Legal analysis of the Judicial crisis!

Nauman Qaiser

In the wake of the extra-constitutional steps taken by the then Chief of the Army Staff on November 3, 2007, the Chief Justice of Pakistan and about sixty of other Judges of the superior judiciary were deposed unceremoniously. Thereafter the superior Courts were stuffed with handpicked Judges, who wasted no time in ‘validating’ these illegal and unconstitutional measures.

Subsequently, the legal community in particular and the civil society in general rejected the said unconstitutional measures out rightly and started agitating against the same ever since. On February 18, 2008 the people of Pakistan have also resoundingly spoken and given their verdict against the unconstitutional assault upon the independence of judiciary in the country. There is now a virtual consensus and a universal demand in the country that the affected Judges ought to be restored to their offices forthwith. The present article 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.

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:

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?

Firstly, the steps taken on November 3, 2007 were not duly authorized by any law in force in Pakistan on that day including the Constitution and were, therefore, void ab-initio. It is an established law that something which is void is to be ignored as it did not exist at all, and no formal setting aside through any judicial or legislative process is needed for it. As far as the right to proclaim emergency is concerned, as envisaged by part- x of the Constitution, it only vests in the president of Pakistan, and no one else including the Chief of Army Staff possesses this authority. Therefore, the mere fact that the November 3 “emergency” was proclaimed by the then Chief of Army Staff, not the president –though both posts were held by one individual at that time – makes all the post-November 3 ‘legislative’ measures void and unconstitutional.

Secondly, by virtue of clause (2) of Article 4 of the Constitution, which gives every citizen of Pakistan a right to be dealt with in accordance of law, 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 due process provided for by Article 209 of the Constitution and any other method adopted for the purpose is to be treated as unconstitutional, invalid, ineffective and void.

Thirdly, 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 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-existent in the eyes of the law.

Lastly, 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?

Firstly, 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.

Secondly, 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.

Thirdly, 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.

Lastly, 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?

All the Judges 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.

Further, such Judges should be tried for high treason under article 6 of the Constitution, for they have assisted in ‘validating’ the unconstitutional acts of military dictator.

Moreover, 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 also, 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.

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 there under. 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 and after the subsistence of the Proclamation of Emergency and the Provisional Constitution Order of 2007?

The judges of the superior Courts appointed during and after 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. Therefore, 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.

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 Chief Justices and Judges of the Supreme Court and the High Courts who did not take oath under the Provisional Constitution Order of 2007?

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.

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

As already mentioned, the so-called legislative measures and steps taken by the then Chief of the Army Staff on November 3, 2007 were absolutely unconstitutional and void, so formal setting aside through any judicial or legislative is not at all needed. Therefore, 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.

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.

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.

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!