Ex-Top Judges Say a Simple National Assembly Resolution will Be Sufficinet to Reinstate Deposed Judges

Ex-judges say NA resolution enough for reinstatement
Dawn, March 16, 2008

KARACHI, March 15: Eight former judges of the Supreme Court, three chief justices among them, have affirmed that the removal of judges under the emergency decree on Nov 3 was unconstitutional and that a resolution in the National Assembly would be “more than sufficient” for their reinstatement.

“The removal of judges, which was admittedly unconstitutional being in defiance of Article 209 of the Constitution, could not be validated by the unilateral act of one 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 Supreme Court,” the former judges said in a joint statement released on Saturday.

“Since Article 270-AAA and 270-C (2) have not been adopted by two-thirds majority of the parliament, they are not part of the Constitution.

“The power to make permanent amendment in 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 Nov 3 passed by the Supreme Court established under the Constitution,” the statement went on to say.

The statement was signed by Justice Ajmal Mian, Justice Sajjad Ali Shah and Justice Saiduzzaman Siddiqui, former chief justices of Pakistan, Justice Fakhruddin G. Ebrahim, Justice Deedar Hussain Shah, Justice Mamoon Qazi, Justice Nasir Aslam Zahid and Justice Kamal Mansour Alam.

The former judges said no “principle of state necessity” allowed an individual to “make permanent changes in the supreme law”.

“Even if an individualised power to amend were to be conceded, such power can 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.”

The statement recalled 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-thirds majority through the 8th Amendment Act of 1985 and through the 17th Amendment Act of 2003.

“Accordingly, a two-third parliamentary majority is not required to restore deposed judges.

“A simple resolution in the National Assembly reflecting the intention of the people’s representatives to deny affirmation to the purported amendments would provide more than sufficient backing for the executive to do the needful which is, in any event, obligated under articles 5 and 190 of the Constitution to take immediate measures restoring all Chief Justices and judges removed on Nov 3 (save those having reached the age of superannuation) and issue necessary directions to concerned law enforcement agencies enabling the deposed judges to resume their judicial duties.”

About the judges appointed during the emergency and since, the statement 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”.

“Nevertheless, on humanitarian considerations the cases of deserving meritorious appointees could be considered for fresh appointment in accordance with the exercise carried out in Al Jehad Trust case,” the statement said.


Anonymous said…
Asif Ali Zardari (right) and Makhdoom Amin Fahim: The rift may take longer to heal.

After voting in the Pakistan People’s Party and the Pakistan Muslim league (N) in the February 18 elections, Pakistan is gripped with anxiety about the unseemly infighting in the PPP over the post of premiership.

The euphoria of the momentous agreement between the PPP and the PML(N) to form a coalition government has been overshadowed by the open rift between PPP leader Asif Ali Zardari and the party’s vice-chairman, Makhdoom Amin Fahim, leading to specu lation that the party is on the verge of a split.

Mr. Fahim, a stalwart of the party and a Benazir-loyalist believes that if Mr. Zardari is not interested in becoming the prime minister, he should be the next choice for the post. His hopes were pinned on it after Mr. Zardari announced days after Benazir’s death that Mr. Fahim was the most likely choice for prime minister.

Sindh was burning at the time in a backlash of anger against Benazir’s assassination. All agreed that even though he would just play second fiddle to Mr. Zardari, the real power behind the throne, Mr. Fahim’s elevation as prime minister would be soothing balm for the province. A party stalwart and a Benazir loyalist, the Sindhi leader has strong backing within the party and in the province.

It was just before the elections that the sidelining of Mr. Fahim began. Individual PPP leaders began to suggest Mr. Zardari for the post of premiership. The PPP leader added to the speculation by saying that he was not ruling himself out.

But the results of the election were not as favourable to it as the PPP had expected, and the word from Mr. Zardari was that he would much rather devote his time to strengthening a party suffering from a leadership crisis after Benazir’s assassination.

At the same time, he allowed three other candidates from Punjab to emerge as challengers to Mr. Fahim for the premiership. Voices close to Mr. Zardari began saying that the PPP’s poor performance in Punjab necessitated a strong revamping in the province, and choosing a prime minister from the province was the first step. It would also help to keep a balance with the Pakistan Muslim League (N), which emerged as the single largest party in the province, and is to lead the provincial coalition government.

Then followed the search for a “consensus” candidate through a long-drawn process of consultations with parliamentarians, which only seemed to accentuate the differences within. With Mr. Zardari seemingly in no hurry to decide on the Prime Minister, the distance between him and Mr. Fahim was becoming more obvious. The PPP deputy leaders’ absence from the historic meeting at Murree where the PPP and PML(N) turned the page as rival parties and agreed to sit together in government brought it out in the open.

An alarming war of words ensued between Mr. Zardari and the PPP on one side and Mr. Fahim set off rumours that the party was on the verge of a split, and that a Fahim-led “forward bloc” of PPP parliamentarians was in the making.

Needless to say, the PPP in Sindh has been most concerned at the developments. To parliamentarians from the province, Mr. Zardari reportedly said it was only because he intends to take on the prime ministership in three months that he favoured someone from Punjab as a “stopgap” arrangement.

Unsurprisingly, when Mr. Zardari ended the week-long consultations with parliamentarians, it was he who emerged as the consensus candidate. But even now it is not clear if he is positioning himself for the job. From the four contenders, two consider themselves to be still in the race — Mr. Fahim says he remains a candidate, while Ahmed Mukhtar, an industrialist who is close to Mr. Zardari is also confident of his candidacy, besides making it clear that he will step aside when asked to do so.

While the Pakistani media was agog with speculation that Mr. Zardari sidelined Mr. Fahim on account of the latter’s alleged contacts with the presidency and the “establishment”, the PML(N) waded into the controversy with a statement that Mr. Fahim’s candidature for the premiership was rejected on its say-so.

The allegation by a senior PML(N) leader, Khwaja Asif, that the PPP number 2 held a meeting with President Pervez Musharraf the night Benazir was killed sent shock waves through political circles. Mr. Fahim denied the meeting and has slapped a legal notice for defamation on Mr. Asif.

Failed meeting

A dinner meeting on Wednesday between Mr. Zardari and Mr. Fahim was supposed to sort out their differences, but it seems to have made no difference.

The messy beginning to democratic rule has had editorial writers in several newspapers wringing their hands in despair at what Dawn called a “sordid drama”. The newspaper blamed the PPP leadership for allowing its internal differences to fester and surface, and the PML(N) for coming out in the open with its allegation against Mr. Fahim.

“Such displays of divisiveness — be they between political parties or within one group — will give the presidential and religious camps an opportunity to question the abilities of the next government. That could lead to anti-democratic forces paving the way for another phase of authoritarian rule.”

The News described it as “a test for Mr. Zardari since a public spat with his party’s senior-most leader within weeks of taking over is not reflective of good leadership abilities.”

Meanwhile, the word from the PPP is that the leadership may keep the name of the Prime Minister in suspense until the very last day. The newly elected National Assembly members will be sworn in on March 17. The next two days will see the election of the Speaker and the Deputy Speaker. The Prime Minister follows, and according to reports, his swearing-in could take place on March 22. The wild guessing game will come to end then but the rifts in the PPP may take longer to heal.

© Copyright 2000 - 2008 The Hindu
Anonymous said…
Keep it simple and All in the Family Stupid.

Zardari may name sister as interim PM
16 Mar 2008, 0001 hrs IST,ANI
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LAHORE: Amid tussle within the Pakistan People's Party over who should be nominated for the post of prime minister, close aides to party's de facto chairman Asif Ali Zardari have reportedly said that he was thinking of nominating his sister Azra Fazal Pechooho as the interim premier.

Quoting the close aides, a BBC report said that as Zardari is not a member of the National Assembly, he could not become premier himself.

In such a situation, he might nominate his sister as a temporary prime minister, said the Daily Times while quoting the BBC report.

Meanwhile, according to another report published in the News, veteran PPP leader Syed Yousuf Raza Gillani, who has so far put himself away from media glare, might emerge as the dark horse and get Zardari's nod for the top post.

"PPP Co-chairman Asif Ali Zardari has told Gillani that he will be the final choice on the conclusion of his ongoing consultations with the MNAs-elect in groups," the party quoted sources in the PPP and the PML-N as saying. A prominent PML-N leader, privy to the consultations with the PPP, also said that Gillani, a former National Assembly speaker, was going to ultimately win the nomination by Zardari.

Echoing same sentiments, a PPP leader said that Gillani had been asked to stay low in the current hullabaloo so that he did not embroil himself in controversies unnecessarily.

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