Apr 172008

PPP co-chairman Asif Ali Zardari, PMLN chief Mian Muhammad Nawaz Sharif and ANP president Asfandyar Wali Khan held their much awaited meeting at the Zardari House in Islamabad on Tuesday April 15 to finalize their strategy to restore the judges deposed by President Pervez Musharraf as a follow-up of his Proclamation of Emergency on November 3, 2007. The new troika or the Three Elders decided to implement the Murree Declaration in letter and spirit and vowed to fulfil the commitment made in the Murree Declaration to restore the deposed judges through a parliamentary resolution within the 30-day deadline, without forming any parliamentary committee and without linking the issue to the proposed constitutional package. However, they failed to come up with a clear-cut formula or mechanism on how to restore the judges for which they might hold another meeting within next few days. Following the meeting of the Three Elders, the ruling coalition is expected to table the resolution in the National Assembly in the next week probably on November 22 or 23. This resolution may also be ratified by the Senate which has already been summoned by the President, after receiving a summary from the Law Ministry, to meet in the Parliament House at Islamabad on April 25, 2007. The other likelihood is that a joint sitting of the two Houses of the Parliament may be convened next week to adopt such a resolution. The resolution aims at giving effect to clause two of the Murree Declaration or the Bhurban Accord of March 9, 2008 which declared: “This has been decided in today’s summit between the PPP and the PML (N) that the deposed judges would be restored, on the position as they were on November 2, 2007, within 30 days of the formation of the federal government through a parliamentary resolution.” This clause may be divided into three parts. The first part of the clause is that the judges are to be restored within thirty days of the formation of the federal government and not the provincial governments. As the new federal cabinet was sworn in by President Musharraf on March 31, the deadline of thirty days will expire on April 30, 2008. The second part of the clause is that the restoration will be through a parliamentary resolution and not through a resolution by the National Assembly alone. Therefore, it is quite clear that the resolution will be approved by both Houses of the Parliament either in a joint sitting or in their separate sittings. The third and the most important part of this clause is that the deposed judges will be restored to the position of November 2, 2007. That means Justice Iftikhar Muhammad Chaudhry will return as Chief Justice after the restoration of the deposed judges. The PMLQ and other opposition parties may decide to support this resolution for ‘tactical’ reasons. The text of the draft parliamentary resolution is to be finalized by the cabinet committee headed by Law Minister Farooq H Naek. It is likely that it will be a very brief resolution. It will neither condemn President Musharraf nor his actions of November 3, 2007. All it will say is that the ‘the deposed judges be restored on the position as they were on November 2, 2007′. This will be followed by a notification from the Law Ministry to the effect that in supersession of all previous orders the judges of the Supreme Court and the High Courts are hereby restored to the position as they were on November 2, 2007. Following such a notification, Chief Justice Iftikhar Muhammad Chaudhry and other deposed judges will return to courts as usual and the current phase of the judicial crisis will come to an end. However, that does not mean that the judicial crisis has finally been resolved. The restoration of the deposed judges through a parliamentary resolution will only bring the things to the position of November 2, 2007 without making the ‘PCO judges’ redundant. The Law Ministry, with the approval of the President, is likely to increase the sanctioned strength of the judges of superior courts to accommodate the PCO judges. All judgments passed by these judges will automatically be protected under the de-facto doctrine. The term ‘PCO judges’ is generally used to connote to the judges who took oath after General Musharraf’s Proclamation of Emergency of November 3, 2007. However, by using this term I intend to refer only to the judges of the superior courts appointed in between November 2007 and April 2008. I have used the expression ‘PCO judges’ only for the sake of brevity and convenience and without any intention to cast any doubts on the integrity or competence of the honorable judges. After the restoration of the deposed judges to the position of November 2, the judicial crisis in the country will enter its new phase. On one hand, the Parliament will try to pass the new constitutional package for clipping the wings of the President, if that can really be done. On other hand, both new and old judges will be encouraged to settle their scores themselves as they did during the judicial crisis of 1997. To achieve this objective, the foundations have already been laid by the presidency by accepting Justice Falak Sher’s petition for re-determining his inter-se seniority with other judges of the Supreme Court. Justice Falak Sher has a distinguished career not only as a lawyer and as a judge but also as a teacher of law. I have the honor to be his student at Punjab University Law College where he taught us English Jurisprudence. It is indeed because of teachers like him that I was able to obtain a PhD degree in Law from Brunel University of London. Justice Falak Sher was born on September 22, 1943. He passed his BA from Government College Lahore in 1964 and LLB from Punjab University Law College in 1966. He was called to the Bar from Gray’s Inn London in 1972. He was admitted as an advocate in 1966, as an advocate of High Court in 1969 and as an advocate of Supreme Court in 1975. Keeping in view his brilliant career, he was appointed as a Judge of the Lahore High Court in I987. He took oath as a judge of LHC on March 11, 1987 and was appointed as Chief Justice of Lahore High Court in 2000. While some of his juniors were elevated to the Supreme Court before him, Justice Falak Sher was appointed as a Judge of the Supreme Court of Pakistan in September 2002 with the result that he became junior to many of the judges who were appointed as judges of the High Courts many years after him. Soon after his elevation as a Judge of the Supreme Court, Justice Falak Sher moved an application to the President of Pakistan to revise his seniority. This application was never decided by Pervez Musharraf for the reasons best known to him. Justice Falak Sher knew that President Musharraf could appoint anyone as Chief Justice of the Supreme Court under article 177 of the Constitution. Despite that he made an application to revise his seniority keeping in view the judgment in Al-Jehad Trust versus Federation of Pakistan commonly known as the Judges’ Case (PLD 1996 SC 324). According to this judgment, the most senior judge of a High Court had ‘legitimate expectation’ to be appointed as Chief Justice. Although the Judges’ Case did not extend this principle to the Supreme Court, this principle was used to remove Chief Justice Sajjad Ali Shah through a judicial coup in 1997 when Justice Irshad Hasan Khan was sworn in as Chief Justice in his place. After keeping Justice Falak Sher’s seniority application pending for almost five years, President Pervez Musharraf decided to grant him seniority and appoint him as Chief Justice during the judicial crisis of 2007. This offer was wisely turned down by Justice Falak Sher. It is quite possible that, in order implement Minus One Formula to get rid of Chief Justice Iftikhar Muhammad Chaudhry after his second restoration, the presidential camp may like to appoint him Justice Falak Sher as Chief Justice of the Supreme Court. As such a move to install a new chief justice through an administrative order may backfire the chances are that Chief Justice Iftikhar Muhammad Chaudhry will be removed in the same manner as Chief Justice Sajjad Ali Shah was dethroned by his own colleagues in 1997 during Mian Nawaz Sharif’s second term as Prime Minister. Whether or not such a judicial coup against Chief Justice Iftikhhr Muhammad Chaudhry will be successful is beyond the scope of my today’s article. dr.chishti@hotmail.com

Source: The Frontier Post, 17/4/2008

 Posted by at 9:20 pm

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