ISLAMABAD, March 16: Prominent constitutional experts on Sunday said there was no constitutional hitch in the restoration of pre-November 3 judiciary, observing that removal of senior judges under the emergency decree was unconstitutional.
Speaking at a seminar on ‘The constitutional position of the judiciary’ organised by Supreme Court Bar Association (SCBA), the bar’s president, Aitzaz Ahsan warned the incumbent Supreme Court not to block the way of restoration of deposed judges while teaming up with the presidency.
“If the incumbent judges of the Supreme Court wanted to become contentious, they should not forget the year-long movement of lawyers against President Pervez Musharraf. If lawyers could stand up against Musharraf, then why not against his hand-picked judges,” he said.
He said the ‘Murree Declaration’ reflected the aspirations of the people and if Chief Justice Abdul Hameed Dogar and Attorney General Malik Mohammad Qayyum issued any order against it, the lawyers would foil the attempt with full force. He warned that if the declaration was subverted, the legal fraternity would respond with protest calls like the ‘long march’.
Former chief justice of Pakistan Justice (retired) Saiduzzaman Siddiqui emphasised that a sovereign parliament was imperative for an independent judiciary.
He said the removal of judges, which was admittedly unconstitutional and being in defiance of Article 209 of the Constitution, could not be validated by the unilateral act of an individual through the so-called introduction of Article 270-AAA and purported amendments to 270-C in the Constitution nor could it be validated by the apex court.
He said since Article 270-AAA and 270-C (2) were not adopted by two-third majority of the parliament, they could not become part of the Constitution, adding that the power to make permanent amendment to the Constitution does not vest in the president. Nor can any court confer such a power, particularly a bench appointed through an unconstitutional instrument and acting in defiance of order dated November 3 passed by the Supreme Court established under the Constitution.
Noted jurist Justice (retired) Fakhruddin G. Ebrahim said the seven-judge bench of the Supreme Court on November 3 had said that no “principle of state necessity” allowed an individual to “make permanent changes in the supreme law”.
He said even if an individual’s power to amend the Constitution was to be conceded, such power could only be available during the period of deviation/emergency and, upon restoration of the Constitution, the power to make changes as well as the effects thereof stand completely effaced unless duly indemnified by the parliament.
Former chief justice of Lahore High Court Justice (retired) Javed Iqbal reminded that the amendments introduced in the Constitution by Gen Ziaul Haq in 1985 and by Gen Pervez Musharraf in 2002 had become part of the Constitution only after they were adopted by a two-third majority through the 8th Amendment Act of 1985 and through the 17th Amendment Act of 2003, thus November 3 actions were needed to be validated by the parliament for becoming the part of the Constitution.
He said a two-third majority of the parliament was not required to restore the deposed judges. About the judges appointed during the emergency, he said the removals being unconstitutional, no new appointments of chief justices or judges could be made against existent or non-existent vacancies, particularly without consulting the de jure chief justice.
Senior lawyer Mohammad Akram Sheikh said the cases of those judges who were appointed during the emergency period could be considered for fresh appointment in accordance with the exercise carried out in Al Jehad Trust case.
He was of the view that the November 3 order had no legal value at all and was a mere piece of paper.
He stressed that recurrence of a crime could not be stopped without punishing the offender. He stressed that mere reinstatement of judges would not satisfy the legal fraternity and the person responsible for unconstitutionally sacking them must be taken to task. He said Musharraf must not be given any indemnity from Article 6 of the Constitution and emphasised that it was the mandate of the Constitution and not a sentimental view.
Former SCBA president Munir A. Malik was of the view that the deposed judges could be restored through an executive order. He said a resolution by the parliament would strengthen the hands of the executive. He said the executive authority would rest with the prime minister, whose simple direction to Inspector General of Police, Islamabad, would enable Chief Justice Iftikhar Mohammad Chaudhry and the other judges who had been unconstitutionally sacked.
“If the democratic forces have a political will, there is no hindrance in the way of restoration of the deposed judges, he opined.
He said the Supreme Court could not give power to the army chief to amend the Constitution. He said the apex court had allowed him to amend the Constitution during the emergency.
“The power to amend the Constitution cannot extend beyond the emergency,” he observed. He said the Constitution enforced today was the one that was in force prior to November 3, 2007.
He said no wrong doer could validate his own actions. He said onus was now on Pervez Musharraf to muster support of two- third majority in the parliament to get his actions taken after proclaiming emergency endorsed.
He said the pre-November 3 judiciary stood restored on December 15. “Once the emergency was lifted we reverted back to the 1973 Constitution,” he remarked.
Citing verdict of 12-member bench of the Supreme Court in Syed Zafar Ali Shah case, he said the judges could only be removed by adopting the procedure provided in article 209 of the Constitution.
Thus, he said since the deposed judges were removed unconstitutionally, they could be restored through a simple executive order. He said people of Pakistan had mandated their representatives to restore the deposed judges, thus the judges could also be reinstated by a simple parliamentary resolution.