LAHORE, Nov 7: PPP Senator Farooq H. Naek has said that all judges of superior courts who were either not administered oath under the Nov 3 Provisional Constitutional Order (PCO) or who refused to swear allegiance to the new document should be given an opportunity to take oath under the 1973 Constitution in case it was restored in the days to come.
Similarly, he said, new judges inducted after the enforcement of the PCO should also be given fresh oath under the Constitution provided they showed performance and ability for the slots they were occupying.
Senator Naek, who is also a member of the Pakistan Bar Council, said this while talking exclusively to Dawn on Wednesday. What the prominent PPP lawyer said means that deposed Chief Justice of Pakistan Iftikhar Mohammad Chaudhry and dozens of judges of the superior courts ‘affected’ by the PCO should be allowed to perform their judicial functions after the restoration of the Constitution and being administered oath thereunder.
He said the proclamation of emergency as well as the PCO was illegal and unconstitutional. He said under Article 232 of the Constitution, only the president had powers to proclaim emergency in case the government could not be run according to the Constitution and there was internal disturbance. If the situation had become worst enough warranting the proclamation of emergency, then the prime minister and the chief ministers should have been removed because of their admitted failure, he said.
He said it was regrettable that instead of removing the prime minister or the chief ministers, only ‘selected’ judges of the Supreme Court and High Courts were asked to take oath under the PCO “which is an illegal and unconstitutional document”.
Senator Naek said the Constitution did not permit the promulgation of the PCO and that too by the chief of army staff. “This is martial law in the guise of emergency”.
Replying to a question, he said as a matter of principle and equality before law, all the judges of superior courts should have been asked to take oath under the PCO. He said those who had declined to take fresh oath had done so because of the “illegality and unconstitutionality of the PCO”.
“In case the Constitution was restored, all these judges should be asked to take oath under the Constitution “.
Answering another question, Senator Naek said: “Only the time will decide whether anybody is punishable for committing high treason under Article 6 of the Constitution”.