November 15, 2007	Thursday	Ziqa’ad 04, 1428

LAHORE, Nov 14: The Pakistan Lawyers’ Forum (PLF) has asked the Supreme Court through an application not to place its petition, challenging the candidature of Gen Prevez Musharraf for president’s office, before the judges who have taken oath under the Provisional Constitution Order (PCO).

The application seeks the petition to be placed before the judges who had been hearing the case before the imposition of emergency.

PLF counsel A K Dogar advocate said since the Constitution, after its suspension, had become hostage to the will of the chief of army staff (COAS), the judges too became subservient to the regime after taking oath under the PCO.

The counsel quoted several excerpts from different judges to support his contention that the judges, sworn in under the PCO, had no constitutional, moral and lawful power to hear the petition.

Referring to Mr Justice Yaqoob Ali’s observations in Asma Jillani case, the counsel said: “Another view is that the Judges of Municipal Courts who have taken oath of office to preserve, protect and defend the Constitution will not break the oath and declare that because of the superior will of the usurper they have been relieved from their legal obligations. If the Judges find the executive organ of the State unwilling to enforce their decrees and orders, the only course open to them is to vacate their office. Those who are desirous of serving the usurper may take office under the Lea Order imposed by him, but this depends upon the discretion and personal decision of the judges and had no legal effect. If they adopt the second course they will be acknowledging that might is right and become collaborators with the usurper.”

The Forum further quotes Justice Yaqoob: “...My own view is that a person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law-making. May be, that on account of his holding the coercive apparatus of the State, the people and the courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and courts will not recognise its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers.”

The Forum said the then Chief Justice Mr Justice Hamoodur Rahman had chided the legal fraternity for not raising the question of illegitimacy of a military regime and observed: “an equal duty lay on the gentlemen of the bar as well to raise this question.”

The Forum also quoted Al-Jehad Trust case, wherein Mr Justice Ajmal Mian said: “It is the duty of advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of judges. They should protest earnestly and actively against appointment or selection of persons who are unsuitable for the bench and thus should strive to have elevated thereto only those willing to forego other employments, whether of a business, political or other character, which may embarrass their free and fair question before them for decision. The aspiration of advocates for judicial positions should be governed by impractical estimate of their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves.”

“The Judges of the Supreme Court and the High Courts when they enter upon their office, are required to swear on oath that ‘they will preserve, protect and defend the Constitution.’ The reason why the Judges of the Supreme Court and the High Courts have to take a similar oath can in my opinion be found within the simple provisions of Article 58. It is there provided for all persons in Pakistan that in any case where it becomes necessary for them to assert in their interest, any provision of the Constitution, they shall have access to the High Court and through the High Courts to the Suprme Court as of right and these two Courts are bound by their oath and duty to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects safe from all defect or harm, and to stand firm in defence of its provisions against attack of any kin. The duty of interpreting the Constitution is in fact a duty of enforcing the provisions of the Constitution in any particular case brought before the Courts in the form of litigation...”

Thus the judges of the Supreme Court are bound by their oath to keep the Constitution “fully alive” and “to stand firm” in defence of its provisions against attack of any kind, the PLF pleaded.

The Forum said it was for the fifth time that this unfortunate country had been ‘subjected to attack by its own armed forces.’ “The learned judges are well-aware that no person can abrogate, suspend or hold in abeyance the Constitution given to themselves by the people of Pakistan...” it added.