All PCO 2000 judges do not want to come back
By Muhammad Ahmad Noorani
ISLAMABAD: All the six honourable judges of the Supreme Court who had refused to take oath under General Musharraf's first PCO in 2000, do not want to return to the bench and have, thus, closed one chapter of this ongoing legal controversy.
While all of them are unanimous in their demand for the reinstatement of the pre-Nov 3 judiciary, they themselves are not interested in their return. The six judges, in exclusive discussions with The News, agreed that even if they wanted to come back, they could not be restored because not only they had reached the age of superannuation but also their removal by Musharraf had been given constitutional cover in the 17th Amendment.
These judges, who set an example by refusing to bow before a dictator, include the then chief justice of Pakistan Justice Saeeduzzaman Siddiqui, Justice Wajihuddin Ahmad, Justice Nasir Aslam Zahid, Justice Mamoon Qazi, Justice Khalilur Rehman Khan and Justice Kamal Mansoor Alam.
All of them were unanimous in their verdict on the complete restoration of judiciary as it was on Nov 2, 2007, complete restoration of the Constitution of Pakistan as it was on July 5, 1977 and complete end of dictatorship with continuation of democracy in accordance with the 1973 Constitution.
On the question of modalities of how judges would be restored to Nov 2 position, they said there was no need for a two-thirds majority for the restoration of the pre-Nov 3 judiciary and complete reversal of all unconstitutional steps taken on and after Nov 3.
Two judges, Justice (retd) Mamoon Qazi and Justice (retd) Khalilur Rehman Khan did not record their comments on the modalities for the restoration of the pre-Nov 3 judiciary but both strongly demanded immediate restoration of all the sacked judges.
"A constitutional amendment by a two-thirds majority was needed for the return of judges removed in 2000 as parliament through the 17th Amendment had given validity to all the unconstitutional steps of Pervez Musharraf," the judges said.
Justice Wajih, however, was of the view that no two-thirds majority was needed in the past to restore the judges sacked in 2000. He argued that even parliament could not legislate in contradiction with the spirit and basic structure of the Constitution.
The 17th Amendment was meant to validate unconstitutional steps of a single-person, which was totally in contradiction to the basic structure of the Constitution as no legislation could be done even by two-thirds majority against the spirit of the Constitution, Wajih said.
"While giving my constitutional interpretation, I want to make it clear that even if I would be offered or would have been offered in the past to become the judge of the Supreme Court and given a golden-seat there, I would and will straightforwardly refuse," he added.
All the six honourable judges were also unanimous in their verdict that Gen Pervez Musharraf, if he fails to validate his unconstitutional steps he took on and after Nov 3 through parliament, would come under the purview of Article 6 of the 1973 Constitution and should be prosecuted under it.
"In the present case, the accused (ex General Pervez Musharraf) has himself admitted the unconstitutionality of his steps he took by imposing Emergency-Plus and promulgating the Provisional Constitution Order (PCO) on Nov 3 last," the judges said.
Justice (retd) Nasir Aslam Zahid, while giving his verdict that Musharraf should be prosecuted under Article 6 if he failed to get indemnity for his Nov 3 moves, however, added some more points.
He said according to the 1973 Constitution, for implementing articles like Article 6, it was elaborated that the federal government will appoint and authorise an official for reporting and registering complaint with the competent authority to take action against intolerable actions.
"There are tolerable and intolerable acts defined in the constitutional interpretations, tolerable to be managed by police and law enforcement agencies while for the intolerable acts like that fall under Article 6, of abrogating, breaching or subverting the Constitution, are to be reported by an authorised official appointed by the federal government," Justice (retd) Nasir disclosed.
"Unfortunately, none of the democratic governments after 1973 felt the need to appoint and authorise any official to report to the competent authority," Justice Nasir said. It should be the foremost priority of the upcoming government to appoint an authorised top official to report all the intolerable acts and then proceed under Article 6.
Justice (retd) Saeeduzzaman Siddiqui, while talking to The News from Karachi, said there was no question of his or any of his companion judges of coming back. "These things are raised just to create confusion and weaken the ongoing lawyersí movement for the restoration of judiciary and the Constitution.î He said two-thirds majority was not needed to restore the pre-Nov 3 judiciary as it would be tantamount to accepting the unconstitutional steps of Nov 3 as constitutional and would set a precedent for future.
Justice (retd) Mamoon Qazi, while talking to The News from Karachi, said the question of the return of judges sacked by Musharraf in 2000 was totally irrelevant now. He said that all the judges should be restored to the Nov 2 position but he didn't comment on the modalities of their return.
Justice (retd) Khalilur Rehman Khan, while talking to this scribe from Lahore, said he was enjoying his retired life and there was no question of return of any judge sacked in 2000 now and those politicians talking such things had their own vested interests.
He said the pre-Nov 3 judiciary should be restored immediately; however, he also did not comment on the modalities of their return. He said that if the unconstitutional moves of Nov 3 were not indemnified, there will be no option other than implementing the Article 6 for the first time in the country's history to block the path of unconstitutional moves forever.
Justice (retd) Kamal Mansoor Alam, while talking to The News from Karachi, said that he had no desire to accept the offer from any circle to become a judge of the Supreme Court again. He said a two-thirds majority was only needed for restoration of sacked judges in 2000 as it was given constitutional cover by parliament.
"The unconstitutional order of the chief of Army staff could be and should be reversed by an executive order of some government official or by a resolution of a house of parliament as decided by the new coalition in Murree on Sunday," Justice Kamal said. He said that Musharraf would be prosecuted if he failed to indemnify his unconstitutional moves from parliament.
All PCO 2000 judges do not want to come back
