Historic Judgement … More Such Required
Historic Judgment
I must say that I was not expecting a quick judgment , I expected Sharif Ud Din (Pir)Zada or Malik Qayyum or even that so-called lawyer (or Liar please correct my spellings) Dr. Faroogh Naseem or the famous and one and only Barrister (or Padestal) Mohammed Ali Saif to appear in front of the real court and put up their case with some conviction or at least be professional enough to take the position publicily. But as they say the corrupt has no honor.
Let me come to the judgment , earlier I asked Can they (honourable judges) clean the constitutional mess created over the last sixty years? I am not sure I know the answer yet , but this judgment is no doubt the first small step in the right direction. Before I talk about the judgment in detail , let me first summarize the salient features of the judgment.
Salient Features/Operative Parts
1. Any amendments in the constitution (including article 2007, Islamabad High Court etc) made under the garb of PCO have been declared
unconstitutional, unauthorized and without any legal basis , hence without any legal consequences.
2. Following orders have been declared unconstitutional, ultra-vires of the constitution and consequently without any legal effect.
a) The proclamation of emergency order of 2007
b) The Provisional Constitution Order No. 1 of 2007
c) The Oath of Office (Judges) Order of 2007
d) The provisional Constitution Order (Amedendment) 2007
e) The Constitution Amendment Order 2007
f) The Constitution Amendment Order (Second) 2007
g) The Islamabad High Court (Establishment) Order 2007
h) The High Court Judges (Pensionary Benefits) Order 2007
i) The Supreme Court Judges (Pensionary Benefits) Order 2007
3. All those judges who were appointed on the advice/consultation of the CJ of Dogara Court are no more judges , those who come from high court or district courts have been sent back and others stand DISMISSED.
4. Those judges who took oath under the PCO have been referred to Supreme Judicial Council and their fate will be decided there.
5. In terms of the age old principle of “Salus populi est suprema lex” i.e. “The safety of the people is the supreme law.” , any declaration made in this judgement shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. the President , the Prime Minister , the Parliament , the Provincial Governments , anything done by these institutions in the discharge of their functions.
Detailed Analysis
In the beginning let me say that after a long time I have read a good judgment coming out from supreme court. And perhaps I was not expecting such well written judgment from CJ IMC (I have read some of his previous judgements and have never been a great fan of his writing) , but this one stands out. As they clear thinking yeilds better grammer and content. This judgement is precise , blunt and straightforward. I know that this is a short judgment and detailed judgment will be coming later.
On the other hand the judgment falls short of cleansing the whole mess , instead in the first phase it has only cleared the mess on the judges own houses. Well this is indeed a good start. But let me warn that a similar mess was cleaned earlier in old “Judges Case” (i.e Malik Asad Case) however later the same judgment was used against the very author of the judgment (Justice Sajjad Ali Shah).
……. Continued…..
This judgment has all the attributes of a partial, one-sided and unfair verdict. Judges who have never ever taken oath under the PCO have been ousted by the PCO Chief Justice and his 13 cronies. The nation is celebrating and all the PCO judges are still continuing as judges. In short the fight between post November 3 PCO judges and post October 12 PCO judges has resulted in ouster of judges who took oath only under the Constitution of Pakistan and never ever under the PCO. The media, PML[N], the lawyers and other political forces are mixed up and are rejoicing the ouster of constitutionally appointed judges and PPP seems ignorant of this fact. Such things can only happen in Pakistan. After General Musharraf dislodged Nawaz’s government on 12th October 1999, Iftikhar Chaudhry in order to save his job took oath under the PCO. However when he lost his job on 3rd of November 2007 he condemned the PCO. Lets stop having double standards. All PCO judges should be removed regardless of the fact whether they took oath under the PCO before 2nd of November 2007 or thereafter. The irony is that PCO judges have removed those judges who took oath only under the constitution and never under any PCO. I fully agree with the comment that author of this judgment must meet the same fate which former Chief Justice Sajjad Ali Shah had met. After all Iftikhar Chaudhry and his cronies are either PCO judges or were appointed by General Musharaf who repeatedly violated the constitution. If the mess is to be cleaned up then all PCO judges must be packed up.
Aurangzeb Akbar
August 8, 2009 at 7:02 pm