Removal of judges and November 3 coup

One matter requiring a clear judicial pronouncement from the Nations' highest court or the country's Parliament is about the juridical status of the 2nd coup against the State of November 3, 2007 or as I argued in the Referendum Challenge case of April 2002 about the 4th or possibly the 5th time that Musharraf played havoc with the constitution's integrity. The removal of judges of superior courts was undertaken twice by the now retired general. The first time was January 25, 2002, when the then Supreme Court (SC) was about to hear the case of Zafar Ali Shah in which the 1999 coup was under challenge. That was done by the Proclamation of a Presidential Order presumably under the advice of Sharifuddin Pirzada who had reportedly used the same technique earlier as well to get rid of several judges under Zia's tenure. That matter was resisted, as now borne out by a TV interview of the then CJ Saeeduz Zaman Siddiqui. Compared to the reaction of the present CJ Chaudhry on March 9, 2007, it has to categorised as a feeble attempt to protest; but then the times have changed In a significant case that came to the apex court's notice was on April 3; CJ Chaudhry heading a 3-member bench in which Justice Mian Shakirullah and Justice Raja Fayyaz were members, asked the government to submit a reply in 3 weeks in which the juridical value of Justice Dogar's activities are bound to attract public attention. CJ Chaudhry is said to have stated in the above proceedings that a superior court judge could be only removed from office by invoking constitutional provisions through a reference sent to the Supreme Judicial Council. In this petition, moved by the Sindh High Court Bar Association, the non-confirmation of two Sindh High Court (SHC) judges, Justice Zafar Ahmed Khan Sherwani and Justice Abdul Rasheed Kalwar, by the government is under challenge. The bench observed that removal of judges under PCO was 'illegal and unconstitutional'. It was the contention of the petitioner that this removal was realised in a patently unconstitutional manner yet their removal was upheld by the SC which validated the November 3 emergency in the Tikka Iqbal Case, which itself was contrary to the rules laid down by a 12-member bench in the Zafar Ali Shah Case. In this case the court had clearly said that there was no power even in manifestly established military government to remove the judges of constitutional courts except by the process laid down in the constitution itself. Justice Sherwani and Justice Kalwar were appointed additional judges of the SHC on September 17, 2007, for 6 months which was later extended. The SHC CJ after evaluating the performance had recommended regularisation of 6 judges, including Justice Sherwani and Justice Kalwar. The secretary of law instead of simply placing the recommendations before then CJ Dogar and the president, told the Sindh governor that the term of two judges had expired on March 3, 2009, instead of August 25, 2010. This was followed by a further communication from CJ to the SHC CJ asking him to stop giving judicial work to the two judges. The petition therefore raises the question of the status whether the former 'CJ' could act as the de jure 'CJ' which is the requirement of the constitution as interpreted by the apex itself in the famous Al-Jihad Trust Case of 1997.The petitioner requested the apex court to declare that both the judges would still be additional judges of the SHC till August 25, 2010, and that their term had not expired. With the entry of the legal and de jure CJ from 22/3/09, the legal question requiring determination is the status of Justice Dogar in the interregnum? In the presence of the constitutional CJ, could he occupy the office under a PCO, which is 'unconstitutional' according to my view, and make recommendations for appointment or removal of any additional judge, and could he disagree with recommendations of the SHC CJ without any cogent reason? In philosophical terms the question requiring a considered response is the matter of the new judiciary that was hired by the de facto federal authorities under the directions of Musharraf after November 3. As such this matter per se requires an objective legal analysis in the context of relevant norms of constitutionalism. With the refusal of over 60 plus judges of the superior judiciary, including the 4 High Courts and the 13 of the SC to accept that patently unconstitutional and illegal action of the then COAS, through which the disbanding of the country's judicial branch took place, the remaining few who accepted the 'new' position were thus also by necessary legal implication starting afresh. It is thus clear beyond any credible jurisprudential doubt that the PCO judges constitute the 'new' judicial structure created by the disastrous decisions of Musharraf. Rather than to hold the then situation as unlawful, it was the contrary course that was adopted by the new judicial branch of the state. Not surprisingly it was opined by the former CJ in Tikka Iqbal Case that the coup was not illegal; the reasoning provided in this judgment (2008 PLD SC 6,178) however seems excessively belabored and aimed realistically speaking to justify the actions of the remaining judges of the court itself. To hold otherwise would have, inter alia, rendered them functus officio as well. However, the legal developments and actions of the judiciary in the post Dogar era have now started to come. When this story would reach its logical climax is conceivably not far. It is in a way the judiciary's own catharsis. For the first time in Pakistan's short history there is no parliamentary cover or indemnity to the naked act of usurpation. The sanctity or what is left of the saving provided by the usurper himself will be in the hands of the judges themselves. The factual aspect of the effect of the judgement given by the court in Tikka Iqbal Case in paragraph numbered as (vi) on pages 10 and 11 of the above cited judgement has been "overturned." In the judgement, the court had said judges who have not taken the oath under the Oath of Office (Judges) Order of 2007 had "ceased to be judges from November 3, 2007." "Their case cannot be re-opened being hit by the doctrine of past and closed transactions;" this overturning occurred when CJ Chaudhry returned to his constitutional office on March 22, 2009 and was accepted by all concerned with enthusiasm and indeed gratitude to the Almighty for ushering in this new phase of re-establishment of rule of law in Pakistan. Why it was so done in Pakistan on November 3 is now an old story; that it created an unparalleled and terrible calamitous situation for the country is equally undeniable. As a result Pakistan is now according to an American think tank placed amongst the 10 most dysfunctional states of the world; the independent American research organisation Foreign Policy and Fund for Peace in Washington in last report on this issue which came in the summer of 2008 when the current "democratic" set-up was entrenched in harness. So from arguably the "failed state status" we have reached the notoriety of a county unable to function properly as an operational state with remarkable ease and speed. This unspeakable fall is entirely due to the illegal actions of Musharraf that this terrible calamity has befallen the nation. To compound the situation, the nation's de facto judicial branch went ahead in speedily settling all issues invariably arising constitutional questions in favour of the appointing authority thereby adversely affecting its own image and that of the country as well; the US think tank, however, noted that the struggle for rule of law was carried on by the lawyers' community of the country. As far as I am aware, none of the country's official lawyers' institutions like the bar associations and councils accepted the new judiciary as constituting or possessing the de jure juridical status that the constitution of 1973 envisaged. The top 10 countries that are rated as worst in such a dysfunctional state of affairs, in order of their inability to work in accordance of any known rules of their constitutional system being: Somalia, Sudan, Zimbabwe, Chad, Iraq, Congo, Afghanistan, Ivory Coast, Pakistan and the Central African Republic. Seven of the world's 10 most dysfunctional countries are in sub-Saharan Africa according to this annual survey. Pakistan like Afghanistan is exhibiting an unsettled march towards chaos and anarchy while the rules of inter se relationship between the major organs and functionaries of the government remain unknown and unmarked as a matter of practical reality. Anyone who has the might is apparently able to get away with whatever is desired notwithstanding any law or constitutional norm to the contrary. But things are bound to remain unsettled for the immediate future. The NRO cases that were admitted to a regular hearing and I was arguing a major matter on behalf of Qazi Hussian Ahmed, it remains to be seen how this matter will ultimately be determined. Then most significantly the decision of the Lahore High Court in matters challenging the right of Nawaz and Shahbaz to contest in the by-elections to the National and Punjab Assembly were ruled against them. How the SC will ultimately rule in May when the matter is taken up in review also is a continuous reminder of the pivotal role that apex court is going to play in days ahead. The ultimate legal test of the present evolution will come when the court is presented to decide the issue of the actions of Musharraf on November 3. My 'petition' for the lawyers' community has been filed in the apex court and time will tell how finally the November 3 coup is adjudicated upon; if it does hold that it was a coup, the consequences will flow of conviction Musharraf after trial on charges emanating from Article 6 of the constitution. The writer is a barrister-at-law (UK), attorney-at-law (US), senior advocate of the Supreme Court of Pakistan, and professor at Harvard University

The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan and professor at Harvard University.

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