I have just obtained a copy of the Original supreme court order which was issued by the Honorable Supremer Court Judges before they were unlawfully overthrown by the Pharaoh (!).
On the fateful day on 3rd November when General Pervaiz Musharraf proclaimed Martial Law on Pakistan the then sitting bench of the Supreme Court was quick to issue a court order denouncing the extra-constitutional steps taken by Musharraf. The warned that these measures were taken in light of a high profile case that would have most likely have gone against he Government [motive]. In this order the President of Pakistan was prevented from taking any steps to undermine the independence of the judiciary. The order categorically prevented judges of the Supreme Courts and the Provincial High Courts from taking oath under the new PCO, and it also instructed all government officials to restrain from storming the Supreme Court and removing the sitting Bench in any manner. The order dated 3rd November categorically pronounced that any judges who took oath under this new PCO shall be unlawful and without jurisdiction. The seven member bench was headed by Chief Justice Iftikhar Mohammad Chaudhry, Justice Rana Bhagwandas, Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Nasirul Mulk, Justice Raja Fayyaz and Justice Ghulam Rabbani.
I am told that the government tried its best to tear apart this order with only a few having survived the brutality and a scanned copy is produced here. It was their attempt to make sure this remained under wraps to the extent the Registrar was on record on the 4th of Nov to have said
DAWN 3rd Nov – No order against PCO: SC registrar, The acting registrar has claimed that the Supreme Court did not overturn the Provisional Constitutional Order (PCO). “It is released for the information of all concerned that the rumour being spread that the Supreme Court has passed any order against the PCO is incorrect. “The Supreme Court has not passed any such order, a press release issued by the newly-appointed Acting Registrar of the Supreme Court Miss Saara Saeed said.
Then on the 5th of November the newly appointed bench (deemed unlawful by a preexisting supreme court order) over turned this order and nullified its contents. The logic must be analyses that if they new judges were deemed unlawful how could the assume office to over rule on this matter, I must accept that I may not be a lawyer by any means and open the discussion on the validity of such a move
DAWN Nov 6th: Order against PCO reversed, An eight-member Supreme Court bench headed by newly installed Chief Justice Abdul Hameed Dogar on Tuesday overruled a seven-judge decision that had struck down the Provisional Constitutional Order (PCO) soon after its proclamation and declared that the earlier order should not be deemed to have been passed. “The order is set aside and declared void, quorum non judice (without jurisdiction) and passed without lawful authority, the court held. The bench comprised Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, Justice M. Javed Buttar, Justice Ijazul Hassan, Justice Mohammad Qaim Jan Khan, Justice Mohammad Moosa K. Leghari and Justice Chaudhry Ijaz Yousaf.
Comments
4 responses to “SC Order dt 3rd Nov, before Bench Thrown Out”
“if they new judges were deemed unlawful how could the assume office to over rule on this matter, I must accept that I may not be a lawyer by any means and open the discussion on the validity of such a move”
there is no rule of law in Pakistan, no constitution. these courts that now purport to exist are in effect but not in nature necessarily military courts
the new SC has no legal power to reverse the de facto and de jure SC order which suspended musharrafs order
IT SIMPLY CAN’T HAPPEN
this is all a drama for western consumption
Pak Lawyer, do your thing and post your arguments up somewhere we can see them. The one-half million members of the American Bar Association who are standing in support of Pakistani Lawyers and Judciary would be very interested in your analysis. http://www.abanet.org
Assume arguendo that CJ’s order nullifying the General’s recent decrees is proper law, then he still has control of judiciary, correct? That if the courts are military courts, and not the civil courts of Pakistan, then their orders are proper as to those matters over which they have jurisdiction. If the CJ’s order stands, then the courts who are the civil courtsS of Pakistan can and must continue hearing cases and issuing orders, in fact may be under a duty to do so.
This of course assumes that there is a Constitution of Pakistan. If the CJ’s order is law, then that Constitution is still in effect. When you became a lawyer did you and every other lawyer take an Oath to support uphold and defend that very Constitution? While I would admit there there is a lot of Drama, it would seem that there is a genuine issue here of both law and fact.
Let me respond by asking you a question:
under what law are the assemblies functioning?
The constitution provides for a certain system of governance. If that constitution does not exist then it follows that that system of governance for which it provided ceases to exist.
Now to respond to your post:
1. “then he [the CJP] still has control of judiciary”
yes, clearly he does. this does not apply to those judges who have violated the court’s order, committed high treason, and got themselves sworn in again as “judges”.
ultimately, legitimacy comes from the masses and the masses do not recognize these so called new judges.
2. “If the courts are military courts, and not the civil courts of Pakistan, then their orders are proper as to those matters over which they have jurisdiction.”
By military I meant not courts of military jurisdiction but courts of civil/criminal jurisdiction acting under military appointment/direction.
3. If the CJs order stands, then the courts who are the civil courtsS of Pakistan can and must continue hearing cases and issuing orders, in fact may be under a duty to do so.
No. How can they when the constitution stands abrogated by use of sheer brutual and merciless armed force?
4. there is a genuine issue here of both law and fact
that reminds me of what one of the justices in the nixon case asked of probably the then attorney general: will the president obey the order?
If the courts are military courts, and not the civil courts of Pakistan, then their orders are proper as to those matters over which they have jurisdiction.
By military I meant not courts of military jurisdiction but courts of civil/criminal jurisdiction acting under military appointment/direction.
But if they were constituted by the Military, that being General M., they must be military courts. I assume he would have that power. That would mean the Orders of that court are valid where they have valid (military) jurisdiction and void ab initio where they have no jurisdiction. Their attempt to exercise civil/criminal jurisdiction has to be of no effect, and their orders of no validity.
I was thinking there might be a legal way out of this whole mess.
Your comment is a good one. Luckily, for America, President Nixon had a few friends who paid him a visit and said it was time to go.