Let sacked judges be restored
By Sajjad Ali Shah: Dawn, December 5 2007
PAKISTAN was born 60 years ago and we are still at the elementary stage of learning the art of Constitution-making. To preempt the subversion of the Basic Law by military rulers, the architects of the Constitution of 1973 incorporated Article 6 which deems a person abrogating the Constitution by force to be guilty of high treason.
When General Ziaul Haq suspended the constitution and imposed martial law in July 1977, the Supreme Court validated the move on the ground that the Constitution was not abrogated but suspended for a short time. This was treated as an extra constitutional step that was protected and validated by the parliament by the eighth amendment.
Thus the Supreme Court validated the violation of the Constitution as an extra constitutional step on the ground of state necessity, ignoring Article 6 completely. Then, the parliament elected with the backing of the military government in power gave this act constitutional cover and made it a part of the constitution under the eighth amendment. So this is how the practice of introducing patch-work in the constitution was initiated. It was judicial surgery followed by parliamentary surgery that attempted to validate the military’s move.
Blame can be equally apportioned to the three pillars of the state, namely, the executive, the judiciary and the parliament in their pursuit of power sharing. I have always wondered whether the “suspension of the Constitution”, though temporary in nature, is not the subversion of the Constitution. If not, then why have the words “the subversion of the constitution” in the Basic Law?
There should be a proper debate in the parliament on the language used in Article 6. Suspension of the constitution amounts to mutilation rendering it non-workable and inoperative for a considerable time, which is easily covered by the article on the subversion of the Constitution, open to punishment.
The moot point is whether an act done outside the constitution is a violation. If yes, then it cannot be condoned on the ground that it is for a short time only and justified as an extra constitutional measure on the basis of the law of necessity.
In Oct 1999 General Pervez Musharraf, the army chief, suspended the constitution and imposed martial law. The Supreme Court validated his action in the Zafar Ali Shah case following the precedent of the Begum Nusrat Bhutto case. Elections were held and with the active assistance of the MMA, one of the opposition groupings, the parliament passed the 17th amendment giving constitutional cover to all extra constitutional steps taken by Musharraf.
Musharraf thus continued as chief of army staff. He wanted to be elected again as president for the next term by the same assemblies. It was a matter of necessity for him to wear both his caps and continue in uniform as he drew his power and protection from the army.
He was, however, not eligible for election as president because his uniform came in the way since a serving general could not engage in politics until two years after his retirement. He was not elected by the electoral college — that is the federal legislature and the provincial assemblies — as required by the constitution. Other options, such as the referendum and a vote of confidence by assemblies, were adopted.
The term of office of the president under the 17th amendment was to end before the term of the assemblies expired. Hence the president wanted to be elected by the same assemblies for the second time. Meanwhile the Supreme Court launched its programme of judicial activism and gave bold decisions on the sale of the Pakistan Steel Mill and initiated proceedings on tracing missing persons allegedly in the custody of the intelligence agencies. This was a blow to the government’s ego.
It was then that the decision was taken to teach a lesson to the judiciary and get rid of Chief Justice Iftikhar Mohammed Chaudhry. He was suspended, maltreated and taken into custody and a reference for his removal was filed before the supreme judicial council. The lawyers, journalists, civil society, and political parties came out to defend the Chief Justice.
The media played an important role in highlighting the minute-to-minute proceedings against him. Lawyers were beaten up and TV channels were attacked. Ultimately the Chief Justice was reinstated by his brother judges on July 20. This was a great victory for the judiciary and the government was crestfallen.
When the election of the President by the same assemblies for a second time was challenged in the Supreme Court, the court did not grant a stay order but restrained the chief election commissioner from issuing the final notification.
The emergency was declared by the chief of army staff — not the President as empowered by the Constitution — and the Constitution was suspended. The Provisional Constitution Order (PCO) was issued with the idea of sending Chief Justice Iftikhar Chaudhry home along with several other judges. The act of dismissing 50 judges in one go was the biggest blow the judiciary has ever known in Pakistan. A seven-member bench dismissed all the petitions against the President, confirming that his election was valid.
Now the president has nothing to fear from the judiciary. It is going to be smooth sailing for him. On Nov 3, Chief Justice Iftikhar Chaudhry heading a bench had issued an order restraining the government from proclaiming an emergency and issuing the PCO but this order could not be implemented. So the main purpose of the PCO is to punish the judges for dispensing justice according to the law.
The latest order of the newly inducted Supreme Court which gives a clean chit to the President has once again followed the rule laid down in the cases of Begum Nusrat Bhutto and Zafar Ali Shah that considered the action of the president as merely extra constitutional on the basis of the law of necessity.
The Supreme Court has validated the move that now has to be validated by the next elected parliament. The western powers, including America and Europe, want President Musharraf to continue as president with an elected secular government so that the war against terror continues uninterrupted.
Many political parties have entered the polling campaign for the Jan 8 election. The president has announced that the emergency and the PCO will be withdrawn and the Constitution restored on Dec 16. But there is no talk of restoring the judges, who became victims of the PCO.
Are we going to forget them? I feel the political parties should not participate in the elections if the sacked judges are not restored. If the judiciary is honest and independent, the system will work successfully. Power-sharing is not a substitute for democracy. It is time to save the country and its system, which can be done through democracy, transparent elections and the elimination of martial law.
The writer is a former Chief Justice of Pakistan.