1.         The Constitutional Debate.                                                                                1

 

 

2.         Issue No.1 Whether the Forum was Coram Non Judice.                                   9

 

 

3.         Issue No.2 Whether the Order was without Jurisdiction and malafide.    22

 

 

4.         Issue No.3 Whether the Order was Void Ab initio and of no legal effect.           24

 

 

5.         No validation of extra-constitutional regime by Parliament.                                 28

 

           

 

 

 

In interviews telecast in “AAJ KAMRAN KHAN KE SAATH” on Geo TV on the 29^th of April, 2008, eminent constitutional experts, Mr. Abdul Hafeez Pirzada and Mr. Khalid Anwar, expressed the view that the deposed judges cannot be restored by merely passing a resolution in Parliament, followed by an Executive Order to facilitate the resumption of judicial functions by them.

 

The bone of contention in this legal debate is the Short Order dated 23^rd of November, 2007 and Judgment dated 13^th of February, 2008 of the Supreme Court, headed by Mr. Justice Dogar in Constitutional petition nos. 87 and 88 of 20077 Tikka Iqbal Muhammad Khan versus General Pervez Musharraf and others (PLD 2008 SC 178). According to the legal advisors of the President, the Order and Judgment have purportedly superseded/overruled the Short Order of the Supreme Court, headed by the de jure (legal in law) Chief Justice Iftikhar Muhammad Chaudhry, dated 3^rd of November, 2007 and validated all the extra-constitutional steps taken by the President on the 3^rd of November, 2007.

In the earlier Order of the Bench headed by de jure Chief Justice Iftikhar Muhammad Chaudhary, the Supreme Court had declared and directed that : (i) the President and the Prime Minister are restrained from undertaking any such action contrary to Independence of Judiciary; (ii) No judge of the Supreme Court or the High Court including the Chief Justices shall take oath under PCO or any other extra-constitutional steps and the COAS and all concerned civil and military authorities were restrained from acting on (the) PCO. In this connection the Court held that :

“Any further appointment of the Chief Justice of Pakistan (CJP) and the Judges of the Supreme Court and Chief Justices of High Courts and Judges of Provincial High Courts under new developments shall be unlawful and without any jurisdiction.”

 

The Short Order and Judgment of the Supreme Court headed by Mr. Justice Dogar, (i) validated the Proclamation of Emergency (PE), the PCO and the Oath of Office (Judges) Order, 2007, (Oath of Judges Order, 2007), in addition to the purported amendments to the Constitution by the President; and (ii) granted the President the power to further amend the Constitution.

The Court held that the Learned Chief Justices and Judges of the Superior Courts who were not given oath (to discharge duties and perform functions in accordance with the PE, the PCO and the law), under the Oath of Judges Order, 2007, have ceased to hold office on the 3^rd of November, 2007 and their cases cannot be re-opened being hit by the doctrine of past and closed transactions.

 

With respect to the Short Order passed by the Supreme Court, headed by the de jure CJP, on 3^rd November, 2007, it was further specifically held, at page 291 of the judgment that:

“…..Upon Proclamation of Emergency the PCO and the Oath of Office (Judges) Order 2007,… any Order passedor function performed by them (the de jure Judges of the Supreme Court) was void, coram non judice and of no legal effect or consequence”.

 

Mr. Abdul Hafeez Pirzada is of the opinion that : (i) a Constitutional Amendment is needed in order to restore the deposed Judges of the Superior Courts; (ii) in view of the doctrine of trichotomy of powers, there can be no legislation by simple resolution of the National Assembly; and (iii) the Executive cannot “undo” the Short Order and Judgment of a de jure or de facto Supreme Court, by simple resolution and/or Executive Order.

 

With respect to his first contention, Mr. Pirzada has assumed, without foundation, that the impugned amendments to the Constitution, in the period of extra-constitutional deviation, are a fait accompli.

 

It is important to keep in mind that Article 239 of the Constitution provides the one and only method of amending the Supreme Law.  Parliament is the sole authority that can make amendments to the Constitution by a 2/3 majority of the total membership of both Houses of the Majlis-e-Shoora. No other person, howsoever high, can arrogate to himself the power to amend the Constitution. 

 

Furthermore, if the Supreme Court of Pakistan cannot amend the Constitution, it is not legally or constitutionally possible for it to delegate such power to any other holder of high office and/or validate the amendments to the Constitution purported to have been made by him. This unfortunately is exactly what the Supreme Court, headed by Mr. Justice Dogar, perversely purported to do in its Short Order and Judgment.

 

The PE holds the Constitution in abeyance and the Provisional Constitution Order No. 1 of 2007, in effect, affirms the Primacy of the PCO in the Governance of the Country. Consistent with the said declaration and affirmation, the Oath of Judges Order, 2007, requires the Judges of the Superior Courts to take Oath and owe allegiance to the PE and the PCO. 

 

The Constitution is the touchstone for determining the vires of all primary and delegated subordinate legislation. If it can be suspended and/or held in abeyance or amended, in violation of Article 6 of the Constitution, at the whim and caprice of one individual, as a corollary, it would be tantamount to acknowledging that the Constitution is not the Supreme law of the land. In fact the Constitution of 1973, remains the Supreme Law of land, despite being held in abeyance, as decided by the Supreme Court in the Nusrat Bhutto case, in 1977 and in the Zafar Ali Shah case, in 2000.  

 

 

The acceptance of such a legally untenable position would also have the effect of legitimizing the period of extra-constitutional deviation and all the acts of the usurper in the said period. The first casualty in such an event will be the Rule of Law, which is firmly entrenched in Article 4 of the Constitution. Our Supreme Court has held that the said Article is one of the provisions of the Constitution that cannot be suspended even during a period of Emergency.  

 

With respect to Mr. Pirzada’s contention that there can be no legislation by simple resolution, it is important to restate the position of those who support the passage of the simple resolution, prior to the issuance of the Executive Order.  The resolution is intended to be passed in the National Assembly, only as an expression of the will of the people of Pakistan, through their duly elected representatives in Parliament. The resolution would become the moral basis for restoring the de jure Judges, by means, of an Executive Order.

 

It is also important to reiterate that the proposed simple resolution and/or Executive Order are not intended to override the Short Order and Judgment of the “incumbent Judges” of the Supreme Court. As discussed later in this Article, the proceedings in the matter before the said Judges were a nullity in law and their said Order and Judgment were without jurisdiction, mala fide, in law and fact, and of no legal effect (i.e. not existing in the eye of the law). Therefore, there is no need to secure their annulment.    

 

The proposed resolution and Executive Order are not an attempt to usurp the powers of the legislature in violation of the trichotomy of powers or separation of power doctrine, which is the underlying basis of the Constitution. In the example given by Mr. Pirzada, in 1993, the PML(N) government in the Punjab attempted to appoint Mian Azhar as the Administrator for Lahore through a resolution passed by both Houses of Majlis-e-Shoora. The High Court of Lahore, in its writ jurisdiction, frustrated the attempt. 

 

However, the facts of the present case are distinguishable. Superior Court Judges are not being appointed by virtue of the proposed resolution to be passed by the National Assembly. As stated above, the only purpose of the resolution is to morally back the Executive in restoring the de jure Judges to their rightful position before they were unconstitutionally removed, in violation of Article 209 of the Constitution, by earlier Executive Orders.

 

In support of his contention Mr. Khalid Anwar enunciated the legal proposition that an Order of a Court or its judicial interpretation cannot simply be overruled by an Executive Order. He emphasized that although he had always opposed the use of the “Doctrine of Necessity”, superseding such a judgment by way of an Executive Order would establish a very dangerous precedent for the future.

The contentions of both the experts in the matter, beg the question at hand. One cannot just state general propositions of law out of context and without referring to the antecedent facts and circumstances.

 

The legality of the removal and restoration of the judges cannot be discussed and determined without reference to the admittedly blatant unconstitutional measures taken by a usurper, in the period of extra-constitutional deviation.

 

The three (3) core issues, with respect to the modalities for restoration of the judges, are :

 

(i)                  whether the proceedings before the Supreme Court, headed by Justice Dogar, were coram non judice (i.e. not before a Court validly appointed and constituted under the Constitution) ? and, if so,

What is the legal effect of its Order and Judgment?

And, in any event,

(ii)                whether the said Order and detailed judgment by the Supreme Court are without jurisdiction (i.e. the subject matter of the dispute was outside the field within which the court is competent to act) and mala fide ?

If the answer to issues (1) and (2) are in the affirmative,

 

(iii)       whether the Executive can simply ignore the Order of the Supreme Court, as being a nullity in law and restore the de jure judges by an Executive Order ?

 

 

The legal proposition presented by Mr. Khalid Anwar presupposes an Order, decided rightly or wrongly, passed in proceedings ‘coram judice’ (literally before a ‘judge’) or ‘before a person reputed to hold the office of a judge’, under the De Facto Doctrine (judge holding office in fact).

 

In the well-known treatise on administrative law by Wade and Forsyth the de facto doctrine has been described thus :

 

“In one class of cases there is a long standing doctrine that collateral challenge is not to be allowed; where there is some unknown flaw in the appointment or authority of some officer or judge. The act of the officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no power at all”.

 

If so, the Order and/or judicial interpretation cannot be set at naught merely by passing a simple resolution in Parliament and/or an Executive Order.

 

However, when an Order is made or judicial interpretation is given in proceedings ‘coram non judice’, (literally ‘not before a judge’’) or ‘before a person who knows that he is not a judge’, it is void ab initio, due to lack of inherent power. 

 

A forum, such as one consisting of persons purporting to hold the office of judge in violation of the Short Order of the CJP dated 3-11-2007 and by virtue of having taken oath under the PCO, an act mala fide in law and fact, is not a constitutionally constituted judicial forum and its proceedings are ‘coram non judice,’ a nullity in the eye of the law.

 

It is arguable that a Judge of the Superior Court ceases to hold office of a Judge, by virtue of having taken an oath which is not compatible with holding the office of a Judge under the Constitution. The admitted position, under the Constitution and precedents of the Supreme Court, is that a judge can only be removed from office under the provisions of Article 209 of the Constitution by way of a reference to the Supreme Judicial Council. In the circumstances, the federal government can reserve the right to file references against such Judges.  

 

I understand that the ruling party has proposed that as part of overall package of judicial reforms the purported “incumbent Judges” who purported to assume office of Judges of the Superior Courts after the 3^rd of November, 2007, should be allowed to retain their position as Judges of the Superior Courts. By resolution dated the 3^rd of May, 2008 the Pakistan Bar Council (PBC) correctly reaffirmed that “the Council does not recognize those persons, who were appointed under the PCO, subsequent to the declaration of Emergency of November 3, 2007, as lawfully appointed Judges.”

 

The PBC has maintained its principled moral stand on the issue of the “PCO Judges”. Any other position in the matter would go against the legal grain and the raison d’entre for restoration of the non-functional de jure Judges, a sin quo non for the Independence of the judiciary in Pakistan. 

 

I can understand, but only to a point, the sentiments of Mr. Nawaz Sharif, in stating that for the greater good of restoration of the de jure Judges he had to accept the bitter pill for retaining the “incumbent Judges” purportedly appointed after the 3^rd of November, 2007. However, a moments reflection would make it abundantly clear that such an exception would swallow the rule (of law) that is at stake for which civil society the media, the politicians and the lawyers have tirelessly struggled.

 

According to both the major parties in the coalition and most of the minor parties the PE, the PCO and the Oath of Judges Order, all promulgated on the 3^rd of November, 2007, the constituent documents of the extra-constitutional regime, are void ab initio as being against the letter and spirit of our Constitution. Make no mistake about the fact that the main purpose for the PE and holding the Constitution in abeyance was to effect a coup against the Judiciary in Pakistan. And by virtue of the Oath of Judges Order, 2007, an inextricable integral part of the triad of un-constitutional documents, sixty (60) de jure Judges of the Superior Courts were made non-functional, with one stroke of the pen, and purportedly deemed to have ceased to hold the office of Judges of the Superior Courts. The entire recital and thrust of the PE and PCO leave no doubt, in any thinking legal mind, that without the simultaneous promulgation of the Oath of Judges Order, 2007, the sole nefarious purpose of removing the de jure independent Judges and replacing them with pliant Judges would not have been achieved. 

 

In this context let us examine the basis on which the “incumbent Judges”, appointed after the 3^rd of November, 2007, purport to hold the office of Judges of the Superior Courts:

(I)                    The admitted position is that they took Oath in violation of the short Order of the de jure CJP dated 3^rd of November, 2007;

(II)                   The oath was administered under the Oath of Judges Order, 2007 and they owe their very existence to the impugned document. There can be no two views on this issue.

 

If the correct legal position is that the Oath of Judges Order, 2007 is, on the touchstone of the Constitution, per se void ab initio, there is no fall back position for the said “incumbent Judges”. Their status under the existing body of Constitutional law would be governed by the Al-Jehad Trust case of 1996 (Judges case). Pursuant to the Judges case, no appointment to the Superior Judiciary can be made without meaningful and effective consultation with the de jure CJP, whose opinion has primacy in the matter. In the absence of such meaningful consultation the purported appointees are not even de facto Judges but merely Judicial usurpers.

 

In law there is a fundamental principle that one cannot “approbate and reprobate” at one and the same time.  In the context of the present controversy, one cannot reject the legitimacy of the Oath of Judges Order, 2007, for the purpose restoring the de jure Judges and, at the same time, accept the legitimacy of the said impugned document, for the purpose of retaining the purported Judges, it would amount to an inconceivable legal contradiction in terms.

 

In the light of the above analysis, it should be abundantly clear that such an acceptance of the purported Judges appointed after the 3^rd of November, 2007 would, amount to argument reducio ad absurdum (reducing the argument to an absurdity).

 

 

Let us now examine the position of incumbents, who were de jure Judges before the 3^rd November, 2007, but thereafter took Oath under the Oath of Judges Order 2007:

(i)                     The admitted position is that they took an Oath to protect the PCO in violation of the said Order of the de jure CJP dated 3^rd November, 2007. This in of itself constitutes grave constitutional misconduct on the part of judiciary officers, who were sworn to protect the constitution and not a document which was substituted therefor, in violation of Article 6 of the Constitution;  

(ii)                    The primary allegiance and loyalty of such purported judicial officers, was to the PCO. It should be obvious that there is no office of a Judge of a Superior Court, under the Constitution, that gives authority to or is compatible with the Oath taken by the said persons;

(iii)                   with respect to such purported incumbent Judges, it has been argued that their original Oath under the Constitution was merely eclipsed in the interregnum (ie, in the period of extra Constitutional deviation) and was revived the moment the P.E. and PCO were revoked on the 15^th of December, 2007. Therefore they are still regular Judges of the Superior Courts of Pakistan.

 

Apart from other relevant considerations, this contention is indeed legally untenable. Whereas, in spite of having violated the short order of de jure CJP dated 3^rd of November, 2007, they would continue to remain regular Judges of the Superior Courts after the revocation of the PE, the de jure Judges of the Superior Courts who, in obedience to the said Short Order, remained loyal to the constitution and their Oath to protect the same, are deemed to have ceased to hold the office of Judges of the Superior Courts of Pakistan.

 

 

Amnon Rubinstein in his treatise on “Jurisdiction and Illegality” states at page 206 :

 

“A judge de facto is one acting with colour of right and who is regarded as, and has the reputation of, exercising the judicial function he assumes; he differs, on the one hand, from a mere usurper of an office who undertakes to act without any colour of right……[ 1 ] In order that there may be a de facto judge, there must be an office which the law recognizes, and when a court has no legal existence there can be no judge thereof, either de jure or de facto. [ 2 ] There cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office.”

 

There is no office of Judge of a Superior Court, under the Constitution, that gives authority to or is compatible with a person who purports to take oath as a Judge under a PCO. Therefore one can conclude that there is no such office of Judge which the Constitution and law recognizes and when a court has no existence there can be no Judge thereof either de jure or de facto. 

 

Of course, there was no de jure Judge actually performing duties after the commencement of the period of extra-constitutional deviation. In this case, as the non functional de jure Judges of the Superior Courts were mala fidely, unconstitutionally and illegally detained in their homes and restrained from attending office and performing judicial functions, without any order, legal or otherwise, the persons purporting to hold office as Judges of the Superior Court today cannot take advantage of the wrongful action and their complicity therewith, in order to be able to claim that they are de facto Judges and/or that, in any event and notwithstanding anything in the Constitution and law to the contrary, their Short Order dated 23^rd November, 2007, and Judgment dated 13^th February, 2008, should be deemed to be valid in law.

 

In a recent judgment, in the case Coppard v. C & E Commissioners, the Court of Appeals in England observed that :

“the de facto doctrine cannot validate the acts, nor therefore ratify the authority, of a person who, though believed by the world to be a judge of the court in which he sits, knows that he is not. We accept, on well-known principles, that a person who knows he lacks authority includes a person who has shut his eyes to that fact when it is obvious, but not a person who has simply neglected to find it out. We will call such a person a usurper.” [(2003) 3 AER 351 at p. 356].

 

In the light of a Coppard case, all persons, without exception, purporting to hold the office of Superior Court Judges today do not even qualify as “De facto Judges”, in the eye of the law.  In all probability, in order to avoid a constitutional lacuna, the good faith Orders, Judgments and Decrees of such Superior Court, in the period of extra-constitutional deviation, would require validation.

 

The Coppard case has added a wrinkle to the principles governing that De facto Doctrine. In the case of a person who has taken oath under the PCO, in violation of the Short Order of the CJP dated 3-11-2007, his lack of authority is obvious to him, but he shuts his eyes to the fact. In the circumstances, neither his office nor his acts are protected. It seems that the English case has identified a new category of “judicial usurpers”, in addition to military dictators, on the cutting edge of constitutional law in Pakistan.

 

(iv) With respect to the said purported incumbent Judges, it has also been argued that as they took a fresh Oath under the Constitution, after the revocation of P.E. their position has now been regularized. In this connection, it is important to bear in mind that in period of extra-constitutional deviation, the said persons took an invalid oath to protect the PCO. And after the revocation of the PE, in accordance with sections 4 and 5 of the Revocation of Proclamation of Emergency Order, 2007, dated December, 15^th 2007, intended to and took oath under the constitution, as purported to have been amended by President Musharraf and validated by them. In the circumstances they cannot in the eye of law be deemed to be Judges of the Superior Courts as mandated by the Constitution.  

 

If we were to take the argument for acceptance of such purported incumbent Judges to its logical conclusion the legal dilemma again comes to the fore. Their position as Judges of the Superior Courts cannot be validated without reference to the void ab initio, Oath of Judges Order, 2007. 

 

One of the ways in which their status as Judges could be deemed to have been validated, to my mind inconceivable, is, as done in the past, in connection with the Oath of Judges Order, 2000. The position of Superior Court judges who had taken oath under the Oath of Office (Judges) Order, 2000 was protected under Article 270C of the Constitution, which was initially inserted by the LFO and subsequently validated by the 17^th Amendment Act, 2003.

 

President Musharraf has again purported to do same in 2007. By virtue of the impugned Article 270AAA, the said void ab initio Order was purportedly inserted and given Constitutional cover in Article 270C.

 

Would even the ruling Pakistan Peoples Party (PPP) accept the incorporation of the Oath of Judges Order, 2007, in the Constitution. If so, and later validated by Parliament, can the restoration of the de jure Judges be justified. Who would have the last laugh ? Would it be the President and his coterie of high powered lawyers ?

 

 

However, as of today and in the absence of a further valid amendment to Article 270C, by the Parliament, in accordance with the 2/3 majority requirement mandated by Article 239, it is arguable that the “incumbent Judges”, who held the office of de jure Judges before 3^rd of November, 2007, but took oath under the Oath of Judges Order, 2007, are deemed to have abdicated and/or relinquished their office as Judges under the Constitution. As stated above, the government of the day can reserve the right to file references against such Judges.

 

 

If, as part of a compromise constitutional package, it is agreed that such PCO Judges are to be retained, it would be necessary for them to take a fresh Oath of Office as Judges of the Superior Courts after a one time amendment in the constitution has been made in the Constitution for that specific purpose. 

 

In any event, if the “incumbent Judges” are to be retained, against the raison d’entre of the civil rights movement, it would be necessary to pass, simultaneously, an Act of Parliament and separate Provincial Acts, under Articles176 and 192 of the Constitution, respectively, in order to increase the number of Judges of Superior Courts of Pakistan as required. 

 

Issue No. 2                 WHETHER THE ORDER WAS WITHOUT JURISDICTION AND MALAFIDE ?

 

The said Short Order and Judgment of persons purporting to holding the office of Supreme Court today are, on the face of it, unconstitutional, as they validate the act of holding of the constitution in abeyance, in violation of Article 6. 

 

Article 209 of the Constitution provides the only constitutionally mandated procedure for the removal of a judge of the Superior Courts. A reference against a judge can only be inquired into by the Supreme Judicial Council and the Supreme Court has no jurisdiction in the matter. The Order validating the removal of the de jure judges is therefore one passed’ without jurisdiction’.

 

In the Zafar Ali Shah case of 2000, after holding that the cases of the Judges who had not been given or taken oath under the Oath of Judges Order, 2000, were hit by the doctrine of past and closed transaction, the court specifically enunciated the general principle of law to avoid a recurrence in the future, thus: “…..clearly, the Judges of the Superior Judiciary enjoy constitutional guarantee against arbitrary removal they can be removed only by following the procedure laid down in Article 209 of the Constitution by filing appropriate reference before the Supreme Judicial Council and not otherwise.”

 

It is indeed ironic that even in the Short Order dated 23-11-2007, the Supreme Court, headed by Mr. Justice Dogar, declared that the cases of the de jure Judges cannot be reopened, as they were hit by the doctrine of past and closed transactions. However, yet again the Court categorically held that the Judges of the Superior Courts are subject to accountability only before he Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution. I am sure the double standard involved must be obvious to all concerned.

 

The said persons also sat in judgment in their own cause. They validated, without due process of law, the removal of the 60 judges, who did not take oath or were not called upon to take oath. In so doing, they were, in fact, purporting to legitimize their own oath under the PCO and retention as judges of the Supreme Court. The Order is ‘mala fide’ on this count as well.

Issue No. 3                 WHETHER THE ORDER WAS VIOD AB INITIO AND OF NO LEGAL EFFECT ?

 

In Jamal Shah’s (PLD 1966 SC 1), it was observed that an act or order, without jurisdiction is void and a nullity, that is, it is of no legal effect and has no existence in the eye of the law. And in Ronaq Ali’s case (PLD 1973 SC 236), the Court reiterated the proposition that “where an inferior tribunal or Court has acted wholly without jurisdiction or…..taken any action beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognizes a privilege to err, then such action amounts to a usurpation of power unwarranted by law and such an act is a nullity : that is to say, the result of a purported exercise of authority which has no legal effect whatsoever.”

 

The Executive can simply ignore it and take whatever remedial steps it deems necessary in order to restore the status quo ante i.e., restore the non-functional de jure judges to their rightful position, as of the 2^nd of November, 2007.

 

 

It was held in Mahmud Alam’s case (PLD 1970 LAHORE 6 at page 26) that : “There are many other decision and we find sufficient authority in support of the proposition that an act or an order which is a nullity, has simply to be ignored and proceedings need not be initiated to get it annulled. In case, however, the order or action which is nullity is to be enforced against the person affected by it, that person at that time will be entitled to challenge the same on the basis of it being a nullity.”

 

The Superior Courts in Pakistan have also held that “disobedience or disregard of the order of a court, passed without jurisdiction does not amount to contempt of court. The court, in Muhammad Zafar Bukhari’s case (PLD 1997 SC 351 at page 365) quoted with approval the ruling in R. v. Hollis 1819, 2 Stark. 536 : R v. Soper 1825, 3 B & C 857, wherein it was held that “a person cannot be found guilty of disobedience to an order of justices if the order was made in a matter in which they has no jurisdiction”.

 

In this connection twenty one (21) former judges of the Superior Courts, including five (5) Chief Justices of the Supreme Court issued a joint statement affirming that :

 

(a)        the removal of judges under the Emergency Decree of the 3^rd of November, 2007 was unconstitutional and in violation of Article 209 of the Constitution which provides that judges of the superior courts can only be removed by reference to the Supreme Judicial Council; and

 

(b)        only a resolution, passed by simple majority, by the National Assembly would be more than   sufficient backing for the Executive to take immediate obligatory measures under Article 5 and 190 of the Constitution to reinstate the deposed judges.

 

In view of the opinion expressed in this article, the Government should adopt the following steps in order to resolve the judicial crisis:

 

(a)                the de jure Judges should be facilitated in resuming their judicial functions by means of a parliamentary resolution for that purpose and Executive Order for implementation thereof.

 

(b)               If as part of a compromise constitutional formula the PCO Judges, who held the office of de jure Judges before 3^rd of November, 2007, but took oath under

 

 

the Oath of Judges Order, 2007,are to be retained, it would be necessary for them to take a fresh Oath of Office, after necessary amendment in the Constitution, for that specific purpose. Such a course of action would also obviate the need for any reference whatsoever, and/or incorporation of the Oath of Judges Order, 2007, in the Constitution.

(c)                With respect to PCO Judges, appointed after the 3^rd of November, 2007, if it is deemed necessary, appointments can be made de novo, in accordance with the body of Constitutional law--i.e. with meaningful and effective consultation with the CJP--- 

 

If the history of our Constitutional deviations and validations granted by the Constitution (Eighth Amendment) Act, 1985 and the Constitution (Seventeenth Amendment) Act, 2003 are a guide to the future, President Musharraf will also of necessity (no pun intended), finally attempt to secure ex-post facto validation of all extra-constitutional measures by the new Parliament. The said validation will, in all probability, take the form of the Constitution (Eighteenth Amendment) Act, 2008. 

 

Such validation will be sought, despite protestations to the contrary by the law officers of the regime (ever since the Supreme Court, headed by Justice Dogar, purported to validate the unconstitutional measures, on the 23^rd of November, 2007) merely in order to avoid confirming doubts about the legitimacy of the regime.

 

As the entire extra-constitutional regime that was imposed on the nation on the 3^rd of November, 2007 was void ab initio, concerned citizens and the lawyers community have, from day one, voiced the genuine hope that this time round the new Parliament would resolutely refuse to be manipulated into validating measures, such as the PE the PCO and the Oath of Judges Order, 2007.   

 

True to form of military usurpers and a possible understanding with the ruling party, of late the establishment and some elements in the Government of the day have very subtly started preparing the ground work for validation of the extra-constitutional regime by the Parliament.

 

First the spokesmen for the establishment attempted to create the impression that President Musharraf, armed with the power to dissolve the National Assembly, under Article 58(2)(b) of the Constitution, was still a credible force to be reckoned with. The spokesmen sought to impress upon the ruling coalition that a confrontation with the President at this juncture would be self defeating. And accommodation with the President was imperative for the survival of the new political dispensation.

 

Recently, the spokesmen for the Government have started expressing the opinion that in the absence of validation of the extra-constitutional regime by the new Parliament, by way of impugned Article 270 AAA, the President is liable to be prosecuted under Article 6 of the Constitution, for high treason, for abrogating subverting and/or holding the Constitution in abeyance or impeached by the Parliament. 

 

What needs to be emphasized here is that the inextricable linkage, between the two issues, implicit in the contention of the Government spokesmen does not exist. The refusal of Parliament, in principle to validate the PE the PCO and the Oath of Judges Order 2007, does not necessarily entail automatic prosecution of President Musharraf under Article 6 of the Constitution and/or impeachment by Parliament.

 

The admitted position is that Article 6 of the Constitution is not self executory. Further more, successive Government have allowed the High Treason Act 1973 to remain dormant to date, as no person has ever been authorized, as required by section 3 thereof, to file a complaint, in writing, to enable a court  to take cognizance of an offence under the Act.

 

Furthermore, even the process of impeachment of the President by Parliament, under Article 47 of the Constitution, is not something that the Government can initiate without ensuring that it can muster the requisite weighted majority required for the purpose. The process of impeachment requires (a) one third of the members of either house to move such a resolution and  (b) a two third majority of the total strength of both houses of Parliament, in joint sitting, to successfully carry the day. In the existing political environment this does not seem to be a plausible option.

 

As suggested, President Musharraf and his advisors are more concerned with the absence of constitutional cover and legitimacy of his actions, per se or, the 3^rd of November, 2007 than his legal or moral culpability under Article 6 of the Constitution and/or the possibility of initiation of proceedings for impeachment in Parliament.

 

If there are any lingering fears or apprehensions in the Presidential camp, with respect to his personal liability for his wrongful actions, as there must be, Parliament can consider addressing them by providing indemnity and/or condonation for purposes of Article 6 in any possible constitutional package. That is the bitter pill, if at all, that the nation may, as quid pro quo, have to swallow. But validation, through impugned Article 270AAA, by Parliament of the President’s unconstitutional measures, per se, in abrogating, suspending and/or holding in abeyance the Constitution should be avoided, at all costs, this time round.

 

In order to complete the transition to democratic rule it will be necessary to validate only: (a) the good faith past and closed transactions of the Executive; and (b) the good faith Orders, Judgments and Decrees of the Superior Courts during the period of extra-constitutional deviation.  Only such limited validation would be consistent with and a logical corollary to the ruling party’s intention to introduce an amendment to the Constitution, prohibiting judges of the Superior Courts from validating extra-constitutional regimes.

 

It has recently been reported in the press that President Musharraf, as the quid pro quo, for relinquishing his power to dissolve the Parliament under Article 58(2)(b) has asked the ruling party to include in the proposed constitutional package a blanket cover to all actions taken by him on and after the 3^rd of November, 2007. The proposed cover would extend to the PE and the PCO and Oath of Office (Judges) Order 2007.

 

In facilitating the resumption of judicial functions by the de jure judges, by means only of an Executive Order, rather than as part of a constitutional package, the Parliament will, in fact, set a salutary and seminal precedent for the future. For the first time, in the long history of martial law and/or extra-constitutional regimes in Pakistan, it will have repudiated the attempt by a military dictator to abrogate, subvert and/or hold the Constitution in abeyance. 

 

In justifying the utterly unconstitutional exercise of power by the Chief of Army Staff the Supreme Court, headed by Justice Dogar, raised doubts regarding the legitimacy of its own validation. At page 271 of its judgment it held that:

 

“ The emergency if proclaimed under the Constitution, the President could not have dealt with the above situation. Therefore, the Chief of Army Staff justifiably decided to take extra-constitutional step by means of the Proclamation of Emergency as in the past the constitutional deviation by the Chief of Army Staff/Armed Forces were validated by the Parliament in similar circumstances”.

 

It is absolutely imperative, if we are to end, once and for all, the cycle of successive Martial Laws, PEs and PCOs and subsequent ratification, as a fait accompli, that this time round the PE and PCO, the Oath of Judge Order, 2007 and impugned amendments should not be validated by the Parliament. 

 

The new parliamentarians can thus seize the moment and make a niche for themselves in the annals of the constitutional history of Pakistan.

 

 (Zain Sheikh is an Advocate of the Supreme Court)

 

***Article on the Constitutional Path 3***