Restoration in line with Charter of Democracy
By Samad Khurram • May 14th, 2008 • Category: Politics • 8 CommentsToday Asif Zardari claimed on GEO TV that those who had taken oath under the PCO once could not be restored under the Charter of Democracy. I would like to point out that this statement is blatantly incorrect and comes across as a deliberate attempt to derail the restoration of the judges. The restoration of the deposed judges is directly in line with the Charter of Democracy and it is a legal, moral and political responsibility on the current government to reinstate them as soon as possible.
- Thankfully this time the people of Pakistan are well informed on the Charter of Democracy. According to Article 3 (b) of the said document:
“No judge shall take oath under any Provisional Constitutional Order or any other oath that is contradictory to the exact language of the original oath prescribed in the Constitution of 1973.”
I would like to point out two things in this:
1.1) Please note that that the wording makes it clear that judges were not to take oath under PCO AFTER the signing of the Charter of Democracy in 2006. “Shall” clearly talks only about the future. All those who did take oath on 3rd Nov, including PPP’s favorite Mr. Dogar, have violated the charter of democracy.
1.2) It does not mention the removal of any judges who had taken oath under the Oath of Office (Judges) Order, 2000 (No. 1 of 2000).
1.3) Article 3(a) and all its sub-articles discuss future appointments and not current ones. These are the articles which deal with the constitutional committee on judges and deals with future appointments only. Current judges are not affected by this committee.
- Under the Amendments to Article 270-AA through the 17th Amendment, oaths taken under the Oath of Office (Judges) Order, 2000 (No. 1 of 2000) would be treated as if they had been taken under the Constitution of Pakistan.2.1) The Supremacy of the Constitution binds us to accept an act passed by 2/3rd majority, irrespective of our opinion on it.
2.2) The oath of the judges taken under the Oath of Office (Judges) Order, 2000 (No. 1 of 2000) after passing of the 17th Amendment is not in conflict with the Charter of Democracy. This was well understood by both the PPP and PML-N as they specifically talked about events from the signing of the Charter of Democracy.
2.3) No such indemnity has been given to Musharraf’s actions of Nov 3rd and all PCO judges are unacceptable according to the Charter of Democracy.
2.4) Like the PPP accepts Musharraf having 58-2(b) which was included in the 17th Amendment, the PPP must also accept that the Oath taken in under Oath of Office (Judges) Order, 2000 (No. 1 of 2000) of the 2000 PCO is to be treated as it were taken under the Constitution. It can not selectively choose to accept or reject parts of amendments the way it pleases.
- The inductees after PCO can not be accepted if the Charter of Democracy is followed. PPP is going against the Charter of Democracy by including their retention in its demands.
- To overturn Musharraf’s illegal actions of 3rd Nov, a simple executive order is needed. This is the opinion of 22 former judges of the Supreme Court and 5 former Chief Justices (including many of those who did not take oath under any PCO).4.1) The only reason why a 2/3rd majority would be needed is if Musharraf’s actions of Nov 3rd were considered legal, which he himself has confessed were illegal many a times.
4.2) The argument for needing 2/3rd majority for overturning illegal actions of Musharraf is in conflict with the Charter of Democracy.
4.3) The PPP already has overdone some of Musharraf’s illegal actions through executive orders. For instance the incarceration of the deposed judges was illegal and was overturned with an executive order. In the very same way the deposed judges can be restored through a simple executive order.
- Public sentiment is strongly supportive of this. According to the IRI statistics:
- 73 % of Pakistanis oppose the PCO judges.
- 81 % of Pakistanis want the CJ Iftikhar Chaudhry back to his rightful office.
- 72 % want IMMEDIATE removal of Musharraf.
- 66 % of Pakistanis support lawyers, students and civil society in their protests.
- There are many PPP leaders who are on record for promising to restore the judges if elected to power. There are many more who had promised removal of Musharraf. Even Benazir Bhutto also promised to reinstate Chief Justice and the deposed judges, a statement that has not been retracted and stays on the record. By going eating its own words, the PPP has undermined its credibility in the eyes of the people. IRI polls suggested that the PPP would get more than 50% of the votes but ended up getting only 31% because it did not take a stance on the restoration of the judges.
- PPP was actively involved in the restoration of the Chief Justice after March 9th, 2007. They had organized rallies, protests, hunger strikes and welcome receptions for him. The first major demonstration demanding immediate restoration of the Chief Justice was held in Islamabad on Friday, March 16th and was attended by Makhdoom Amin Fahim, Raza Rabbani, Yousaf Raza Gillani, Raja Pervez Ashraf, Jehangir Badar, Nisar Khoro, Naheed Khan, Sherry Rehman, Safdar Abbasi, Latif Khosa, Fauzia Wahab, Fehmida Mirza, Azra Fazal, Nayyar Bokhari and Enver Baig of the PPP. When it was not in power the PPP actively engaged in public pressure against Musharraf for the reinstatement of one person. After coming in power it has categorically said that it will not reinstate “personalities” which tarnishes its credibility further and desecrates the blood of 40 of its workers who gave their live in Karachi for the restoration of one person, the Chief Justice.If the PPP is ditching the movement after coming to power should we believe that the PPP merely hijacked the movement for its own political gains?
- Civil society all across Pakistan is unanimous in their position. They have been silent to give PPP more time as had requested by Mr. Asif Zardari. However we will return to the streets very soon now.Our position:
- Our struggle is for complete restitution of the Pre-Nov 3rd judiciary with all its powers and members. There will be no compromise on that.
- We believe a simple executive order is enough to overrule the illegal actions of Musharraf.
- For moral backing a parliamentary resolution may be called for to show the will of the people of Pakistan. Once a resolution is passed, the executive will be bound under article 5 and 190 of the Constitution to take immediate measures restoring all chief justices and judges removed on 3 November 2007 and issue necessary directions to concerned law enforcement agencies enabling the deposed judges to resume their judicial duties.
- All the deposed judges are still the real judges of Pakistan. Honorable Chief Justice Iftikhar Muhammad Chaudhry is still the real Chief Justice of Pakistan.
- We do not accept those who were inducted after the PCO (commonly known as PCO judges but it is really a disgrace to call them judges). Accepting the PCO judges will also be against the Charter of Democracy. The PPP must not go against the Charter of Democracy.
- Our stance is in line with the opinion of all of the lawyers and bar councils of Pakistan, 21 former judges of the Supreme Court, 5 former Chief Justices of the Supreme Court and the vast majority of Pakistanis.
- We do not accept Musharraf as a legal ruler of Pakistan and all his actions of 3rd Nov are acts of high treason to be punished by the strictest possible punishment under article 6 of the Constitution.
- We will always work for rule of law and democracy in Pakistan. We believe this can not be done without the restoration of the judiciary.
- Supremacy of the Constitution and the Parliament must always be respected. However we deserve the right to criticize and expose any elected or unelected member for any undemocratic or inappropriate actions.
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References:
Text of Charter of Democracy: http://www.dawn.com/2006/05/16/local23.htm
IRI Polls of November 2007: http://www.iri.org/mena/pakistan/2007-12-13-pakistan.asp
IRI Polls of January 2008: http://www.iri.org/mena/pakistan/2008-02-11-pakistan.asp
People’s Party Workers Preparing for Welcome of CJP: http://www.dawn.com/2007/05/06/nat4.htm
PPP’s MNAs and other key figures at rally demanding reinstatement of a personality: http://www.dawn.com/2007/03/17/top1.htm
PPP demanding to include PCO judges: http://www.dawn.com/2008/05/12/top6.htm
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"Samad Khurram is AB Candidate in Government and Economics at Harvard University. He writes regularly on politics and international affairs in his column "Escaping Quicksand" for the Harvard Crimson. Samad is an active member and confidant of many pro-judiciary forces, groups, publications and also runs the Emergency Times Mailing List."
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Samad it is very appreciating that you have a potential tendency to be a good writer in situations of any such anarchical time ,but there is a problem ,and that is you deviate perhaps willingly from the chapter of reality and facts ,and start dictation in a manner that contradicts ground realities .this is also very appreciating that you pay enough time to study before floating ideas and opinion, but again ,could not curtail your desire from imparting on the issue .
You see Samad this Is not a inquiry based situation, where we got to dig ,the cause ,and culprits .we got to perceive our or any body’s desire in the light of circumstantial available facts ,regardless of whether its is liked or not .people may disagree with you ,or they may criticize you ,but in due time they will realize that that what was floated had a weightage and genuine float.
Please see, asif Ali khan or any dick or Harry can not restore the judges. By virtue of constitutional obligation as per constitution of 1973, in original capacity .this is a prerogative of president.
Article 177
Clause (1)
The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice
Article179.
1 A Judge of the Supreme Court shall hold office until he attains the age of sixty-five years, unless he sooner resigns or is removed from office in accordance with the Constitution.
1 Subs. by Act No III/2003, dated 31-12-2003
• Where as to your inquisition to charter of democracy, it is not a constitutional binding on subject leader to abide by law .its an MOU, that can be violated as moral, political responsibilities are waived when it is a matter of state and its authorities and every issue is perceived as per constitution and its requirement .such charter has no legal statuary and thereof can be broken without hesitation as and when required. Under the portfolio of such legalize terms there is no responsibility that can be tagged on the defaulter as long as he is obeying constitution.
• As to your reservation regarding PCO oath again, the theme of your direction is against the flow of wind. “No judge shall take oath under any Provisional Constitutional Order or any other oath that is contradictory to the exact language of the original oath prescribed in the Constitution of 1973.”
Please see, there is no point to float or exercise your expertise against irrelevant assumptions,election2008,succession2008,selections2008,appointment2008,ministerial oaths2008,and any whatsoever element that is in conductivity is as per present and previous amended constitution, till it is changed by both electoral houses. As such all your reservation to highlight charter of democracy is an unrealistic conclusion that has no credibility or weightage.
• Article270(C)
1Notwithstanding anything contained in the Constitution, all persons appointed as Judges of the Supreme Court, High Courts and Federal Shariat Court who have taken oath under the Oath of Office (Judges) Order, 2000 (1 of 2000), or not having been given or taken oath under that Order have ceased to continue to hold the office of a Judge shall be deemed to have been appointed or ceased to continue to hold such office, as the case may be, under the Constitution and such appointment or cessation of office shall have effect accordingly.
1New Article added ibid
Validation and affirmation of laws
• Article 270B
Clause (2)
All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever.
• Article 270C
1Notwithstanding anything contained in the Constitution, all persons appointed as Judges of the Supreme Court, High Courts and Federal Shari at Court who have taken oath under the Oath of Office (Judges) Order, 2000 (1 of 2000), or not having been given or taken oath under that Order have ceased to continue to hold the office of a Judge shall be deemed to have been appointed or ceased to continue to hold such office, as the case may be, under the Constitution and such appointment or cessation of office shall have effect accordingly.
1New Article added ibid
• Article 271
Clause (3)
All President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
• Article (273)
(a) in respect of President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the appropriate Legislature; and
(b) In respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
Clause (4)
No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
Clause (5)
For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
Clause (6)
Such of the President’s Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws.
Explanation– In this Article “President’s Orders” includes “President and Chief Martial Law Administrator’s Orders” and “Chief Martial Law Administrator’s Orders”]
• Article 268.
Clause (1)
Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.
Clause (2)
The laws specified in the Sixth Schedule shall not be altered, repealed or amended 1[, expressly or impliedly,] without the previous sanction of the President accorded after consultation with the Prime Minister: 2Provided that the laws mentioned at entries 27 to 30 and entry 35 in the sixth Schedule shall stand omitted after six years.
Clause (3)
For the purpose of bringing the provisions of any existing law into accord with the provisions of the Constitution (other than Part II of the Constitution), the President may by Order, within a period of two years from the commencing day, make such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any such Order may be made so as to have effect from such day, not being a day earlier than the commencing day, as may be specified in the Order.
Clause (7)
In this Article, “existing laws” means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial validity, immediately before the commencing day. Explanation – In this Article, “In force”, in relation to any law, means having effect as law whether or not the law has been brought into operation.
1 Subs. by the Legal Framework Order, 2002, (C.E’s. O. No. 24 of 2002) Art.3 and Sch., 2 Subs. and added by Act No III/2003, dated 31/
• Article 270AA.
Clause (l)
The Proclamation of Emergency of the fourteenth day of October, 1999, all President’s Orders, Ordinances, Chief Executive’s Orders, including the Provisional Constitution Order No.1 of 1999, the Oath of Office (Judges) Order, 2000 (No.1 of 2000), Chief Executive’s Order No. 12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive’s Order No. 24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive’s Order No. 29 of 2002), the Legal Framework (Second Amendment) Order, 2002 (Chief Executive’s Order No. 32 of 2002) and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force (both days inclusive), having been duly made are accordingly affirmed, adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever.
Clause (2)
All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person, which were made; taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived from any Proclamation, President’s Orders, Ordinances, Chief Executive’s Orders, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court or forum on any ground whatsoever.
Clause(3)
All Proclamations, President’s Orders, Ordinances, Chief Executive’s Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority.Explanation.–In this clause, “competent authority” means,-(a) in respect of Presidents’ Orders, Ordinances, Chief Executive’s Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
Clause(4)
No suit, prosecution or other legal proceedings, including writ petitions, shall lie in any court or forum against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
Clause (5)
For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, appointments made, including secondments and deputations, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
“.1Subs by Act No III/2003,dt 31/12/2003
• Article270B
Ø Clause (2)
All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever.
• Article271.
Clause (3)
All President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
• Article 273
(a) in respect of President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the appropriate Legislature; and
(b) In respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
Ø Clause(4)
No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
Ø clause(5)
For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
Ø Clause (6)
Such of the President’s Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws. Explanation – In this Article “President’s Orders” includes “President and Chief Martial Law Administrator’s Orders” and “Chief Martial Law Administrator’s Orders”]
Under strict obligatory constitutional position only constitutional move can restore your desire regards
Dr. Tayra bhi keera nikalna paray ga.
You see 22 Supreme court judges nay kaha hai it can be done by simple executive order
tu kon hota hai oppose kernay wala?
LONDON, May 15: The following is the text of the Charter of Democracy signed by former Prime ministers Benazir Bhutto and Nawaz Sharif.
Please see after the death of subject prime minister, the said charter of democracy is null and void, and is not at all an obligatory verse, that is to be followed.
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1. The 1973 Constitution as on 12th October 1999 before the military coup shall be restored with the provisions of joint electorates, minorities, and women reserved seats on closed party list in the Parliament, the lowering of the voting age, and the increase in seats in parliament and the Legal Framework Order, 2000 and the Seventeenth Constitutional Amendment shall be repealed accordingly
The demand for restoration of constitution in charter of democracy was as on and before 12 the October 1999.under such obligatory, if at all, PCO judges are as respectable as is laid down.
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3. (a) The recommendations for appointment of judges to superior judiciary shall be formulated through a commission, which shall comprise of the following:
i. The chairman shall be a chief justice, who has never previously taken oath under the PCO.
ii. The members of the commission shall be the chief justices of the provincial high courts who have not taken oath under the PCO, failing which the senior most judge of that high court who has not taken oath shall be the member.
iii. Vice-Chairmen of Pakistan and Vice-Chairmen of Provincial Bar Association
iv. President of Supreme Court Bar Association
v. Presidents of High Court Bar Associations vi. Federal Minister for Law and Justice
vii. Attorney General of Pakistan
(b) No judge shall take oath under any Provisional Constitutional Order or any other oath that is contradictory to the exact language of the original oath prescribed in the Constitution of 1973.
Appointment of judges was put subject to criteria of PCO oath. Since present and previous judges with all deposed judges as well has taken oath in the contest of PCO therefore, they are not entitled to be selected as per charter of democracy .under such obligation
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Doctor Raza Haider Sahab, you are dealing with organized and systematic denial of truth - is it called propaganda or does it fall under the category of deception(when it’s deception then surely it is deception of another kind - SELFDECEPTION). I am sure that there must be good reasons why the propaganda system works that way, just keep on denying the truth and claim the falsehood. Most likely the liars in politics do know and recognize the fact that the public is not so gullible (as the liars wish) and will not support them. Therefore it is important to mix up false claims, accusations, disinformation in such a fashion that the public is confused. These decptors and falsifiers must be reminded that DENIAL OF TRUTH IS EVIL!
Worst example of SELFDECEPTION !
President Pervez Musharraf is Rank # 39 and one of the “2008 - TOP 100 Influential People” with 12,003 Votes !!!
It puts all Bias Surveys and Gallops in shame! 12,000 people voted for Musharraf!
Mr. Khurram,
I don’t know what survey are you talking about and what is the source of it. But the latest survey up there which gives clear picture of what Pakistanis think about President Musharraf.
There is no other Pakistani even closer to his rank
http://www.time.com/time/specials/2007/article/0,28804,1725112_1723512_1724661,00.html
Go to the above site anti-Musharraf people and accept the ground reality
Musharraf is “staunch counterterrorism” ally. (I think no Pakistani wants, likes it, or would no fight it)
Musharraf has overseen a period of robust economic growth in an extremely troubled area of the world. (I think nobody will dusagre that it is true and it’s in the best interest of our nation)
Musharraf, as promised, has doffed the mantle of army chief. (Is there any denying ?)
Musharraf isn’t tyrannical. (If he was than there would be no opponents left.)