By Anees Jillani
A judge is supposed not to have political enemies. In view of the peculiar circumstances, his restoration may not delight them as well, including but not limited to, General Musharraf.
After the proclamation of emergency, and the imposition of the PCO, 13 out of 18 judges in the Supreme Court; 11 out of 31 in the Lahore High Court; 19 out of 28 in the Sindh High Court; four out of 13 in the Peshawar High Court; and none out of five in the Balochistan High Court, refused to take oath under the Oath of Office (Judges) Order 2007, which they were required to do, as they ceased to hold office under this very order.
Fresh judges were inducted in the Supreme Court; and in the High Courts to fill the void.
The PCO was challenged in the Supreme Court, but it was upheld. This is now an anomalous situation where courts are functioning all over the country, but not being recognised by a sizeable section of the legal community, some of the political parties mainly led by PML-N, and of course the deposed judges.
As if the above confusion was not good enough, a seven-member full bench of the pre-PCO Supreme Court passed an order on Nov 3 which restrained the superior court judges from taking oath under the PCO; and held that ‘any new appointment of judges of superior judiciary would be unlawful and without jurisdiction’.
The post-PCO Supreme Court, while hearing a petition against this order, held it to be invalid as it was passed after the promulgation of the emergency proclamation, the PCO and the Oath of Office (Judges) Order. The latter order remains in force to date, but which Supreme Order will succeed after Iftikhar Chaudhry again becomes the Chief Justice?
If one accepts the pre-PCO Supreme Court order, then all new appointments in the superior judiciary since Nov 2007 are unlawful and without jurisdiction. If this is the case, then what will be the outcome of the decisions taken by these ‘unconstitutional courts’ during the past 17 months; and the fate of the post-PCO Supreme Court order that held this pre-PCO Court order to be invalid, and other major pro-Musharraf court decisions, including the Tikka Iqbal case that upheld the Emergency Proclamation, the PCO and the Judges Oath Order?
Like in a banana republic, the PCO gave President Gen Musharraf the power to amend the Constitution simply through an executive order. Musharraf carried out several amendments, including the Constitution (Amendment) Order 2007 which ironically resulted in fulfilling a long-awaited demand of the legal fraternity in the Capital: establishment of a High Court for the Islamabad Capital Territory.
This court is totally a product of the PCO. If the PCO is considered to be void ab initio (void from the beginning), then the Islamabad High Court is unconstitutional, including all decisions taken by it. This is unlikely to happen as hundreds of decisions have been taken by this Court since its establishment.
To make matters worse, the PPP government, like a bull in a china shop, has hastily been appointing judges in all the High Courts as if it is the last night of Pompeii. (Pompeii, a town in what is now Italy, was destroyed, and completely buried, in AD 79 after a volcanic eruption).
On May 15, 2006, Benazir Bhutto and Nawaz Sharif had signed the much acclaimed Charter of Democracy in London. It was agreed by both the major parties through this charter that the recommendations for appointment of judges to superior judiciary shall be formulated through a commission, which shall comprise of a chief justice, who has never previously taken oath under the PCO (thus precluding Chief Justice Iftikhar Chaudhry); chief justices of the provincial high courts who have not taken oath under the PCO; vice-chairmen of Pakistan and provincial bar association (the reference is probably to councils, although the word ‘association’ has been used in the charter); President of Supreme Court Bar Association; Presidents of the High Court Bar Associations; Federal Law Minister and Attorney General.
Such a commission was to forward a panel of three names for each vacancy to the prime minister, who would forward one name for confirmation to a joint parliamentary committee for confirmation of the nomination through a transparent public hearing process. The latter committee should comprise 50 per cent members from the treasury benches, and the remaining from the opposition parties.
It can be seen from these provisions of the Charter of Democracy that the PPP-led Gilani government has totally deviated from this mechanism, and has arbitrarily been appointing judges to the superior courts. Thus, apart from this departure which is more of a political issue than a legal one, the appointments shall be considered by the pre-PCO Supreme Court as a contravention of its Nov 3 order that had declared in advance that any new appointments of judges of superior judiciary would be unlawful.
A heavy responsibility now lies on Chief Justice Iftikhar Chaudhry’s shoulders. The people of Pakistan, particularly the downtrodden, are expecting him to perform miracles. The political forces have begun nursing hopes that action would now be taken against Pervez Musharraf for abrogating the Constitution and the National Reconciliation Ordinance would be invalidated.
Relatives of the missing persons anticipate his calling the intelligence chiefs to the court to find their loved ones; and the common man wants him to find a job, and eliminate inflation. He is no doubt presently one of the most popular chief justices in the world; and he definitely has proven to have nine lives, deserving a mention in the Guinness Book of World Records for having been reappointed twice in two years.
However, now comes the tricky part as Justice Iftikhar Chaudhry has to find a solution to the imbroglio left by Gen (retd) Musharraf (with no mean contribution from the present PPP-led government itself). We all wish him the best.