Truth Comes Out Again

Who is creating confusion and why?
Sunday, April 13, 2008 , The News International, Pakistan
By Dr Ikramul Haq

The proponents of the status quo and cronies of Musharraf are trying to hinder the revival of democracy, restoration of the illegally deposed judges, rule of law and constitutionalism. Unfortunately, certain elected members and judges have also become a part of this conspiracy against the people of Pakistan, who gave a clear verdict on Feb 18 against Musharraf and in favour of a free Pakistan with an independent judiciary.

By this time, Musharraf should have stepped down, but the vested interests (national and international) want him to continue. The statement of Defence Minister Chaudhry Ahmad Mukhtar, a close friend of Musharraf's most-trusted aide, Tariq Aziz, that the president Musharraf "is an asset and internationally-sellable commodity" indicates where the conspiracies are being hatched.

The issue of the restoration of the judges is in fact a question of great importance that will determine whether we are going to progress politically. It must be remembered by Asif Ali Zardari that the deposed judges never ceased to be judges, and hence the question is not their reinstatement but the revival of the status quo ante. Who is hindering that revival? The forces which do not want to see Pakistan become a true democratic country, economically self-reliant and free from the political subjugation of Washington and its allies. The issue is thus not only that of the restitution of judges alone but of our survival as a sovereign state.

Behind the bizarre episodes of March 9, 2007, and Nov 3, 2007, is the struggle between the proponents of cronyism and advocates of rule of law. Pro-establishment forces even in the wake of elections of Feb 18 want to make this nation subservient to foreign masters and to ensure that there is no room for judicial activism in this society as a means to empower the people. The Musharraf-picked apex court in the Tika Iqbal Muhammad Khan vs General Pervez Musharraf and others (PLD 2008 Supreme Court 178) admitted that judicial activism justified the imposition of emergency on Nov 3, 2007. This shows why the chief justice of Pakistan, Iftikhar Mohammad Chaudhry, and other independent judges are a threat to the forces of status quo. For them, an independence judiciary would be suicide, but for the advocates of the rule of law dispensation of justice through an independent and efficient judiciary can alone guarantee democracy in its true sense and spirit.

The issue of ousting of the judges, their house arrests, and now the hindrances in their restitution cannot be examined in isolation. This confirms that even after 60 years of existence as a nation we have miserably failed to abide by democratic rules.

At the heart of the concept of democracy is the assurance for citizens that their affairs are going to be managed by a responsible government. 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 since 1948 was wastage or plunder public money, forcing the people into international debt enslavement and mercilessly flouting all rules and laws. Therefore, if we have failed to establish 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.

It has been said that "the prime minister apprised the president of the situation through his letter of 3rd November 2007" for imposition of emergency, and on the other order passed by the chief of the army staff is approved, which is self-contradictory. It has not been elaborated under what authority of law did the chief of the army staff impose the emergency on the advice of the prime minister. It is held that judges who have not been given, and who have not taken, oath under the Oath of Office (Judges) Order, 2007, have ceased to hold their offices on Nov 3, 2007, and that their case cannot be reopened. Since the Oath of Office (Judges) Order, 2007 is not valid law, any proceedings taken in pursuance of the same are void ab initio. There is only one method provided in Article 209 of the Constitution to remove any judge of Supreme Court or a High Court.

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 the Supreme Court can restore the pre-Nov 3 judiciary. The matter is of a simple legal nature and should be resolved through a legal procedure rather than entering into political polemics and undue controversies.

This will not be the first time that parliament will nullify a judgement of the apex court. Article 165 did it as early as in 1985 and thereafter numerous precedents are available, which Mr Farooq A 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 restored without any interference on the part of the executive. If done through an executive order it will set as bad an example as by Musharraf on Nov 3. In future, any chief of the army staff or government can resort to such an illegality.

There is no need for any constitutional amendment, for which a two-third majority is required, as propounded by Rashid Quershi, Malik Qayyum and Ahmad Raza Kasuri. The Supreme Court after the restitution of the pre-Nov 3 judges will certainly take cognisance of the matter or on the initiation of the aggrieved party (which is the 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 who were illegally removed are still judges as the action of Nov 3, 2007, was declared void by the 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 the Constitution, all executive and judicial authorities throughout Pakistan are legally required to act in the aid of the Supreme Court. Thus, the new government is duty-bound to implement the order of the seven-member bench of apex court of Nov 3, 2007.

The writers are legal historians and are visiting professors at the Lahore University of Management Sciences. Emails: huzaima@hotmail.com and ikram@huzaimaikram.com