By Yousuf Nazar
The government had to take a U-turn and not only had to withdraw the notification of the appointment of the judges but has also yielded to the blackmail. But that does not change basic facts. The position of the Supreme Court and the so-called constitutional experts is wrong and/or politically motivated. The constitutions and practices in the UK and India do not support the view that has been sold to the naive Pakistani public. The Indian President and the Lord Chancellor in the United Kingdom are supposed to consult with the Chief Justice but can reject the recommendation of the chief justice. But even from the standpoint of Pakistan’s law, the position taken by Iftikhar Chaudhry is just political power play and has nothing to do with the principles or 1973 Constitution.We feel that we must put the record straight. So please read the following carefully.
Forget about the fact that Mr. Zardari is , like it or not, the President and is bound by the advice of only the Prime Minister and no one else, although he should consult with the chief justice regarding the appointment of the judges. But consultation’s meaning cannot be stretched to that of binding advice. And we don’t need anyone including Aitzaz Ahsan to interpret that for us.
Some say that the definition of consultation is provided by Article 260 (Chapter 5; Interpretation). That is incorrect. That definition was inserted by the Legal Framework Order of 2002 which was unconstitutional, leaving aside the fact that it violated the letter and spirit of 1973 constitution. The Supreme Court had, in effect, given Musharraf the power to amend the constitution. That was clear violation of Article 6. The LFO was given protection through the seventeenth amendment which was unconstitutional, because it came as a result of an ultra vires Supreme Court decision. Now how can PML (N) support a clause that was sanctified by the infamous and ultra vires seventeenth amendment?
The same is true about Al-Jihad Trust Case [PLD 1996 SC, 324] because an over-zealous, agencies’ inspired, and politically motivated bench changed the meaning of the word ‘consultation’ in the original constitution to mean binding advice. The Supreme Court can interpret Constitution but cannot - repeat cannot - change its basic character in violation of its letter and spirit. If ’binding advice’ had been the intention, there was no need to use the word ‘consultation’. According to the letter and spirit of the constitution, only the advice of the Prime Minister is binding. If there is a conflict between ‘consultation with the chief justice’ and advice of the prime minister, the advice of the prime minister will have to prevail otherwise the whole character of the constitution will be distorted and subverted because Prime Minister, being the elected leader, is the chief executive. Given that the definition of consultation [other than that provided in Al-Jihad case] was inserted in Article 260 through the Legal Framework Order of 2002, it is clear that the Military and the Judges have tampered with the Constitution as and when it suited them. Neither of them have the rights that exceed that of the elected representatives of the people. That is the spirit of the constitution because according to the Objectives Resolution, sovereignty belongs to Allah and is to be exercised by the people through their ‘chosen representatives’ and not by the Army or the Judiciary. The Parliament, and not the Constitution, Army, or the Judiciary should and can exercise sovereignty in view of the unambiguous definition of sovereignty provided in the objectives resolution, which is an integral part of the constitution. The claim that Constitution is sovereign is not only meaningless but is in clear contradiction of the Objectives Resolution.
The ugly reality is that the Army and Judiciary have time and again trampled on the letter and spirit of the constitution with impunity and without any accountability.The only way out of this tragic and troubled legacy is to repeal all the amendments introduced by the dictators or at their instance, as quickly as possible, and implement the the Charter of Democracy without any further delay as only the Parliament’s Act can have real sanctity and not those of judges whose history is tainted with open and secret collaboration with the military dictators. And there is a legal precedent of what consultation means.
For example, the Malaysian Constitution requires the executive when operating under the general authority of the Cabinet, to consult with the Conference of Rulers, before making the appointment of members of the Judiciary, the Auditor-General, members of the Election Commission, Public Services Commission and Education Commission. This very issue was dealt with by the Malaysian Court of Appeal in relation to the elevation of a judge of the High Court of Malaya to the Court of Appeal in the Oral application by Dato’ Seri Anwar [2000}. The meaning of the procedure for judicial appointments contained in Article 122B (1) of the Malaysian Federal Constitution was examined by the Court of Appeal in the following manner:-
The intention of this Article is clear i.e. the Yang di Pertuan Agong must act on the advice of the Prime Minister. However, the Yang di Pertuan Agong is required to consult the Conference of Rulers before making the appointment. To consult means to refer a matter for advice, opinion or views.
The Malaysian Court of Appeal went further to differentiate “consult” from “consent” as it appears in certain provisions of the Federal Constitution:
“To ‘consult’ does not mean to ‘consent’. The Constitution uses the words ‘consent’ and ‘consult’ separately. For example, the word ‘consent’ is used in Article 159(5) of the Constitution which states that the amendments to certain provisions of the Constitution cannot be passed by Parliament without the ‘consent’ of the Conference of Rulers.”
The long history of even a misruled country like Pakistan does not have a precedent where the advice of the chief justice is binding on head of the state in matters relating to the appointment of judges. The order of the Iftikhar Chaudhry was malafide and tantamount to subversion of the federation’s constitution. Iftikhar Chaudhry was Musharraf’s appointee. Musharraf illegally usurped power. All his actions were unconstitutional. Even Supreme Court cannot validate violation of Article 6 because Supreme Court’s jurisdiction is within the boundaries of constitution and it has no power to validate a coup.
Here is a quote from the Supreme Court judgment in Asma Jilani case (1972) in which the Court had held that “assumption of power by General Yahya Khan was an illegal usurpation.”
“[Maybe], that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers.”
Therefore, Iftikhar Chaudhry’s appointment needs to be declared void ab initio by a simple resolution of the National Assembly. If an illegal act can be voided through a resolution of the Assembly, as Aitzaz maintained during the judges movement, then an illegal appointment can also be annulled through a resolution.This man who has always acted in concert with the security agencies must be exposed. A first step would be to publish the list of all those journalists who have been on the take. The axis of establishment, crony judges, and paid media persons must first be exposed to fight against the clandestine operation that is underway to take Pakistan back to 1977.
It is indeed intriguing that no TV channel or newspaper makes it a point to demand the government to publish the names of journalists who have been the beneficiaries of secret funds and/or property allotments. No mention is made of the fact that Iftikhar Chaudhry frequently met with the government officials including the intelligence chiefs before March 2007? On February 19, 2010, the Supreme Court of Pakistan said it will not examine evidence against intelligence agencies in the missing persons’ case. A written order released to the media stated that evidence and allegations of involvement of intelligence agencies in abducting people will be examined by an ‘appropriate forum at the relevant time.’ Now what are we supposed to make of this ruling?
We have short memories. It has been completely forgotten that the so-called deal and NRO were negotiated, among others, by the then ISI chief Pervez Kayani. It was Pervez Kayani who opposed the ’suspension’ of Iftikhar Chaudhry by Musharraf. According to an eyewitness (believed to be Sharifuddin Pirzada) account, it was General Kayani who kept smoking and did not say much during Iftikhar Chaudhry’s meeting with Musharraf on March 9, 2007 when the former was being asked to resign by Musharraf. Iftikhar Chaudhry was appointed Chief Justice of Baluchistan High Court on April 22, 1999 and in less than a year, he was appointed as Justice of the Supreme Court on February 4, 2000. What was behind his swift elevation to the Supreme Court? Exceptional merit? Even a child knows that such rapid promotions and key appointments in Pakistan do not happen without the support and help of the ‘real masters’ in the establishment.
Why is it that a particular section of the media (so fond of PPP- bashing) never highlighted the fact that on September 28, 2007, a Supreme Court bench constituted by Iftikhar Chaudhry, had held the petitions against Musharraf’s eligibility to contest Presidential election to be “not maintainable” under Article 184 (3) of the Constitution. It was Justice Iftikhar Chaudhry who had constituted the bench and did not entertain the pleas from Justice (r) Fakhruddin G. Ibrahim, who had written a letter to the CJ, asking him to form the full court and also invite the Chief Justices of High Courts to sit on the bench. This was the murkiest aspect of the whole saga. Justice Wajihuddin had publicly expressed reservations about the constitution of the bench. Why did Justice Chaudhry not form the full court? Why most of the judges who had restored him earlier in July 2007 were excluded from this bench? Why did it take three weeks for the bench to come with this verdict, which practically facilitated the re-election of Musharraf as President? What was the game? Who was playing the tune? Time in its maturity might reveal the truth but anyone who knows Islamabad and P’indi can understand the reasons behind ‘undue delays’ such as in the above instance, and those behind the ‘indecent haste’ with which the recent order was issued on Sunday evening by Iftikhar Chaudhry’s court.
Pakistan does not need judges who have risen to the top through the crutches of intelligence agencies and by taking oath (in some cases more than once) on PCOs. These judges can’t ensure decent justice in the ordinary course let alone the attainment of the lofty ideals of independent judiciary and the rule of law. The political parties are far from perfect and their leadership full of weaknesses and faults. But only the people and the people alone should decide who should be the President or Prime Minister of Pakistan and not a judge through judgments written in dark hours of evening and based on some twisted interpretation of a distorted version of what was 1973 Constitution. Otherwise, we will be, forever, at the mercy of forces that are accountable to no one and always strike in the darkness of night.
