Resolving the current judicial crisis: The Way Forward

Resolving the current judicial crisis: The Way Forward
(Author's Name Withheld On Request)

In the wake of some legislative measures introduced and steps taken by the then chief of the Army Staff and the incumbent President of Pakistan on November 3, 2007 the Hon’ble Chief Justice of Pakistan and a dozen Hon’ble Judges of the Supreme court alongwith some Hon’ble Chief Justices and scores of Hon’ble Judges of various High Courts had been restrained from performing their constitutional duties and functions and were purportedly deposed. Thereafter the Supreme Court and the High Courts were packed with handpicked Chief Justices and Judges and the offending legislative measures and steps were upheld and ‘validated’ by the post-November 3, 2007 Supreme Court. The civil society in general and the legal community in particular had rejected the said unconstitutional measures and steps outrightly and they have been agitating against the same eversince. On February 18, 2008 the people of Pakistan have also resoundingly spoken and given their verdict against the unconstitutional assault upon the independent judiciary of the country. There is now a virtual consensus and a universal demand in the country that the affected Chief Justices and Judges ought to be restored to their offices forthwith. The present
document looks at the validity of the relevant legislative measures and steps, legitimacy of the purported upholding and validation of such measures and steps by the post-November 3, 2007 Supreme Court and constitutional status of the current and deposed Chief Justices and Judges besides suggesting ways and means required for restoration of the affected Chief Justices and Judges to their offices.

2. The following questions appear to be of critical importance in the context of the prevalent judicial crisis and clear and categorical answers to the same may lead to a satisfactory end to the constitutional impasse in that regard:

(i) What is the constitutional and legal status of the legislative measures and steps taken by the then Chief of the Army Staff and the incumbent President of Pakistan on November 3, 2007?

(ii) What is the validity of the pronouncements made by the post-November 3, 2007 Supreme Court on the relevant issues?

(iii) What is the status of the serving Judges of the Supreme Court and the serving Chief Justices and Judges of the High Courts who had taken oath under the Provisional Constitution Order of 2007?

(iv) What is the status of the Chief Justices and Judges appointed during the subsistence of the Proclamation of Emergency and the Provisional Constitution Order of 2007?

(v) What is the status of the Judges of the Supreme Court and the Chief Justices and Judges of the High Courts who had been appointed after lifting of the Proclamation of Emergency and the Provisional Constitution Order of 2007?

(vi) What is the status of the Chief Justices and Judges of the Supreme Court and the High Courts who did not take oath under the Provisional Constitution Order of 2007?

(vii) How can the affected Chief Justices and Judges of the Supreme Court and High Courts recommence performance of their duties and functions?

3. Keeping in view the provisions of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called the Constitution) and considered in the light of the established norms of constitutional and legal interpretation and dispensation the above mentioned questions may be answered as follows:

Question No. (i): What is the constitutional and legal status of the legislative measures and steps taken by the then Chief of the Army Staff and the incumbent President of Pakistan on November 3, 2007?

(a) The legislative measures and steps taken by the then Chief of the Army Staff and the incumbent President of Pakistan on November 3, 2007 were not countenanced or authorized by any provision of the Constitution or any other law existing or in force on that day and, thus, the said measures and steps were absolutely unconstitutional. The spirit of clause (1) of Article 8 of the Constitution manifests that a legislative measure introduced in violation of the Constitution is
‘void’ and it is settled law that something which is void is to be ignored as a nullity and the same does not even require its formal setting aside through any judicial or legislative process.

(b) The purported legislative measures taken by the then Chief of the Army Staff and the incumbent President of Pakistan on November 3, 2007 did not even qualify as ‘law’ under the Constitution and, thus, by virtue of clause (2) of Article 4 of the Constitution no serving Chief Justice or Judge could be prevented from or be hindered in performance of his duties and functions or be compelled or required to take a fresh oath of his office on the basis of such self-styled legislative
measures. A Chief Justice or a Judge of the superior judiciary can be removed from his office only through the process provided for by Article 209 of the Constitution and any other method adopted for the purpose is to be treated as unconstitutional, invalid and ineffective.

(c) It is an undeniable fact that soon after issuance of the Proclamation of Emergency, promulgation of the Provisional Constitution Order and introduction of the Oath of Office (Judges) Order on November 3, 2007 a seven member Bench of the serving and constitutionally appointed Judges of the Supreme Court, headed by the Hon’ble Chief Justice of Pakistan, had passed a restraining order against the said
purported legislative measures and, thus, the said measures could not legitimately take any legal effect. Any superstructure subsequently built upon or any step taken on the basis of such illegitimate and unlawful measures was, therefore, non est and non-existent in the eyes of the law.

(d) Every extra-constitutional measure or step necessarily requires validation of the same by the citizens of the country represented through the Parliament. A social contract between the people and the State cannot unilaterally be amended or modified by a ruler without the consent or approval of the people. This is why in the past every amendment of the Constitution by an unrepresentative government had to
be put up before the Parliament at the earliest opportunity for the purpose of its validation by the representatives of the people. The legislative measures introduced and the steps taken on November 3, 2007 as well as the amendments made in the Constitution on the basis of the same have, thus, no legitimacy or validity till they are validated by the Parliament. The argument that the constitutional amendments introduced at the time of lifting of the Proclamation of Emergency and
the Provisional Constitution Order of 2007 require invalidation and not validation by the Parliament is fallacious on the face of it and the same not only reflects lack of prudence but it also demonstrates lack of understanding of jurisprudence on the part of those advancing the argument.

Question No. (ii): What is the validity of the pronouncements made by the post-November 3, 2007 Supreme Court on the relevant issues?

(a) The post-November 3, 2007 Supreme Court pronouncing upon validity of the purported legislative measures of November 3, 2007 was an unconstitutionally constituted body. Upholding of some void legislative measures by an unconstitutionally constituted body compounds the void nature of the whole exercise. Like the void nature of the purported legislative measures the pronouncements upholding and validating them were also void and, thus, liable to be ignored as nullity.

(b) The eight member Bench of the post-November 3, 2007 Supreme Court upholding and ‘validating’ the purported legislative measures of November 3, 2007 was presided over by a ‘Chief Justice’ and was manned by seven other ‘Judges’ who had assumed those offices as a direct consequence of the legislative measures which were under challenge before them. Apart from that all eight of them had already made an oath
to ‘preserve, protect and defend’ the Proclamation of Emergency and the Provisional Constitution Order of 2007 and, thus, on account of their undeniable personal interest and apparent bias they all stood disqualified to hear and decide challenges made against the said purported legislative measures. It goes without saying that
pronouncements by such ‘Judges’ on issues they were inherently disqualified to adjudicate upon hardly commend themselves for acceptance or favourable reception. Subsequent dismissal of some review applications against such pronouncements by even larger Benches of the same ‘Court’ were equally denuded of any legitimacy or validity as all the ‘Judges’ deciding such review applications had been appointed to
the Supreme Court without the mandatory consultation with the validly and constitutionally appointed Chief Justice of Pakistan.

(c) Even if, for the sake of argument, the relevant pronouncements by the post-November 3, 2007 Supreme Court are accepted as valid and lawful still it is established law that the Parliament can declare a judicial pronouncement to be ineffective and inoperative through a simple majority.

(d) Through a judicial pronouncement regarding an extra-constitutional measure or step the judiciary can only acknowledge the de facto nature of the measure or step for the purposes of continuity of the business of the State but it cannot arrogate to itself the power of conferring validity upon the measure or step which power rests only with the Parliament. A court can never claim to be a representative of the people who only have the choice of accepting or rejecting a change in or a deviation from the social contract, i.e. the Constitution.

Question No. (iii): What is the status of the serving Judges of the Supreme Court and the serving Chief Justices and Judges of the High Courts who had taken oath under the Provisional Constitution Order of 2007?

(a) The Judges of the Supreme Court and the Chief Justices and Judges of the High Courts who were already in service on November 3, 2007 and who had taken oath under the Provisional Constitution Order of 2007 had clearly and deliberately violated their original oath under the Constitution whereby they had sworn before Almighty Allah that they would ‘preserve, protect and defend’ the Constitution. By taking oath under the Provisional Constitution Order of 2007 they had demonstrated that instead of preserving and defending the Constitution they were more interested in protecting their own jobs. It is the primary duty of a Judge of the superior judiciary to protect the citizens’ rights but by taking oath under the Provisional Constitution Order of 2007 such Judges had chosen to become partners of those who were out to rob the citizens of their constitutional rights. The cases of such Chief
Justices and Judges are, therefore, fit cases for reference to the Supreme Judicial Council for their removal from office on account of their demonstrated betrayal of the Constitution and deliberate violation of their oath of office.

(b) In their zeal to cling on to their jobs such Judges did not hesitate to stab their own judiciary in the back. They not only ignored their own oath and commitment made before Almighty Allah but they also, trampling the mandate of Article 189 of the Constitution, violated the order passed by a seven member Bench of the legitimate Supreme Court on November 3, 2007 restraining all the Judges of the superior judiciary from taking oath under the Provisional Constitution Order of 2007. Such misconduct on their part again renders them liable to be proceeded against before the Supreme Judicial Council.

(c) It is about time that the judiciary should be cleansed of such Judges who had demonstrated by their conduct that their jobs and the perks and privileges carried by their jobs were closer to their hearts than the Constitution and the people’s rights thereunder. Such Judges are no more than pretenders and are inherently unfit and unsuited for the onerous duties they are required to perform. They are, therefore, to be shown the door unceremoniously so as to set an example for the posterity.

Question No. (iv): What is the status of the Chief Justices and Judges appointed during the subsistence of the Proclamation of Emergency and the Provisional Constitution Order of 2007?

(a) The Chief Justices of the High Courts and the Judges of the Supreme Court and High Courts appointed during the subsistence of the Proclamation of Emergency and the Provisional Constitution Order of 2007 had been appointed without the mandatory consultation with the validly and constitutionally appointed Chief Justice of Pakistan and validly and constitutionally appointed Chief Justices of High Courts in
terms of Articles 177(1) and 193 (1)(c) of the Constitution. In the eyes of the Constitution the Chief Justices consulted for appointment of such Chief Justices and Judges were no more than pretenders. All such appointments were, therefore, void and a nullity and can be ignored, needing no formal setting aside.

(b) Restraining such Chief Justices and Judges from performance of the duties and functions of the relevant offices does not involve any action by the Supreme Judicial Council under Article 209 of the Constitution because Article 209 is attracted to a case of ‘removal’ of a validly appointed Chief Justice and Judge and not to the case of restraining a pretender from performing the duties and functions of the office. All such Chief Justices and Judges can simply be denotified.

Question No. (v): What is the status of the Judges of the Supreme Court and the Chief Justices and Judges of the High Courts who had been appointed after lifting of the Proclamation of Emergency and the Provisional Constitution Order of 2007?

(a) The Judges of the Supreme Court and the Chief Justices and Judges of the High Courts who had been appointed after lifting of the Proclamation of Emergency and the Provisional Constitution Order of 2007 had also been appointed without the mandatory consultation with the validly and constitutionally appointed Chief Justice of Pakistan and validly and constitutionally appointed Chief Justices of High Courts in terms of Articles 177(1) and 193 (1)(c) of the Constitution. Their appointments after consultations with pretenders were equally unconstitutional and void, needing no formal setting aside.

(b) Again, restraining such Chief Justices and Judges from performance of the duties and functions of the relevant offices does not involve any action by the Supreme Judicial Council under Article 209 of the Constitution because Article 209 is attracted to a case of ‘removal’ of a validly appointed Chief Justice and Judge and not to the case of restraining a pretender from performing the duties and functions of the office. All such Chief Justices and Judges can simply be denotified.

Question No. (vi): What is the status of the Chief Justices and Judges of the Supreme Court and the High Courts who did not take oath under the Provisional Constitution Order of 2007?

(a) The purported legislative measures taken by the then Chief of the Army Staff and the incumbent President of Pakistan on November 3, 2007 did not qualify as ‘law’ under the Constitution and, thus, by virtue of clause (2) of Article 4 of the Constitution no serving Chief Justice or Judge could be prevented from or be hindered in performance of his duties and functions or be compelled or required to take a fresh oath of his office on the basis of such self-styled legislative measures.

(b) The affected Chief Justices and Judges could have been removed from their offices only in accordance with the provisions of Article 209 of the Constitution and, thus, in the eyes of the Constitution the Chief Justices and Judges of the Supreme Court and the High Courts who did not take oath under the Provisional Constitution Order of 2007 are still Chief Justices and Judges and restraining them from performing the duties and functions of their offices was and continues to be
unconstitutional, void, nullity and ineffective.

Question No. (vii): How can the affected Chief Justices and Judges of the Supreme Court and High Courts recommence performance of their duties and functions?

(a) The legislative measures and steps taken by the then Chief of the Army Staff and the incumbent President of Pakistan on November 3, 2007 were absolutely unconstitutional and void. It is trite that something which is void is to be ignored as a nullity and the same does not even require its formal setting aside through any judicial or legislative process. Given the political will supported by the popular aspiration, the affected Chief Justices and Judges can be encouraged and supported to recommence performance of their duties and functions without further ado.

(b) The purported legislative measures of November 3, 2007 did not qualify as ‘law’ under the Constitution and, thus, by virtue of clause (2) of Article 4 of the Constitution no serving Chief Justice or Judge could be prevented from or be hindered in performance of his duties and functions on the basis of such self-styled legislative measures.

(c) Treating the purported legislative measures of November 3, 2007 as void does not attract the provisions of Article 264 of the Constitution providing for the ‘Effects of repeal of laws’ and specifying that repeal of a law does not revive the earlier position. It goes without saying that no repealing is involved in the process of identifying and recognizing a nullity. Revival and restoration of the original
positions of the affected Chief Justices and Judges merely require a symbolic recognition and acceptance of their continuance in service and not repealing of the void offending measures of November 3, 2007. If needed, such recognition and acceptance of their continuance in service can be demonstrated simply by withdrawing the Notification through which the affected Chief Justices and Judges had purportedly been denotified.

(d) Even if the purported legislative measures of November 3, 2007 are assumed to be valid still they can, at best, be equated with legislation by the Federal Executive under Article 89 of the Constitution and the spirit of clause (2) of Article 89 of the Constitution makes it evident that the operation and effect of a legislative instrument introduced by the Federal Executive can be terminated or neutralized by the National Assembly through a simple resolution disapproving it.

(e) The affected Chief Justices and Judges had been restrained from performance of their duties and functions through use of brute force sans any constitutionality or legality and subsequent vanishing of the coercive apparatus has automatically removed the earlier restraints and inhibitions. The affected Chief Justices and Judges can, therefore, recommence performance of their duties and functions with some assistance from the Executive which can facilitate them in physical reoccupation of their chambers, courtrooms, court offices and court premises. If push comes to shove then the perpetrators and their abettors can be administered the taste of their own medicine!