Restitution of judges: A case for constitutional survival

Huzaima Bukhari & Dr. Ikramul Haq
Huzaima & Ikram

After lapse of mutually-agreed and self-imposed condition of 30 days on April 30, 2008 for the restitution of judges announced in Bhurban on March 9, 2008, a new deadline of May 12, 2008 has been announced by Mian Nawaz Sharif in Lahore on May 2, 2008. This delay once again proved the lack of political commitment on the part of majority party. Their leadership may have many pretexts, valid or invalid, for not following the deadline or deviating from the original declaration promising the restoration of status quo ante of November 2, 2007 without any conditionality.

The long-drawn parleys between Nawaz Sharif and Asif Ali Zardari for implementation of Murree Declaration of March 9, 2008 on restitution of judges has serious implication for determining whether 8-year-long dictatorial rule in Pakistan will end or not. The issue of restitution of judges (reinstatement is wrong notion as they are still judges) is in fact a question of great important vis-à-vis constitutional rule in Pakistan. In parleys between leaders of coalition partners in Karachi, Dubai 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 from apex court. One wonder why the political forces are not uprooting the root-cause by impeaching the unconstitutionally-imposed President, rather than waiting for his purported further illegal actions.

Illegally removed judge, 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 in judiciary and political parties, has managed to create confusion in this regard. The 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. The decision does not elaborate under what authority of law Chief of Army Staff could impose 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.

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 Naik 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 by the 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, Khalid Ranjha, 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 an Act is passed by the parliament nullifying the above-referred judgements. In addition, 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. Thus, 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.

The Parliament, irrespective of allegiance of individual members, must rise to the occasion—which is their historic challenge—to take the following steps for the restitution of illegally deposed judges, which also take 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 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 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.

The writers (ikram@huzaimaikram.com), tax advisers, legal historians and authors, are visiting Professors of Lahore University of Management Sciences (LUMS).