Huzaima Bukhari and Dr Ikramul Haq
The historic joint press conference in Islamabad on April 22, 2008 by Nawaz Sharif and Asif Ali Zardari has finally sent a message to Musharraf and his allies that implementation of Murree Declaration of March 9, 2008 will prove a final death blow to dictatorial rule in Pakistan. The issue of restitution of judges (reinstatement is wrong notion as they are still judges) is in fact a question of great important determining whether as a nation we are going to progress or retard. In two-day parleys between leaders of coalition partners, the final draft of resolution to be presented in the Parliament has been finalized and consensus is reached for restoring all the judges without any conditionality or reservation. It is heartening to know that it has been realised that illegally removed judge, in fact, never ceased as judges. They are still judges; hence, 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. Certain quarters, including some members of legal fraternity, are of the view 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. They conveniently ignore the fact that these judgments are coram non judice as issued after seven-member bench declared action of November 3, 2007 illegal. These judgments 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 the method provided in Article 209 of the Constitution. The above-referred judgments of apex court, issued after seven-member bench declaring action of November 3, 2007, are untenable without any iota of doubt. It is the duty of the present government under Article 190 of the Constitution to implement the judgement of seven-member bench declaring the action of November 3, 2007 as unlawful. The following steps will be sufficient for the restitution of illegally deposed judges and taking care of other important constitutional and legal issues: In its resolution, newly-elected parliament denounces all the acts taken on November 3, 2007 and thereafter by resolving that that for a true democratic and constitutional rule, a strong and independent judiciary is a sin qua non. The following bills should be tabled and passed: o Bill for ‘High Treason Act 1973 (Amendment Act 2008). This Act amending High Treason Act, 1973 should provide that 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. o 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 2nd November 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. o 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 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 Constitution, and extending its scope to all. 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.
Source: The Frontier Post, 24/4/2008