About the judiciary

Daily: Pakistan Observer
Date: 25.09.08

“They are no more judges” said the then General President Pervaiz Musharraf on
November 3, 2007, and reiterated the same afterwards. The opinion poll seems yet divided
on the issue.

There have emerged two schools of thought: de facto and de jure. The de facto school of
thought declares the Nov-3 acts of Musharraf extra-constitutional because the then
Supreme Court, which was being headed by the then Chief Justice, Iftikhar Mohammad
Chaudhry, was overstepping its constitutional limits by holding the then government
hostage by interfering in its affairs. So it had become imperative to rein the Supreme Court
in.

This school of thought forwards two ancillary arguments. Firstly, quashing of the PCO-II (the
Nov-3 acts of Musharraf) by the then bench of the Supreme Court was an interim order
which was later on (post-Nov-3) invalidated by the newly formed and much larger bench of
the Supreme Court. Secondly, the new bench of the Supreme Court so formed declared the
Nov-3 acts of Musharraf lawful.

There are two interesting points to mention here. Firstly, no doctrine of necessity, by its
name at least, was applied despite the fact that the situation was declared extra-
constitutional. Secondly, to the judges of the incumbent (post-Nov-3) Supreme Court, the
oath was administered as per the oath laid down in the Constitution of Pakistan – contrary
to the past practice of administrating oath under the PCO. The oath-trick has been
employed first time in the history of Pakistan; it is bound to have far-reaching
consequences.

The central point of the de facto doctrine is that in the wake of the Nov-3 acts, Musharraf
became a de facto President and Justice Abdul Hameed Dogar became a de facto Chief
Justice.

The de facto school of thought derives its one prong of strength from the fact that there is
no body to decide whether the Nov-3 acts of Musharraf were lawful or not and related to
that there is no body to make a decision whether the origin of the new (incumbent) bench of
the Supreme Court was lawful or not. So, according to this school of thought, when the new
bench of the Supreme Court declared the Nov-3 acts of Musharraf lawful that should be
considered an established reality – a fait accompli. It means that absence of any such body
to adjudicate on the matter of far-reaching national importance was the strength of
Musharraf and of the new (incumbent) bench of the Supreme Court.

This school of thought derives its second spike of strength from the fact that the de facto
court headed by the Chief Justice Abdul Hameed Dogar has so far decided and disposed of
several cases of public importance which cannot be undone. So if the decisions of these
cases are accepted, the incumbent court should be considered lawful. It means that
justification for presence of the incumbent Supreme Court is not its lawful status but the
function it performed in the wake of Nov-3 when there was no other bench of the Supreme
Court working around to decide the cases of public importance

Both of the aforementioned points of strength converge into the National Reconciliation
Ordinance (NRO). The NRO got endorsed by the incumbent Supreme Court indirectly –
though it is claimed that the NRO issue is subjudice – by validating Musharraf’s all decisions
that he undertook as the de facto President of Pakistan. One of the reasons for
endorsement may be to make it a weak point of the NRO beneficiaries to defend the
existence of the incumbent Supreme Court which they have been earnestly doing now even
at the cost of reneging on their words and violating written agreements publicly.

The de facto school of thought also claims that the judges barred from attending the
Supreme Court on Nov-3 cannot be reinstated – as the Constitution does not offer any
remedy for that situation, so the situation is extra-constitutional – but re-employed. Further,
when they are re-employed, they will have to take oath administered by the incumbent
Chief Justice Abdul Hameed Dogar. This aspect automatically settles the seniority debate:
Justice Abdul Hameed Dogar will stay as the senior most judge, as he has not been re-
employed. If the deposed judges do not want to be re-employed, their restoration requires
another Constitutional Amendment. In short, by implications, in either case, the deposed
Chief Justice, Iftikhar Chaudhry, cannot become the active Chief Justice again.

On the contrary, the de jure school of thought considers the Nov-3 acts of Musharraf
unconstitutional: against the laid down relevant Articles of the Constitution. In this regard,
this school of thought forwards three arguments. Firstly, a government servant cannot
become the president even if he is elected by the Parliament (by simple majority) unless the
Parliament introduces a Constitutional Amendment (by two-third majority) to that effect.
Secondly, Musharraf was not elected in 2002 but was protected under the Seventeenth
Constitutional Amendment (as Musharraf was the de facto president of the country at that
time). Hence, the point of passing of Musharraf from one presidential term to the
subsequent was invalid. Thirdly, had Musharraf doffed his uniform by December 31, 2004,
his presidential candidature could have been established as a civilian (who remained away
from the government service for three years after relinquishing his service) in October 2007
when the matter came before the then bench of the Supreme Court to decide.

This school of thought forwards two subsidiary arguments. Firstly, if the Nov-3 acts of
Musharraf are indemnified or even condoned through the forthcoming Eighteenth
Constitutional Amendment, every government servant will become eligible for contesting the
presidential election. This sort of precedent will keep the door of military adventurism into
the political sphere open. Secondly, if the pre-November-3 supreme judiciary is not
restored, in future, no judge will stand in the way of any military dictator who is to violate the
Constitution.

The de jure school of thought derives its first spine of strength from the fact that no
constitutional method was applied to impeach Musharraf as he had resigned (or left office
of the president) before the impeachment mechanism could come into action. The
resolutions of the provincial assemblies to ask Musharraf to secure a vote of confidence
were not constitutional obligations. Hence, Musharraf was not recognised as the de jure
President of Pakistan: Musharraf stayed at and left the presidency as the de facto
President of Pakistan.

This school of thought derives its second facet of force from the fact that in the eyes of law
(or the Constitution), any unlawful act is ‘void.’ Any act which is void does not need another
law to undo it: an act which is void dies of its own death. Hence, the pre-Nov-3 judges of the
Supreme Court are not deposed but dysfunctional and de jure and can be restored even
without a resolution: reinstatement can be an automatic and spontaneous process. The de
facto decision-delivering process or status does not lend legitimacy to the incumbent bench
of the Supreme Court (here the issue of legitimacy of the Court and legitimacy of the
decisions it delivered are kept separate). Moreover, the dysfunctional judges cannot be
denied reinstatement on the plea of an extra-constitutional situation because the
unconstitutional step of Musharraf on Nov-3 gave birth to the situation being called extra-
constitutional.

As the Constitution of Pakistan cannot become hostage to few to decide what is wrong and
what is right to make the rest to follow blindly and as the ongoing situation has long lasting
bearings on the future of the country, a commission should be constituted comprising
renowned judges of High Courts and Supreme Court of impeccable integrity like Justice
retired Rana Baghwan Das to decide first whether the Nov-3 acts of Musharraf were lawful
or not. The glossing over the ensuing constitutional crisis surrounding whether or not “they
are no more judges” should come afterwards.

Back to columns in 2008