When crows perch where eagles dare

Heads I win, tails you lose

Let’s recap. In Part I of this article I wrote about one of the most unfortunate incidents of blatant transgression of authority by 14 judges of our apex court through the highhanded exercise of judicial power completely unknown in the history of judicial pronouncements. This flagrant violation of law stems from the so-called historic judgment of July 31, 2009 in consequence of which 14 judges of the Supreme Court removed 15 judges of the Supreme Court, besides ousting around 100 judges of five different High Courts. The other two glaring outcomes of this highly controversial judgment include the manner in which former President General Pervez Musharraf’s treason trial was initiated and is being conducted and the circumstances leading to the filing of Justice Yasmin Abbasey’s review petition to the Supreme Court challenging her removal as a high court judge. This removal, along with that of over 100 superior court judges, was the result of the highly debatable Supreme Court judgment of July 31, 2009 by a bench comprising ‘restored’ chief justice Iftikhar Chaudhry and 13 other judges hand-picked by him out of a total of 29 judges comprising the then Supreme Court. Iftikhar Chaudhry misused his prerogative to constitute a lopsided bench because it comprised those PCO judges who took oath under Musharraf’s earlier Provisional Constitution Order or PCO of 2000 excluding those who had taken oath under the subsequent PCO of 2007. In so doing, the former category of judges eventually ousted the latter category of judges and violated their Code of Conduct by becoming judges in their own cause.

Thus on that fateful day of July 31, 2009, a minority of 14 questionably restored judges who had taken oath under Musharraf’s first PCO of 2000 at once removed over 100 superior court judges who had not – repeat not – taken oath under the PCO of 2007. Not only were these judges falsely ‘punished’ (one has to say “in a fit of vengefulness”) but to demean and defame them further they were falsely dubbed by certain interested quarters as ‘PCO judges’, forgetting that Iftikhar Chaudhry, who constituted this 14-member bench, had himself taken oath under Musharraf’s first PCO as a judge of the Balochistan High Court. I asked last week, “What’s the difference?” The answer: “The difference is that in the first instance he stood to save his job by upholding the PCO while in the second instance he managed to save his job by deciding to the contrary i.e., by not upholding the PCO thereby applying double standards for the sake of safeguarding his own interest. In the first instance he held in Zafar Ali Shah’s case that a judge who is not given a PCO oath ceases to be a judge. In the second he adjudged that a judge not given oath under PCO of 2007 remains a judge! He changed the rules of the game. In his verdict of July 31, 2009 after his ‘restoration’ in March 2009, the dictum became: heads I win, tails you lose. Was this rule of law or was he making a fool of the law? In rendering both judgments he saved his job but applied double standards to the judges similarly placed thereby sacrificing the constitutional principle of equality by becoming a judge in his own cause.”

Justice Abbasey challenged the order essentially on grounds that the registrar had no power to decide whether a review petition is ‘entertainable’ or not and the Registry has no mandate in law to hold that the review petition was not ‘entertainable’.

To regain its lost respect it is incumbent upon the judiciary to rectify its past legal errors. It must place all the cases against General Musharraf on proper judicial track, within the parameters of justice and due process, particularly his treason trial and his appeal to be taken off the exit control list that the Sindh High Court allowed but the Supreme Court hasn’t yet. He cannot be singled out, tried by a court whose impartiality is questionable and his fundamental right to travel within and outside Pakistan restored.

Then there is Justice Yasmin Abbasey’s review petition to the Supreme Court. In her appeal against the return of her review petition by the Registrar of the Supreme Court, Justice Abbasey has maintained that in her capacity as appellant she was under a legal obligation to provide the apex court with an opportunity to rectify some of the grossest errors of law and fact ever committed in Pakistan’s judicial history, more so when the appellant had compelling reasons to submit that law, justice and the constitution were brazenly violated all along. She has also maintained that her concern regarding such violations became even greater when the Supreme Court Registry passed the impugned order on March 20, 2014 after having hurriedly held that her review petition was not ‘entertainable’.

Justice Abbasey challenged the order essentially on grounds that the registrar had no power to decide whether a review petition is ‘entertainable’ or not and the Registry has no mandate in law to hold that the review petition was not ‘entertainable’. This is the function of the court under Article 188 of the constitution. Only the relevant bench hearing the petition can determine whether review is ‘entertainable’ through reasons recorded in writing. According to Justice Abbasey, it is manifest from the impugned order that the Institution Officer has not even cared to go through the relevant rule according to which even the Registrar of the Supreme Court cannot assume upon himself the judicial function of adjudicating whether a review is ‘entertainable’. She says that it is also fundamental to due process that persons who are not party to litigation should not be affected by a decision.

Basic principles of natural justice require that all parties affected by a decision should be before the court. While rendering the judgment of July 31, the judges chose to ignore this well entrenched universally recognised fundamental principle. The connected orders passed subsequently have also brushed aside these principles of natural justice. As such, the orders under challenge are invalid and non-existent since such orders emanate from a void judgment. It goes without saying that a void judgment, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatsoever, and incapable of enforcement in any manner or to any degree. Equally well settled is the principle that an order or judgment procured through fraud can be attacked at any time, in any court, either directly or collaterally by any person affected by it.

I asked last Sunday: “What do you expect when crows occupy the lofty heights where eagles dare?” It is now for our judges to become eagles. Today they are under the public microscope.

In this background the judgment of July 31, 2009 ought to be revisited, especially considering it contains more glaring illegalities than any other previous judgment in our judicial history. The order of July 31, 2009, apart from being void ab-initio, was based on double or multiple standards and was a violation of principles of natural justice, good conscience and fair play. The reasons for this are many. The judges on the bench treated their similarly placed ‘brother’ judges differently and the judges in minority decided the fate of judges in majority. Discriminatory treatment was meted out to a majority of judges at the hands of a minority of 14 judges as a result of which almost the entire superior judiciary was wiped out. Those who survived this onslaught had to face unprecedented contempt proceedings hitherto unknown in judicial history. The judges who had to face contempt proceedings were made dysfunctional in violation of the constitution. There is no constitutional provision under which a sitting judge can be hampered from performing his judicial functions excepting the procedure provided under article 209 of the constitution for removal of a judge on grounds of misconduct. None of the judges were ever proceeded against for misconduct under article 209.

Over 100 judges appointed by a constitutionally and democratically elected president of Pakistan were removed by a small minority of 14 judges appointed under a Provisional Constitution Order issued by the president and army chief, the prime minister and the generals named in the Proclamation of Emergency Order 2007. No legal action or proceedings of contempt were initiated against these persons but judges who had no role to play in the initiation of any action that is now being touted as ‘extra constitutional’ were targeted so as to have a one-man compliant judiciary in Pakistan. This action in itself is a clear negation of due process besides being a violation of fundamental rights envisaged in the constitution. In a nutshell, the judgment of July 31, 2009 had all the attributes of a void order, which was not only unconstitutional but also unethical.

The appeal of Justice Abbasey also points out that the impugned order makes no mention of the relevant portions that can be termed scandalous. In the absence of such mention the order is devoid of the grounds or legal foundations on which it could be passed in law.

I asked last Sunday: “What do you expect when crows occupy the lofty heights where eagles dare?” It is now for our judges to become eagles. Today they are under the public microscope. Their future actions will determine whether they can regain their respect and credibility so cruelly lost under Iftikhar Chaudhry. If the apex court is unable to uphold the fundamental principles on which justice is universally based, then Pakistan will have to go through greater turbulence before it finds any degree of equilibrium. As far as the Court of Common Sense is concerned, Iftikhar Chaudhry and his fellow ‘restored’ judges have proved by their actions that President Musharraf was right in sending them packing. They had become a menace to the judiciary and to Pakistan’s stability. Were those who fought to restore them really upholding the independence of the judiciary or using the sacking of Iftikhar Chaudhry to ‘get’ Musharraf? Is that why they conveniently overlooked the known flaws of Iftikhar Chaudhry the man whom they made a symbol of the principle? Independence of the judiciary is an immutable, indivisible principle without which there can be no civilisation, but when judges themselves start misusing the principle to transgress their bounds, the principle gets vitiated more than any ruler could ever vitiate it. Iftikhar Chaudhry was a badly flawed symbol of the principle of judicial independence and ended up doing more damage to the principle than any ruler even could.

Note: This is part two of a two-part article. The first part  “When crows perch where eagles dare” appeared in this space last week.