the field.

However, a senior Supreme Court lawyer opposed the reinstatement of deposed judges and said the Constitution did not contemplate appointment as well as restoration of judges on political grounds. “This is such a big issue that it has the potential to shatter the entire body politic,” he told Dawn, requesting anonymity.

“The new government will be in trouble if it restores Justice Iftikhar and other judges because they will come with vengeance and thus will become controversial and create infighting,” he added.