EXACTLY after a year, the lawyers` historic movement for the restoration of the independence of the judiciary and the rule of law has succeeded in convincing major political parties in the National Assembly to accept their demands.

March 9, 2007 will always be remembered as a black day in the judicial history of Pakistan. Much to our delight, March 9, 2008 will be remembered as a day of jubilance in the political history of Pakistan. It is heartening that the PPP and the PML-N have signed the Murree declaration, making a categorical commitment to restore the deposed judges within 30 days of the formation of the government.

Supporters of the president lost no time in raising erroneous and misconceived objections, such as how could there be two chief justices at the same time. How can the judges given oath on or after Nov 3 be removed by an executive order or an Assembly resolution? These objections are basically intended to sidetrack the main issue, create confusion and mislead the public.

Sound and tenable answers to these two objections are embodied in the Constitution as well as in the monumental judgements of the Supreme Court itself. One is the case of Zafar Ali Shah (PLD-2000, SC-869). While validating the takeover by Gen Pervez Musharraf in Oct 1999, the apex court had clearly declared that “no amendment shall be made [by Gen Musharraf] in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions”. The so-called proclamation of emergency and the PCO of Nov 2007 were a blatant attack on the independence of the judiciary in gross violation of not only the Constitution but also of the conditions of validations prescribed by the Supreme Court in the Zafar Ali Shah case.

Consequently, the said Proclamation and PCO were admittedly in violation of the Constitution, without any lawful authority and of no lawful effect. Gen Musharraf was also stripped of the benefit of the validation and shelter conferred by the Supreme Court in the Zafar Ali Shah case.

In any case, the said proclamation of Nov 2007 was immediately suspended and set aside by the seven judges of the Supreme Court on the same day. Hence, all acts done or purported to have been done, in pursuance of the said proclamation, including the PCO and the fresh oath given to the persons occupying the offices of the superior judiciary, were in violation of the Constitution, void ab initio and a nullity in the eyes of the law.

It would also be relevant to refer here to the historic `Judges Case` (PLD-1996, SC-324). This famous decision has prescribed the manner and procedure for the appointment of judges of the superior courts. The oath of office of superior court judges administered by General Pervez Musharraf or by his governors in November is clearly in violation of the 13 categorical conditions prescribed by the Supreme Court itself.

Space considerations constrain the reproduction of the 13 conditions which, inter alia, provide for meaningful consultation with the permanent Chief Justice, appointment to fill permanent vacancies only and appointments only in accordance with the qualification prescribed by the Constitution. Another undeniable fact is that fresh appointments in constitutional institutions can only be made when there is a vacancy in the eyes of the law. Since the removal and detention of more than 60

judges of the superior courts in Nov 2007 was by itself in violation of the Constitution, no fresh appointment or oath of office could be given to any other person. Such appointments were void and of no lawful effect on the aforesaid grounds, hence their removal would not give rise to any crisis or difficulty, constitutional or otherwise.

Gen Musharraf`s supporters ask, why this hue and cry for the judges who were deposed in Nov 2007? What is wrong about the oath taken by the present judges under the PCO of Nov 2007? Had not most of the deposed judges, including Chief Justice Iftikhar Mohammad Chaudhry, taken oath on the PCO of 1999? On the face of it they may appear to be making a point, but a careful analysis of the matter would show that this is baseless and mala fide propaganda. In the first place, the PCO of 1999 cannot be equated with the PCO of Nov 2007 as the objects, reasons, facts and circumstances of the two are totally different.

The coup d`etat of Oct 1999 was primarily against the institutions of the federal and provincial executives and legislatures. It was not aimed at subjugating and arresting members of the superior judiciary along with their families. The PCO of 1999 was validated conditionally by the Supreme Court in the case of Zafar Ali Shah, as mentioned above. The purported validation of the emergency/PCO of Nov 2007, announced by some of the defecto judges of the Supreme Court, was without jurisdiction or any lawful authority as the purported validation was issued by those who had taken oath under the new PCO illegally enforced by Gen Musharraf. They were a beneficiary of the PCO and it is a universally followed maxim of law that “no one can be a judge in his own case”.

The so-called proclamation and PCO of Nov 2007 have to be judged against the backdrop of the failure of Gen Musharraf and his colleagues to obtain the resignation of the Chief Justice, their failure to seek his removal by filing a reference before the Supreme Judicial Council under Article 209, the resounding support he received from the judges and lawyers who firmly stood behind their Chief Justice and the historic Supreme Court judgement of July 20, 2007 which restored the Chief Justice. It is also pertinent to mention that during the course of the hearing before the Supreme Court, Gen Musharraf had withdrawn all the allegations and charges filed against Chief Justice Iftikhar Chaudhry, with an unconditional apology tendered in the open court.

Unlike the PCO of 1999 or LFO of 2002, the PCO of 2007 and any of the consequential orders, decisions and acts of Gen Musharraf have not been validated or adopted by parliament by amending the Constitution with the support of at least two-thirds of its total members as required under Article 239 of the Constitution.

Regrettably, General Musharraf and his minions continue to maintain their unconstitutional stand, inter alia, that the restoration of the deposed judges would require a constitutional amendment by a two-thirds majority. This stand is not tenable, to say the least, morally or legally because the removal of judges by Gen Musharraf was a blatant violation of the Constitution and a nullity in law. Reversal of this act does not and cannot by stretch of any logic or reason require any kind of amendment to the Constitution simply because the purported amendments made to the Constitution by Gen Musharraf in November 2007 are not part of the Constitution.

The writer is a former attorney general, federal minister for law, justice, parliamentary affairs & human rights, and a former senator.

hnhadv@cyber.net.pk