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PMs remarks fuel tensions, speculation
Tuesday, February 16, 2010
Ex-judges laugh at PMs threat SC can invoke article 58-2(b)
By Usman Manzoor
ISLAMABAD: Prime Minister Yousuf Raza Gilani has opened another can of worms by declaring in the National Assembly that the executive order issued in March last year by the government for the restoration of pre-November 3 judges is yet to be endorsed by parliament, fuelling intense speculation that Mr Zardari might withdraw it as a last desperate measure.
Tensions on all sides snowballed immediately with the PMs speech in the NA as it was considered a part of the new confrontational strategy of the beleaguered government trying to save the presidency, especially after the PML-N attack on Zardaris person, declaring him as a threat to democracy.
Though a government minister, Nazar Muhammad Gondal, tried to bring the temperature down by saying the PMs was an off the cuff remark, Khawaja Mohammed Asif of the PML-N revealed in a Geo TV show the same evening that the government is seriously considering the option of getting rid of the countrys independent judiciary by getting the March 2009 executive order reversed.
Constitutional and legal experts, however, laughed at the latest threat given by no less a person than the Prime Minister of the country as the Supreme Court in its July 31, 2009 order has left no constitutional or legal room that could undo what was done in March 2009 after the successful long march.
The detailed judgment of July 31, 2009 that sent the PCO and Dogar-recommended judges packing clearly states: The actions of General Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and declared to be unconstitutional, illegal, mala fide and void ab initio. In pursuance of the aforesaid declaration, it is further held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, Chief Justices and Judges of High Courts who were declared to have ceased to hold office by the notifications issued by the Ministry of Law and Justice, Government of Pakistan in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notifications issued by the Ministry of Law in this behalf are declared to be null and void.
Khawaja Asif disclosed that the government was planning to withdraw that executive order of restoration of judiciary because it has never accepted the independent judiciary by heart. The government has the mindset of non-acceptance of an independent judiciary and things are moving towards a more serious situation, Khawaja held.
Justice (retd) Wajihuddin Ahmad while talking to The News said that the government had no concern for the welfare of the people of Pakistan and was busy in things which it cannot change. It must be asked from the government that under which law that executive order was issued on March 16, 2009, said Justice Wajih adding: The Supreme Court in its July 31 decision has declared all acts of Musharraf on Nov 3, 2007 as void ab initio and also held that the notification of removing and restoring judges were illegal.
He said that the government was hell bent not to restore the judiciary and it was the pressure of the people of Pakistan upon which the government was left with no option but to restore the judges. He said that the executive order issued on March 16, 2009 is of no worth except a mere piece of paper.
Another respected legal mind of the country, Justice (retd) Fakhruddin G Ibrahim said that those judges who did not take oath under Musharrafs PCO in 2007 remained judges and were never removed from their offices because judges could only be removed under article 209 of the Constitution. If we move according to the Constitution then there would never be any clash, said the retired judge who refused to take oath under Zia-ul Haqs PCO.
Justice (retd) Tariq Mehmood said that the chief justice and other judges who were restored in March 2009 did not take oath and just resumed their functions meaning thereby they were never removed from their offices. He mentioned that July 31, 2009 decision had also settled the matter therefore the legality of that executive order does not exist.
Barrister Farogh Naseem mentioned that after the July 31, 2009 decision, which declared that the executive order illegal, there was no room for its endorsement from the parliament. It has been settled that those judges who had refused taking oath under the PCO were never removed from their offices and talk of executive order at this stage has no legal and moral worth.
The Chief justice is a valid CJ since 2005 and was never removed from his office, therefore, whether this is any executive order or not, does not matter, said Barrister Farogh Naseem.
News Desk adds: Legal experts Monday termed Prime Minister Syed Yousuf Raza Gilanis speech to the Parliament as a warning to the judiciary and the chief justice. The prime minister had said that the superior courts judges were restored through an executive order which was yet to be endorsed by the Parliament.
Speaking in Geo programme Aaj Kamran Khan Kay Saath, top legal experts of the country rejected his warning adding the executive order needed no endorsement from the National Assembly. Those who participated in the programme included Justice (R) Fakhruddin G Ebrahim, Rashid A Rizvi, Professor Rasool Bakhsh Rais, Khwaja Haris and Qamar Zaman Kaira.
They were of the view that the judges whose restoration was ordered had actually never been removed under law, therefore, they neither needed restoration nor its endorsement from the parliament.
Professor Political Department, University of Management Sciences, Lahore, Rasool Bakhsh Rais said that the prime minister had failed to play his role as he had lost impartiality. He warned that his government could be removed adding a clash of institutions will equally harm the political parties and weaken the democratic forces. At the same time it will adversely impact on respect for judiciary and its independent status.
He said neither the prime minister neither had a political vision nor the ability to avert national crisis. President Sindh High Court Bar Association Rashid A Rizvi challenged the prime minister and said he may withdraw the executive order restoring the judiciary. He said the court needed no validation from the Parliament.
He said those taking out rallies in favour of President Asif Ali Zardari were government servants. It was for the first time on Monday that lawyers had boycotted the proceedings of the Supreme Court. Never in history the Supreme Court Bar had resorted to boycott the courts in such an impressive manner before even in the tenure of Ali Ahmad Kurd, Aitzaz Ahsan or Munir A Malik or movement for restoration of judges. It was a unique breakthrough and destined to further strengthen the lawyers movement.
Former advocate general Punjab Khwaja Haris said the SC can invoke Article 58-2(b) after the collapse of the constitutional machinery. Federal Minister for Information and Broadcasting Qamar Zaman Kaira while taking part in the discussion said there was neither any state of confrontation in the country nor the government had any competition with anyone. He said some political forces have taken the issue according to their own perception and a section of lawyers was also going on confrontational path but the situation is not out of control.
Kaira said when Prime Minister Gilani addressed the Parliament; he was not present in the session. He said that he was in Lahore and doesnt know the exact perspective of the executive order.
The minister said he would comment on the issue today (Tuesday) after collecting the relevant information. He insisted that there was correspondence between the offices of the president and the chief justice. He said the president after consulting his advisers decided on the issue but the Supreme Court suspended the notifications. He said at no point the government opposed the decision of the Court. He said the government would surely implement decision of the apex court on the judges appointment issue.
PMs remarks fuel tensions, speculation
Tuesday, February 16, 2010
Ex-judges laugh at PMs threat SC can invoke article 58-2(b)
By Usman Manzoor
ISLAMABAD: Prime Minister Yousuf Raza Gilani has opened another can of worms by declaring in the National Assembly that the executive order issued in March last year by the government for the restoration of pre-November 3 judges is yet to be endorsed by parliament, fuelling intense speculation that Mr Zardari might withdraw it as a last desperate measure.
Tensions on all sides snowballed immediately with the PMs speech in the NA as it was considered a part of the new confrontational strategy of the beleaguered government trying to save the presidency, especially after the PML-N attack on Zardaris person, declaring him as a threat to democracy.
Though a government minister, Nazar Muhammad Gondal, tried to bring the temperature down by saying the PMs was an off the cuff remark, Khawaja Mohammed Asif of the PML-N revealed in a Geo TV show the same evening that the government is seriously considering the option of getting rid of the countrys independent judiciary by getting the March 2009 executive order reversed.
Constitutional and legal experts, however, laughed at the latest threat given by no less a person than the Prime Minister of the country as the Supreme Court in its July 31, 2009 order has left no constitutional or legal room that could undo what was done in March 2009 after the successful long march.
The detailed judgment of July 31, 2009 that sent the PCO and Dogar-recommended judges packing clearly states: The actions of General Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and declared to be unconstitutional, illegal, mala fide and void ab initio. In pursuance of the aforesaid declaration, it is further held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, Chief Justices and Judges of High Courts who were declared to have ceased to hold office by the notifications issued by the Ministry of Law and Justice, Government of Pakistan in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notifications issued by the Ministry of Law in this behalf are declared to be null and void.
Khawaja Asif disclosed that the government was planning to withdraw that executive order of restoration of judiciary because it has never accepted the independent judiciary by heart. The government has the mindset of non-acceptance of an independent judiciary and things are moving towards a more serious situation, Khawaja held.
Justice (retd) Wajihuddin Ahmad while talking to The News said that the government had no concern for the welfare of the people of Pakistan and was busy in things which it cannot change. It must be asked from the government that under which law that executive order was issued on March 16, 2009, said Justice Wajih adding: The Supreme Court in its July 31 decision has declared all acts of Musharraf on Nov 3, 2007 as void ab initio and also held that the notification of removing and restoring judges were illegal.
He said that the government was hell bent not to restore the judiciary and it was the pressure of the people of Pakistan upon which the government was left with no option but to restore the judges. He said that the executive order issued on March 16, 2009 is of no worth except a mere piece of paper.
Another respected legal mind of the country, Justice (retd) Fakhruddin G Ibrahim said that those judges who did not take oath under Musharrafs PCO in 2007 remained judges and were never removed from their offices because judges could only be removed under article 209 of the Constitution. If we move according to the Constitution then there would never be any clash, said the retired judge who refused to take oath under Zia-ul Haqs PCO.
Justice (retd) Tariq Mehmood said that the chief justice and other judges who were restored in March 2009 did not take oath and just resumed their functions meaning thereby they were never removed from their offices. He mentioned that July 31, 2009 decision had also settled the matter therefore the legality of that executive order does not exist.
Barrister Farogh Naseem mentioned that after the July 31, 2009 decision, which declared that the executive order illegal, there was no room for its endorsement from the parliament. It has been settled that those judges who had refused taking oath under the PCO were never removed from their offices and talk of executive order at this stage has no legal and moral worth.
The Chief justice is a valid CJ since 2005 and was never removed from his office, therefore, whether this is any executive order or not, does not matter, said Barrister Farogh Naseem.
News Desk adds: Legal experts Monday termed Prime Minister Syed Yousuf Raza Gilanis speech to the Parliament as a warning to the judiciary and the chief justice. The prime minister had said that the superior courts judges were restored through an executive order which was yet to be endorsed by the Parliament.
Speaking in Geo programme Aaj Kamran Khan Kay Saath, top legal experts of the country rejected his warning adding the executive order needed no endorsement from the National Assembly. Those who participated in the programme included Justice (R) Fakhruddin G Ebrahim, Rashid A Rizvi, Professor Rasool Bakhsh Rais, Khwaja Haris and Qamar Zaman Kaira.
They were of the view that the judges whose restoration was ordered had actually never been removed under law, therefore, they neither needed restoration nor its endorsement from the parliament.
Professor Political Department, University of Management Sciences, Lahore, Rasool Bakhsh Rais said that the prime minister had failed to play his role as he had lost impartiality. He warned that his government could be removed adding a clash of institutions will equally harm the political parties and weaken the democratic forces. At the same time it will adversely impact on respect for judiciary and its independent status.
He said neither the prime minister neither had a political vision nor the ability to avert national crisis. President Sindh High Court Bar Association Rashid A Rizvi challenged the prime minister and said he may withdraw the executive order restoring the judiciary. He said the court needed no validation from the Parliament.
He said those taking out rallies in favour of President Asif Ali Zardari were government servants. It was for the first time on Monday that lawyers had boycotted the proceedings of the Supreme Court. Never in history the Supreme Court Bar had resorted to boycott the courts in such an impressive manner before even in the tenure of Ali Ahmad Kurd, Aitzaz Ahsan or Munir A Malik or movement for restoration of judges. It was a unique breakthrough and destined to further strengthen the lawyers movement.
Former advocate general Punjab Khwaja Haris said the SC can invoke Article 58-2(b) after the collapse of the constitutional machinery. Federal Minister for Information and Broadcasting Qamar Zaman Kaira while taking part in the discussion said there was neither any state of confrontation in the country nor the government had any competition with anyone. He said some political forces have taken the issue according to their own perception and a section of lawyers was also going on confrontational path but the situation is not out of control.
Kaira said when Prime Minister Gilani addressed the Parliament; he was not present in the session. He said that he was in Lahore and doesnt know the exact perspective of the executive order.
The minister said he would comment on the issue today (Tuesday) after collecting the relevant information. He insisted that there was correspondence between the offices of the president and the chief justice. He said the president after consulting his advisers decided on the issue but the Supreme Court suspended the notifications. He said at no point the government opposed the decision of the Court. He said the government would surely implement decision of the apex court on the judges appointment issue.
PMs remarks fuel tensions, speculation
