A dormant standoff between the executive and judiciary has came to life again as the Supreme Court took suo motu notice on Wednesday of the government’s failure to implement its May 18 orders directing the government to de-notify five dysfunctional judges of the high courts who took oath under the Provisional Constitution Order (PCO) and were still part of the judiciary.
The court fixed the hearing of the suo motu notice for August 5 (tomorrow) and issued notices to Attorney General Moulvi Anwarul Haq and Law Secretary Masood Chishti.
In its May 18 decision, a six-member larger bench of the Supreme Court had rejected intra-court appeals of six judges against contempt notices issued to them for taking oath under a PCO promulgated by former president Pervez Musharraf, and had ordered the government to de-notify five of them who were still part of the judiciary but were dysfunctional. The government had assured the court that it would implement the decision, but despite the assurance the judges were not yet de-notified. Justice Amir Hani Muslim of the Supreme Court had heard the issue of non-compliance in his chambers on June 26 and later forwarded the matter to Chief Justice Iftikhar Muhammad Chaudhry for further action.
The PCO judges, who had filed the appeals against the contempt charges slapped by a different bench, were Justice Syed Shabbar Raza Rizvi, Justice Hasnat Ahmed Khan, Justice Syed Hamid Ali Shah and Justice Syed Sajjad Hussain Shah of the Lahore High Court (LHC), Justice Yasmeen Abbasey of the Sindh High Court and former LHC chief justice Iftikhar Hussain Chaudhry. Musharraf had issued the PCO on November 3, 2007 as army chief after declaring a state of emergency in the country. He was holding the offices of the president of Pakistan and the army chief simultaneously at that time (under the 17th Amendment introduced by him and approved by parliament). The May 18 verdict authored by the chief justice had said that an army chief appointed by the president in consultation with the prime minister of the day had no authority to hold the constitution in abeyance. The court had held that the dysfunctional judges had ceased to hold their offices after the passage of the 18th and 19th Amendments.
The PCO 2007 read with the Oath of (Judges) Order 2007 had already been declared unconstitutional by the Supreme Court through a July 31, 2009 order in a Sindh High Court Bar Association petition. “Thus no immunity is available to them,” it had said. However, the verdict had said, the appellants would be entitled to service and pension benefits up to April 20, 2010 (when the 18th Amendment was passed). But at the same time the judgement had made it clear that if the judges were found to be guilty of contempt of court, the sum of the benefits would be recovered from them.
The court had rejected a plea to condone the actions of taking oath under the PCO by the appellants and explained that pardoning would mean reverting to the doctrine of necessity, already buried by the July 31 judgement. “If such concession is extended to them, other beneficiaries, responsible directly or indirectly for violation of the constitution, will also be benefited. Therefore, the plea is declined,” the order said.
The verdict had made it clear that courts had no jurisdiction or authority to legitimise or validate any action based on extra-constitutional steps because no such expediency was permissible under the constitutional dispensation nor should it be applied in future. However, it had said, parliament enjoyed jurisdiction to legitimise any deviation and under Article 6 of Article 239 of the constitution, there was no limitation whatsoever on parliament to amend provisions of the constitution. “A constitutional document is not an ordinary legislative instrument, rather a supreme law of the land, being an accord among the people. It is an instrument for running the affairs of the country. It governs the rights and obligations of the citizens. Even a child born today is a subject of the constitution. “Thus, the appellants by accepting the PCO oath violated their oath under the constitution and, therefore, cannot take advantage of omissions and commissions done by them in accordance with the well-known principle enshrined in the maxim: ‘nullus commodum capere potest de injuria sua propria’ which means ‘no man can take advantage of his own wrong’. “It is a matter of record that past constitutional deviations were always condoned, legitimised and validated through legislative interventions by the parliament, including the actions of judges by making oath instead of proceeding against dictators for deviation for abrogating or subverting or holding in abeyance the Constitution. “Only those judges were allowed to continue in the office who had agreed to make PCO oath and later constituted a bench to declare General Pervez Musharraf to be the President of Pakistan. After having obtained this verdict Gen Musharraf made oath in uniform and continued to be the president for a further period of five years, till he resigned from said office,” the judgement had said.
In Pakistan, Judiciary carries a stigma of overplaying its hands by legitimizing dictators using the doctrine of necessity or the military establishment abrogating the constitution. It is just a holy cow. If critically analyzed Judiciary is responsible for all the wrongdoings with this land because it never abide by constitution and swayed its tail before dictators, introducing baseless concepts to validate and prolong the rule of autocrats. In recent verbal brawl Judiciary once again overstepped from its constitutional wires and it is hilarious to see that Some prominent ex-servicemen and political theorists are proposing that since the orders of the Supreme Court have not been executed, it should resort to Article 190 of the constitution to seek help from the army. Article 190 does not specifically mention the army to provide aid, which implies that it is the last resort when all other options fail. As a civilian institution, the court should first invoke its ability to control the law enforcement agencies to execute its orders. Once these departments fail to comply with the court orders then second recourse is the issuance of contempt of court order against those who are creating hurdles. If the military route is adopted, it confirms the view that the military deliberately keeps civilian forces weak to keep the door of intervention open for itself. We have to learn lessons from the last four military interventions and its devastating effects on the nation.
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