OUR Constitution is the basic law of the country and is the fountainhead of all other laws, which are subordinate to and consistent with it. The oath of office is prescribed to important office-holders in the third schedule to the Constitution, and calls on them to preserve, defend, uphold and act according to the basic law.
Judges of the superior courts and officials of the armed forces also take the oath with an additional requirement for armed forces personnel — they are required to steer clear of political activities.
If the Constitution stands suspended, the oath of a judge remains intact because he acts according to law which includes a suspended Constitution, essentially an extraordinary situation. A judge, having taken oath under the Provisional Constitution Order (PCO), can declare both the suspension of the Constitution and the PCO illegal.
The country has seen constitutions abrogated in 1958 and 1969 and martial laws imposed. But the judicial system continued as it was, without any removal of judges. In 1971, after the war with India and the consequent fall of Dhaka, West Pakistan saw Zulfikar Ali Bhutto become president and the first civilian CMLA.
The martial law imposed in 1969 continued, with many government officers being dismissed and retired on grounds of misconduct, without a mandatory inquiry. However, some were retired following scrutiny of their record and in consultation with the chief justices of the high courts.
In 1977, General Ziaul Haq imposed martial law, suspending the Constitution instead of abrogating it as was done on two previous occasions. The Supreme Judicial Council was approached to investigate whether any judges in the high courts were selected for political reasons and, after an inquiry and the right of personal hearing, several were retired as political appointees.
As if this was not enough, the 1981 PCO was promulgated after the Supreme Court granted validation to the martial law, empowering the CMLA to amend the Constitution.
As a result, many judges were retired from the Supreme Court and the high courts without having their say. This PCO came after a delay of four years as the Supreme Court had granted conditional validation that required all orders and regulations passed by the regime to be subject to judicial review by superior courts. Hence, such orders were often challenged in the courts, much to the chagrin of the martial law authorities.
The martial law administration also wanted the courts cleared of non-cooperative, independent judges; hence a list from the federal ministry of law ensured that the selected ones were not invited to take oath.
In 1981, I was a judge in the Sindh High Court. The Chief Justice was instructed by the federal law secretary in Islamabad to meet the governor of Sindh, and he returned from the meeting to announce that two judges from the Sindh High Court, Abdul Hafeez Memon and G.M. Shah, would not be allowed to take oath. All other judges were asked to appear before the governor at 2 pm.
Some in the Sindh High Court argued that if all judges boycotted the oath-taking and bowed out, other pliant ones would replace them and therefore it was far wiser to fight from within. Meanwhile, events in other high courts were kept under wraps. After the oath, it transpired that countless judges had not been called and all those who declined to take the oath became heroes, garnering much admiration from members of the bar and the public.
In fact, despite attempts to conceal the events in the Supreme Court, certain proceedings did come to light. Chief Justice Maulvi Mushtaq of the Lahore High Court, who headed the bench of five judges and sentenced Prime Minister Zulfikar Ali Bhutto to death, had fallen out with President Zia.
Maulvi Mushtaq had been elevated to the Supreme Court but, although ready to take oath, he was not invited. Chief Justice of Pakistan (CJP) Anwar-ul-Haq invited all the judges of the apex court to his chamber to discuss this matter and the fact that the PCO barred the jurisdiction of the courts.
The CJP began with the junior-most on the list, ad hoc Judge Fakhruddin G. Ebrahim, who replied that although he was not party to the judgment in Nusrat Bhutto's case, he had followed it and since the PCO curtailed the jurisdiction of the court and nullified the effect and object of the judgment, he would not take oath.
For similar reasons, Justice Dorab Patel also refrained but all other judges agreed and lastly the CJP declared that since he was the author of the judgment, he too would opt out.
The actual facts remain with the federal ministry of law but rumour has it that only Maulvi Mushtaq was not invited. If this is true then apart from Fakhruddin G. Ebrahim, hats off to Dorab Patel who refused to become the CJP. It is worth a mention here that Dorab Patel, Mohammad Haleem and G. Safdar Shah had acquitted Mr Bhutto. It thus became clear that General Zia believed that under the PCO of 1981, he had the right to pick and choose judges favoured by the government and axe others.
On Oct 12, 1999 General Pervez Musharraf suspended the Constitution. Another PCO replaced the Constitution. One of the seven points in the speech the general gave shortly after taking over was his pledge to rebuild institutions. Interestingly, the Supreme Court came under attack again. Finally after a delay of three months, 15 judges were not given an oath under the PCO. These included five judges
of the Supreme Court who chose to stay out.
However, General Pervez Musharraf has the unique distinction of imposing 'martial law' twice in the same tenure. On Nov 3, 2007 he imposed emergency-plus with the suspension of the Constitution and promulgated the PCO under which he sent home 13 out of 17 judges of the Supreme Court, including Chief Justice Iftikhar Mohammad Chaudhry, and prevented about 50 judges of the high courts from taking oath.
This is how the entire judicial system was demolished to avoid a judgment from the apex court that restricted Musharraf from holding dual office — that of the army chief and the president's — and denied him eligibility in the elections if he chose to stay in uniform. President Musharraf succeeded in obtaining an interim order to proceed with the polls. Apprehending a judgment against him, the president introduced the PCO to turn the judiciary around and the new Supreme Court issued a judgment in his favour on the basis of the law of necessity.
It is surprising how the western powers have been able to digest this unconstitutional and malafide action of dismantling the judiciary, an essential pillar of democracy. How this issue has been sidelined in favour of the elections is amazing. If the elections are held, President Musharraf may have a hung parliament of his choice and the issue of restoration of judges will certainly recede into oblivion.
The writer is a former Chief Justice of Pakisan.