Human Rights Commission South Asia

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Restoring the pre-no 3 judiciary.

By Kazim Hasan

The president and his advisors persist in propagating the fiction that the constitutional amendments made by him have become effective and do not require validation. They seem to be under the impression that if they say this long enough and loudly enough, everyone will believe them. The correct position is that all amendments made since November 3, 2007 have ceased to have legal effect. Unless the purported amendments contemplated by Article 270-AAA passed by a two-thirds majority of the legislature, they shall have no legal effect whatsoever. A permanent change in the constitution cannot be countenanced at the behest of the president or of the Supreme Court. Any attempt by any "court" to negate this, would be violative of the basic law. Even otherwise, the new Assembly must be reminded that each member of the armed forces is required, vide Article 244 of the constitution, to take oath as follows:

"I, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law."

The proclamation of the emergency and the promulgation of the PCO apart from being void ab initio, must be categorized as political acts. The then chief of Army Staff could not, in his capacity as army chief, have imposed the emergency as he could not engage in political activities, nor could he act in violation of the constitution which he had sworn to uphold. An attempt is also being made by the presidency as well as by a few politicians to trivialize the courageous stand taken on and after November 3, 2007 by the judges of the Superior Courts. It is repeatedly said that this is a storm in a tea-cup as some of the judges took oath under the previous Provisional Constitutional Order. The presidency and these politicians have lost sight of the fact that on November 3, 2007, the Supreme Court of Pakistan passed an Order which, in material part, directed as follows:

"1) Government of Pakistan i.e. president and prime minister of Pakistan are restrained from undertaking any such action, which is contrary to independence of judiciary.

2) No judge of the Supreme Court or the High Courts including chief justice(s) shall take oath under PCO or any other extra constitutional step.

3) Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the civil and military authorities are hereby restrained from acting on PCO which has been issued or from administering fresh oath to chief justice of Pakistan or judges of Supreme Court and chief justice or judges of the provincial high courts. They are also restrained to undertake any such action, which is contrary to independence of judiciary. Any further appointment of the chief justice of Pakistan and judges of the Supreme Court and chief justices of high courts or judges of provinces under new development shall be unlawful and without jurisdiction.

Put up before full court on 5th November 2007."

In the light of the above Order, all actions in violation thereof are illegal, unconstitutional and void. The judges who did not take oath were upholding the directions of the Supreme Court, which was not the case with earlier PCOs.

That the presidency is supporting this proposition is hardly surprising. However, the politicians who parrot this line must keep in mind that a strong and independent judiciary is the main bulwark against assaults by non-democratic forces and will be their most powerful protection in the future. The pre November 3, 2007 position must be restored and restored immediately.