No need for 2/3rds majority: ex-SC judges
By Usman Manzoor & Wajih Ahmed Sheikh
ISLAMABAD/LAHORE: Twenty-one former judges of the Supreme Court including five chief justices have endorsed the March 9, 2008, Bhurban accord and have held that no two-thirds majority of the parliament was required to restore the pre-Nov 3, 2007 judiciary.
According to a joint statement issued in Islamabad by eight former judges including three chief justices of the Supreme Court, the sacked judges could be restored through a parliamentary resolution, showing the will of the representatives of the people of Pakistan.
Another statement issued by the Supreme Court Bar Association, thirteen former judges of the Supreme Court including two chief justices also maintained that two-thirds majority of the parliament was not required to restore the judges.
These judges include former chief justices Justice Ajmal Mian, Justice Saeed-uz-Zaman Siddique and Justice Sajjad Ali Shah and other judges include Justice Fakharuddin G Ibrahim, Justice Deedar Hussain Shah, Justice Haroon Kazi, Justice Nasir Aslam Zahid and Justice Kamal Munawar.
The former judges of the apex court mentioned in their joint statement that 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 so-called introduction of Article 270 AAA and purported amendment to 270-C in the constitution could not be validated by the Supreme Court.
The judges maintained that any act of emergency and changes made in the constitution during the emergency rules needed indemnification of the parliament otherwise those stand effaced.
Accordingly, a two-thirds 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 article 5 and 190 of the Constitution to take immediate measures restoring all chief justices and judges removed on 3 November 2007 and issue necessary directions to concerned law enforcement agencies enabling the deposed judges to resume their judicial duties.
The judges maintained that in the presence of a de jure chief justice and judges no new appointments could be made against their posts. The judges also held that the amendments made by Gen Ziaul Haq in 1985 Gen Pervez Musharraf from 1999 to 2002 were provided indemnity by the parliament.
Meanwhile, according to an SCBA statement, former chief justices Nasim Hasan Shah and Justice Afzal Zullah said the order of the Supreme Court which declared illegal imposition of the November 3 emergency was valid. They said amendments by Gen Ziaul Haq were incorporated under the 8th Amendment through insertion of Article 270-A, and by Gen Pervez Musharraf (in 2002) under 17th Amendment through insertion of Article 270-AA in the Constitution. The Article 270-AAA, under which Pervez Musharraf himself added the steps taken under November 3 emergency rule, has not been adopted by the two-thirds majority in the parliament, hence it was not part of the constitution. "The power to make permanent the amendment in the constitution does not vest in the president or in any court, particularly in a bench appointed through an unconstitutional instrument and acting in defiance of the Supreme Court's order against November 3 emergency," they added.
The judges said the government should, under Article 5 and 190 of the constitution, take immediate executive measures, restoring all judges removed on November 3. They added the appointments of judges during the PCO regime were unconstitutional. Nevertheless, on humanitarian considerations, the cases of deserving meritorious appointees could be considered in accordance with the exercise carried out in Al-Jehad Trust case.
They said the judges' removal, which was admittedly unconstitutional, being in defiance of Article 209 of the Constitution, could not be validated by the unilateral act of an individual through the so-called introduction of Article 270-AAA nor the Supreme Court can validate such an act. No individual can make permanent changes in the supreme law adopted by the parliament which is representative of the people, they added.
They said upon restoration of the constitution, the power to make changes, as well as the effects thereof, stands effaced unless duly indemnified by the parliament. They added the amendments introduced in the constitution by General Ziaul Haq and General Pervez Musharraf in 1985 and 2002, became part of the constitution after the parliament approved them by a two-thirds majority.
The former judges of the Supreme Court include Justice Mohammad Arif, Justice Javaid Iqbal, Justice Fazal Karim, Justice Manzoor Hussain, Justice Zia Mahmood Mirza, Justice Tanvir Ahmad Khan, Justice Rafiq Tarar, Justice AS Salam, Justice Khalilur Rehman Khan, Justice MA Lone and Justice Raja Afrasiab. The judges of the Lahore High Court included Justice Sardar Mohammad Dogar, Justice Abdul Majeed Tiwana, Justice Sajjad Ahmad Sipra, Justice Akhtar Hussain and Justice Sharif Hussain Bokhari.
No need for 2/3rds majority: ex-SC judges