Huzaima Bukhari & Dr. Ikramul Haq
May 12 of 2007 and 2008 will be remembered in Pakistani history as a tragic and lamentable day—a dictator with the connivance and support of certain forces managed to frustrate the aspiration of people to see their homeland a place worth living that holds a better future for the coming generations. The expiry of second deadline of May 12, 2008, after a lapse of mutually-agreed and self-imposed condition of 30 days for the restitution of judges announced in Bhurban on March 9, 2008 and decision of PML(N) to quit from the coalition government may have made the dictator and his cronies happy, but disappointed the entire nation. People are in bewilderment over the indecisiveness of our political leadership (sic) and non-functioning of Parliament above the party lines on this very vital constitutional issue. The failure of long-drawn parleys between Asif Ali Zardari and Mian Nawaz Sharif and their teams in London on May 11, 2008 came as a rude shock for every citizen of Pakistan.
It needs to be remembered that Law Minister, Farooq H. Naek, immediately after the announcement of new deadline by Mian Nawaz Sharif in Lahore said “it may not be ‘final’”, yet the PML (N) leadership failed to read between the line messages. PML(N) should have gone for filing a Bill at its own in the Parliament for ‘Restitution of Judges Act 2008’ instead of relying on a “leadership” (sic) that ditched the most-trusted man of Shaheed Benazir Bhutto, Makhdoom Fahim, on the dictates of Musharraf and handed over all the powers to a never-party-man, Rehman Malik. This was an ugly joke with the die hard party workers and those who made great sacrifices for the Bhuttos. PPPP of the Shaheed Zulfikar Ali Bhutto is different from the PPPP of Asif Zardari. It is thus not surprising that Zardari, Rehman Malik, Farooq Naek et al managed to hoodwink the top leaders of PML(N) by referring the matter to a five-member committee to ponder, deliberate and present a draft, which proved to be an exercise in futility. The delaying tactics employed by Zardari on the issue of restitution of illegally removed judges are deplorable and motivated to merely serve the self-interest of certain quarters.
Undoubtedly, the political leadership of PPP has once again shown lack of commitment. Mr. Zardari may have many pretexts, valid or invalid, for not following the deadline(s) or deviating from the original declaration, promising the restoration of status quo ante of November 2, 2007 without any conditionality. But the nation will never forgive him for using delaying tactics and openly vowing to retain the judges who supported the dictator on November 3, 2007 and thereafter.
The undoing of patently unconstitutional and shamelessly executed acts of November 3, 2007 and implementation of Murree Declaration of March 9, 2008 have great significance in determining whether 8-year-long dictatorial rule in Pakistan will end or not even after anti-Musharraf verdict of the masses on February 18, 2008. The issue of restitution of judges (reinstatement is a wrong notion as they are still judges) is in fact a question of constitutional survival of Pakistan. In parleys between leaders of coalition partners in London, Dubai, Karachi and elsewhere, the issue reportedly was to devise a “correct legal methodology” to counter the strategy of Musharraf camp to block the move through a stay order. It is not understandable why the political forces are not uniting to impeach the unconstitutionally-imposed President, rather than waiting for his purported further illegal actions.
Illegally removed judges, in fact, never ceased as judges. The question is not that of their reinstatement but ordering of status quo ante existing on November 2, 2007. The Parliament unquestionably and unambiguously under the Constitution has full authority to do so. Unfortunately, the Musharraf camp, with the connivance of certain elements, has managed to create confusion in this regard. Musharraf’s propaganda machine using certain quarters, including some members of legal fraternity, started a debate that in the presence of judgements, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178), it is not possible to restore the judges through passing of a resolution in the Parliament and/or an executive order. These quarters conveniently ignore the fact that these judgements are coram non judice, issued after seven-member bench declared action of November 3, 2007 illegal. These judgements also have no binding force as reached per incuriam in view of ratio decided by the apex court in PLD 1997 SC 351.
On the one hand, it has been recorded that “Prime Minister apprised the President of the situation through the letter of 3rd November 2007″ for imposition of emergency, and on the other, order passed by the Chief of Army Staff is approved, which is self-contradictory. It has not been elaborated under what authority of law Chief of Army Staff imposed emergency on the advice of Prime Minister. It is held that judges “who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007, have ceased to hold their offices on the 3rd day of November, 2007.” Since the Oath of Office (Judges) Order, 2007 is void ab initio, any proceedings taken in pursuance of the same are nullity in the eye of law. No judge can be removed except through the method provided in Article 209 of the Constitution.
Since the judgements of apex court, issued after seven-member bench declaring action of November 3, 2007, are untenable, the restitution of judges, deposed through a law violative of express provisions of the Constitution, poses no problem. The newly-elected parliament by refusing to validate Article 270AAA and passing an Act nullifying the judgement of Supreme Court can restitute the pre-November 3, 2007 judiciary. The matter is of simple legal nature and should be solved through a legal procedure rather than entering into political polemics and undue controversies. This will not be the first time that the Parliament will nullify a judgement of apex court; it was done in the past by passing a law through simple majority. Numerous precedents are available to this effect, which Mr. Farooq H Naek certainly knows. The act of Parliament will restore the rule of law in its real sense in the country and all the deposed judges will be restituted without any interference on the part of executive. If done through an executive order, it will set as bad an example as one set by Musharraf on November 3, 2007. In future, any Chief of Army Staff or government can resort to such an illegality.
There, however, is no need for any constitutional amendment, for which two-third majority is required, as propounded by Abdul Hafeez Pirzada, Rashid Quershi, Malik Qayyum, Waseem Sajjad, and Ahmad Raza Kasuri et al. The Supreme Court after restitution of pre-November 3, 2007 judiciary will certainly take cognizance of the matter suo moto or on the initiation of aggrieved party [which is public at large] to correct the mistakes committed by their learned colleagues. It will restore the rule of law in its real sense in the country. All the judges [illegally removed] are still judges as action of November 3, 2007 was declared void ab initio by seven-member bench. The illegally removed judges must assume their offices immediately as soon as an Act is passed by the parliament nullifying the above-referred judgements. In fact, in terms of Article 190 of Constitution, all executive and judicial authorities throughout Pakistan are legally required to act in the aid of Supreme Court. The new government is duty-bound to implement the order of seven-member bench of apex court of November 3, 2007.
However, the issue of ousting of judges, their house arrests, denying them right of free speech and movement and now hindrances in their restitution cannot be examined in isolation. This confirms that as a nation, even after 61 years of existence we have miserably failed to abide by rule of law. At the heart of the concept of democracy is the assurance for the citizens that their affairs are going to be managed by a ‘Responsible Government’ and rule of law will be ensured. If we analyse the Pakistani scenario in the light of the above basic principle, there will be utter disappointment and frustration. The conduct of each government after the death of Father of the Nation was to waste or plunder public money, force the people into international debt enslavement and mercilessly flout all rules and laws. Therefore, if we have failed to establish independent judiciary, true democracy or a responsible Government, it is not surprising. Dispensation of justice is the main pillar of democracy, which is not possible without ensuring independence of judiciary.
Since the bizarre episode of March 9, 2007, there lurks a continuous struggle between the different organs of State to display their muscles and supremacy. Control of State with the barrel of gun cannot be matched by judicial activism. People’s power alone can counter any unconstitutional or extra-constitutional move. Political leadership with the backing of masses can avert action like that taken on November 3, 2007. Courts are meant to interpret law, whereas enforcing the will of people and countering any despotic rule is always a political question that cannot be solved by the courts. Since our leadership has failed to establish rule of law, the entire society is now in the line of fire. All kinds of conflicts are surfacing for want of rule of law and accountability of those who transgress their limits.
The main cause of our present day pathetic socio-political and economic situation is existence of inefficient, corrupt, repressive and criminal institutions, which do not give a damn for the welfare of the common people. Successive governments’ policies of self-aggrandizement have reduced Pakistan to a state-in-perpetual-conflict. The worsening economic situation with poor law and order testify to the fact that progress and tranquility cannot be achieved by merely toeing the policies of aggressors and oppressors. Time has come for political parties to overcome their infightings and on national issue of constitutional revival, join hands against the anti-democratic forces. If Zardari wants to be remembered as a leader of masses, like Shaheed Benazir Bhutto, he should immediately sever all ties with the Musharraf Camp and restitute the illegally deposed judges. He should not forget that denying the establishment of a true democratic structure and independence of judiciary tantamount strengthening the hands of enemies of State. If he is advocate of “changing the system”, he should reconsider hidden (sic!) ties with the “power” if he wants to be remembered as a true representative of the people; or otherwise he will be adjudged by history in the same category as those who joined the King’s party under the banner of PML(Q).
Now that Ms. Nilofer Bakhtiar, member of Forward Block of PLM(Q), has filed resolution for restitution of judges in her personal capacity, the Parliament, irrespective of allegiance of individual members for their respective parties, must rise to the occasion—which is their historic challenge – to take the following steps for the restitution of illegally deposed judges, which also takes care of Mr. Zardari’s concern (sic) for “real change” and “truly independent judiciary”:
In its resolution, newly-elected parliament denounces all the acts taken on November 3, 2007 and resolves that for a true democratic and constitutional rule, a strong and independent judiciary is a sine qua non. Thereafter, the following bills should be tabled and passed:
¤ Bill for ‘High Treason Act 1973 (Amendment Act 2008): This Act amending High Treason Act, 1973 should provide that in case of violation of Article 6 of Constitution, it will be incumbent upon the apex court to take immediate cognizance and direct the Attorney General of Pakistan to initiate trial of offender. Thus in future, the apex court instead of validating any violation of Article 6 will be legally obliged to punish the offender(s). It will send clear message to imposer of emergency on November 3, 2007 to step down voluntarily or face trial for his admitted extra-constitutional acts.
¤ Bill for ‘Oath of Judges, Act, 2008′ (invalidating Oath of Office (Judges) Order 2007): By Passing this Act, the National Assembly will pave the way for reinstatement of November 2, 2007 Judiciary and nullify the judgements of apex court, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6). With the passing of this Act, in future no judge will be removed through any executive order or through any law related to oath of judges.
¤ Bill for National Reconciliation Act 2008 (NRA): In National Reconciliation Ordinance 2007, Musharraf intentionally excluded cases registered after 12 October 1999 for ulterior motives to exclude Nawaz Sharif and Shahbaz Sharif. In order to create a genuine atmosphere of national reconciliation and put an end to political victimization, this new Act should be passed immediately removing all the time-specific and person-specific provisions in NRO, 2007, which are in direct conflict with the Constitution, and extending its scope to all the persons affected.
The above measures will pave the way for a new beginning in this country ensuring the rule of law, constitutionalism, democracy and justice through an independent judiciary.
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The writers (ikram@huzaimaikram.com), tax advisers, legal historians and authors, are visiting Professors of Lahore University of Management Sciences (LUMS).
Tags: democracy, Judiciary, rule of law, subjugation
