This article is part of the series of articles aimed to review the constitutional package proposed by the PPP government. Please allow me to jump directly to the most debated part of the bill that relates to the “restoration of judges” through the “constitutional instrument” as apposed to “executive order” relying upon a “parliamentary resolution”.
In the print media and TV talk shows , though there is a hot debate on this issue, yet the most relevant clauses (270AAA and 270CC) in the bill have not been made public by most of the analysts, I am not sure if this is intentional on their part to keep the people guessing. Fortunately in today’s the News I found the exact wording of the article 270CC , which deals with the restoration of judges. Here I reproduce the text of this article as reported by Babar Sattar in daily The News.
270CC :Notwithstanding anything contained in any provision of the constitution, the Oath of Judges Order 2007, the High Court Judges Order 2007, the Supreme Court Judges Order 2007 and any other law for the time being in force or judgment of any court including a high court and the Supreme Court, the judges of Supreme Court and high courts including the chief justice of Supreme Court and chief justices of high courts who had ceased to continue to hold office in pursuance of the Oath of Judges Order, 2007, dated the 3rd day of November, 2007, shall stand reinstated/restored to the position and seniority they were holding on the 2nd day of November, 2007.
Before going any further with the explaination of this article , let me first clarify some confusion regarding the versions of “Constitution of Pakistan” available today and clarify certain points with regards to the proposed constitutional package.
Versions of Constitution of Pakistan:
On the morning of 3rd November 2007 , we had only one version of constitution of Pakistan both as “de-facto” and “de-jure” , this consitution is called “Constitution of Islamic Republic of Pakistan” and had 17 amendments in it. On 3rd of November mad dictator of Pakistan imposed martial law in Pakistan and via “Provisional Constitution Order 2007” , put the constitution in abeyance. Later on under the same PCO , mad dictator promulgated the following orders:
1. Constitution (Amendment) Order, 2007
2. Constitution (Second Amendment) Order, 2007
Both of these orders made changes to the Constitution of Pakistan that was held in abeyance. There were numerous changes in the constitution through these orders. However let me describe one such amendment made through these orders.
4. Amendment of Article 198 of the Constitution:-
In the Constitution, in Article 198, after clause (1), the following new clause shall be inserted, namely:-
(1A) The High Court for Islamabad Capital Territory shall have its Principal seat at Islamabad.
Article 198 as in Constitution (Pre 3rd November 2007).
198. Seat of the High Court.
(1) Each High Court in existence immediately before the commencing day shall continue to have its principal seat at the place where it had such seat before that day.
(2) Each High Court and the Judges and divisional courts thereof shall sit at its principal seat and the seats of its Benches and may hold, at any place within its territorial jurisdiction, circuit courts consisting of such of the Judges as may be nominated by the Chief Justice.
(3) The Lahore High Court shall have a Bench each at Bahawalpur, Multan and Rawalpindi; the High Court of Sind shall have a Bench at Sukkur; the Peshawar High Court shall have a Bench each at Abbottabad and Dera Ismail Khan and the High Court of Baluchistan shall have a Bench at Sibi.
(4) Each of the High Courts may have Benches at such other places as the Governor may determine on the advice of the Cabinet and in consultation with the Chief Justice of the High Court.
(5) A Bench referred in clause (3), or established under clause (4), shall consist of such of the Judges of the High Court as may be nominated by the Chief Justice from time to time for a period of not less than one year.
(6) The Governor in consultation with the Chief Justice of the High Court shall make rules to provide the following matters, that is to say,-
(a) assigning the area in relation to which each Bench shall exercise jurisdiction vested in the High Court; and
(b) for all incidental, supplemental or consequential matters.
After the amendment by the “Constitutional Amendment Order 2007″ , the Article 198 reads as follows.
198. Seat of the High Court.
(1) Each High Court in existence immediately before the commencing day shall continue to have its principal seat at the place where it had such seat before that day.
(1A) The High Court for Islamabad Capital Territory shall have its Principal seat at Islamabad.
(2) Each High Court and the Judges and divisional courts thereof shall sit at its principal seat and the seats of its Benches and may hold, at any place within its territorial jurisdiction, circuit courts consisting of such of the Judges as may be nominated by the Chief Justice.
(3) The Lahore High Court shall have a Bench each at Bahawalpur, Multan and Rawalpindi; the High Court of Sind shall have a Bench at Sukkur; the Peshawar High Court shall have a Bench each at Abbottabad and Dera Ismail Khan and the High Court of Baluchistan shall have a Bench at Sibi.
(4) Each of the High Courts may have Benches at such other places as the Governor may determine on the advice of the Cabinet and in consultation with the Chief Justice of the High Court.
(5) A Bench referred in clause (3), or established under clause (4), shall consist of such of the Judges of the High Court as may be nominated by the Chief Justice from time to time for a period of not less than one year.
(6) The Governor in consultation with the Chief Justice of the High Court shall make rules to provide the following matters, that is to say,-
(a) assigning the area in relation to which each Bench shall exercise jurisdiction vested in the High Court; and
(b) for all incidental, supplemental or consequential matters.
Which Version of Constitution Proposed Constitutional Package Amends?
It is important to understand which version of the above two , proposed constitutional package is amending. Looking at the wordings of proposed amendment in the same article 198 as given in point 53 of the constitutional package.
53. Amendment of Article 198 of the Constitution.- In the Constitution, in Article 198, after clause (1), the following new clause shall be inserted, namely:-
(a) “(1A) The High Court for Islamabad Capital Territory shall have its principal seat at Islamabad.
(b) In clause (3), for the words “at Sukkur” the words and comma “each at Sukkur, Hyderabad and Larkana” shall be substituted.
(c) In clause (4), the word “in consultation with” shall be omitted.”
This clearly shows that the proposed package is “inserting” new clause 1A in the article 198 , which can only be inserted in “Pre 3rd November 2007″ version of Constitution.
So it is now clear that proposed constitutional package is not recognizing the existence of “Constitutional Amendment Order 2007″ at all. And is ascertaining that the amendments done through this order are not recognized as such part of the contitution of Pakistan.
Let us now discuss the article 270CC , I would first play the devil’s advocate (Farooq Naik the devil -:) to defend the article as the right way to restore the judges.
So according to the article 270CC , it is made clear that “Notwithstanding anything contained in the constitution, the Oath of Judges Order 2007, the High Court Judges Order 2007, the Supreme Court Judges Order 2007 and any other law for the time being in force or judgment of any court including a high court and the Supreme Court” , “the judges of Supreme Court and high courts including the chief justice of Supreme Court and chief justices of high courts who had ceased to continue to hold office in pursuance of the Oath of Judges Order, 2007, dated the 3rd day of November, 2007 shall stand reinstated/restored”.
The wording of this clause is not assuming the validity of “Constitutional Amendment Order 2007″ , or “Provisional Constitutional Order 2007″ , it is referring to “The Oath of Judges Order 2007″ and other related orders. Since these orders were issued by the mad dictator in his capacity as President of Pakistan , therefore they may be considered as “de-facto” orders which need to nullified. We have to agree with the assertion that the said orders are “for the time being in force” , therefore they must be nullified and article 270CC ensures that these orders are set aside. Similarly there is a “Judgment of Supreme Court” that declares that the “honorable judges” have “ceased to continue to hold office” , therefore this Judgment must also be set aside , and article 270CC ensures that too. Please note that the wording is not assuming the validity of these orders/judgment instead it is just assuming the existence of these orders/judgment. Makes some logic isn’t it?
Article 270CC busted
On the face of it the above devil’s advocate argument seems logical , however let us see how it negates itself. The “Oath of Judges Order 2007″ and all other related orders were issued in pursunace of “Provisional Constitutional Order 2007″ , these orders were never issued by the mad dictator in his capacity as president , let me narrate here the opening paragraphs of “Oath of Judges Order 2007″
Whereas in pursuance of the Proclamation of Emergency of the 3rd day of November, 2007, and the Provisional Constitutional Order No. 1 of 2007, the Constitution of the Islamic Republic of Pakistan has been held in abeyance;
Whereas Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the President has, and shall be deemed always to have had the power to amend the Constitution;
Whereas all Courts in existence immediately before the commencement of this Order will continue to function and to exercise their respective powers and jurisdiction subject to the Proclamation of Emergency and the Provisional Constitutional Order No. 1 of 2007;
And Whereas to enable the Judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office;
This is exactly similar to the paragraphs of “Constitutional Amendment Order 2007″, i.e both of the orders are issued in “pursuance of the Proclamation of Emergency of the 3rd day of November 2007” , however the article 270CC is recongnizing the existence of the “Oath of Judges Order 2007″ whereas the constitutional package is not recognizing the existence of “Constitutional Amendment Order 2007″.
Another important aspect to the argument of “de-facto” status of the current “dogar” judges and the honorable judges is that it requires an instrument to change this de-facto status. However the idea of using the constitutional instrument to recognize this de-facto status and then changing it is absurd to say the least. The illegal and void “executive orders” can and should be reversed by the legal and valid “executive” orders. Finally there is the question of Judgment by the dogar court , the executive order need not be concerned about the judgment of supreme court as the restored judges would have the responsibility of reviewing this judgment on the touchstone of legality of the bench that passed such judgment.
The whole problem is making the restoration of judges part of this stupid package. I think you should ask @admain to restore the text-color (RED) for the parts that are new etc .. that is very helpful for a visual person like me to understand the changes quickly.
down with dictators and their cowardly supporters!
Here is the new article.
http://pejamistri.wordpress.com/2008/06/07/mystery-of-270aaa-the-curse-of-dictators/
@TK
Mystery solved.
@peja: oh brother!
It is pity that those who were part and parcel of Mush’s illegal coup are presenting them as ‘democrats’ and custodians of constitution. These people are part and p[arcel of all unconstitutional and illegal acts of ush since Oct 12, 1999:
1. IK & Qazi duo: who wee part of conspiracies against NS government and who organized LONG MARCH and Tehrik-e-Nijat against NS in 1999 to pave way for military takeover. These people celebrated Oct 12 and supported Mush in referendum, 2002 elections and later indemnifying all his unconstitutional acts. These people also supported Mush to create NAB and impose BB-NS specific laws in the constitution. They shared power with Mush till fall 2007 and ruled two provinces.
2. Judges: who took oath under PCO in 1999 and validated Mush Martial Law in Zafar Ali Shah case. In 8 year Mush rule their rulings supported all his illegal act and didn’t took fresh oath under constitution after restoration of defaced constitution.
3. Generals Like JG Kiyani, Aslam Beg, Hameed Gul and many many more: They executed all illegal acts of Mush and previous dictators (Zia , Yahya). These criminals involved Army in politics and played all the dirty games against political leadership of the country. Now they are retired and instead of being ashamed of their acts they justify their own high-treason acts.
Today again they are conspiring against democratic forces and elected governments. They deserve to be punished under article six for being part and parcel of past coups.
Fourth category is people like Aitezaz and NS who have foot in two boats i.e. the boats of their past and present:
a) AA must get out of emotions and decide once for all if he wants to live under the banner of anti-democratic forces like Jamaat Islami and IK or follow the path of Bhutto? He should remember that Jamaat and NS party were part and parcel of Zia dictatorship when generals and judges were torturing and killing students, journalists, lawyers and political workers. Can he forget that Javed Hashmi and Professor Khurshid were in Zia’s Cabinet when Bhutto was hanged by PIOUS judges and Generals.
b) We should also not forget what NS did with judiciary to get rid of CJ Sajjad Ali shah. I believe he has learned his lessons on Oct 12. He knows that Military Mulla Alliance ruled the country with help from judges. Can he trust JI and IK who stabbed on his back at his bad time and ditch PPP that helped him on principles despite all the bad things he did with it?
PPP’s past is clear. It never came in power from back doors. It never compromised on rule of law and constitution. It never became part of any unelected or establishment-manoeuvred set-up. Mush didn’t allow PPP to form government in 2002 despite clear mandate. That was the time when JI, Mullas and generals were cleaning Mush’s back. Zardari and YRG spent years in jail not because they did some thing wrong but for the sole reason they didn’t toe the line of dirty General-Judges alliance supported by MMA.
Current anti-PPP campaign by Mush allies of past (generals, judges, APDM) is doing no favour to democracy. Their so called movement is helping no one except Mush. They gave Mush an opportunity to get out of his hole and attack elected parliament and government. Mush’s statement today and rejoinder by PPP should be an eye opener for those who think JI and IK type rejected politicians are democrats. They are not. Their past speaks of itself. Today again they are helping ‘establishment’ for a new coup.
Agitation never brought any change in dictatorships sponsored by Uncle Sam. NS knows that. This is the reason SS announced to keep ‘official relationship’ with Mush and also with PCO judges. Isn’t this the same stance for which PPP is being bashed around by media?
Do we have any lesson from current situation of Bangladesh? We can get the same results in Pakistan by same behaviour. Agitation will bring a fresh GENERAL supported by FRESH Judges to kick around ‘corrupt politicians’ another time. This time not only Zardari
So what is the solution?
Solution lies with complete support to parliament. Political decisions should be made in parliament not streets. An effort to dictate the parliament by street pressure with do nothing except giving the role of parliament to GHQ.
@saqib,
“Solution lies with complete support to Parliament”.
If this is the case, then why are you objecting when last parliament brought 17 amendment? That constitutional change also legalized the removal of Judges including Chief Justice Saeed uz Zaman Siddiqui and indemnifying Musharraf’s 12th October actions either directly or indirectly.
If PPP did not support 17th amendment, then why you expect everyone support 18th amendment when we don’t need any amendment before restoration of Judicary, as declared by all ex-Chief Justices of Pakistan?
MQM and JUI had full role in doing 17th amendment, then why PPP has partnered with them when PPP did not even need them? Even PMLQ leader like Watto and Musharraf’s Salman Taseer have been rewarded by top positions in current setup by PPP.
@ Rasheed,
In any democratic system, parliament represents the will of people. So it is supereme.
2002 Parliament was not a true reprasentative of people. ISI openly tempered the results in favour of pro-Mush groups including MMA. Despite all pre-poll and after-poll rigging, PPP emerged as largest party. You know how PPP was broken through Patriots.
Despite all the short comings of 1985 and 2002 parliaments, their indemnity of dictators Zia and Mush is effective in the country and all including 2002 PCO judges accept those amendments as valid and justified.
Current parliament is not giving indemnity to any of Mush’s unconstitutional acts. I hope so because there is no JI in the assembly. The proposed constitutional package only indemnify sme necessary stuff including elections that were held under PCO government. These proposals are open for discussions inside parliament. 1973 constitution was drafted in the same manner. If you know, the initial draft of 1973 constitution was of presential form. Shaheed Bhutto had enough strength in parliament to get that constitution unilaterly approved. But he decided to put that draft in front of all parties in parliament and after several months of intense negotians he agreed to change the constitutiuon to parliamentry form and incorporated almost all proposals frm opposition. That is how PPP worked. PPP even supported NS to undo Zia’s 8th. amendment despite NS’s severe victimization of party and its leadership.
PPP also wants to undo 17th. amendment that Q-league, MQM and MMA brought. If MQM and JUI-F are ready to support to undo their wrongs of past, what is bad in that? Watto won elections as independent and now joined PPP. He did not contest elections on Q ticket. Salman Taseer used to be a PPP leader but right now he is representing Mush the defective president.
The real issue of the country is restoration of the 1973 constitutions repatedly raped by dirt alliance of Generals-Judges-Mullas. Restoration judges apponted and fired by Mush is not the real issue. PPP an NS understand this.
@saqib
I totally agree with Rasheed. In addition, you talk about the past and the present of different parties – which is justified – but you shut your eyes tight to PPP’s present. At least please don’t exhort the rest of us to follow blindly the Pied Piper into the river!
And ofcourse, decisions should be made in the parliament, but the protest needs to be done on the street, so that parliament knows we are watching and we care, and we will not let them ignore their responsibility – which is what the PPP is currently doing.
What is this scare mongering? That we should not remind the govt what we put them in office for other wise the army will take over? Peaceful protest on the street is the public’s speech, its point of view, and it should NOT be equated to some form of naughtiness that will trigger a coup by the army to fix the naughty child.
@ saqib
I think PPP was one of those parties would distributed sweets when NS government was overthrown in 1999 and Mush took over.
They have the ministers who term Mush as a national asset!
They have the highest number of persons who have been charged of corruption.
Salman Taseer is just one *^&%&#$$@
PPP never had a clean sheet, they came with America’s support, they had a deal, NRO…. what makes them clean?
Zardari, Naik, Babar Awan, Latif Khoos are the faces of Munafiqs.
Nawaz Sharif needs to come out clean on why he is not part of ‘Long March’?
Day by day now – people are going to have doubts on NS’s credibility. I think this is all noora kushti on his behalf.
I have found this on the PTI website.
“Imran Khan will lead a big procession in Islamabad, Karachi Company on 13th to welcome Long March coming to Islamabad.”
says admin of PTI website. Imran will be back on June 10.
http://www.insaf.pk/Forum/tabid/53/forumid/1/tpage/1/view/topic/postid/29348/Default.aspx#29348
“Justice denied anywhere diminishes justice everywhere.”
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