"Restoration of pre-November 3, 2007 judiciary is not a complicated constitutional issue and the National Assembly can restore it by a simple majority vote".
This was the consensus opinion of eminent jurists and legal minds like former Chief Justices of Pakistan, Syed Sajjad Ali Shah, Saeeduzzaman Siddiqui, former Justices Mamoon Qazi, Wajihuddin Ahmad and Khawaja Mohammad Sharif, whose opinion was sought on this contentious question of jurisprudence in a private TV channel programme.
Political analysts are apprehensive that restoration of pre-November 3, 2007 especially the deposed Chief Justice Iftikhar Mohammad Chaudhry may end up in a head on collision between the new elected government and President Musharraf.
They say that in restoration of the deposed judges under the Provisional Constitution Order and the State of Emergency, General Musharraf sees ultimate end of his Presidency, whereas the political parties sure to form the new government at centre and provinces, have made public commitments for their restoration.
President Musharraf's appointee Attorney General of Pakistan Malik Mohammad Qayyum says that the steps taken under the PCO and the State of Emergency have already been validated by the Supreme Court headed by Justice Abdul Hameed Dogar and become part of the Constitution.
He says the new government could bring about any change in the PCO measures by a two third majority of Parliament, which it was not likely to muster for a long time. One the other hand, former Chief Justices, elected bodies of Pakistan Bar Council, Supreme Court and High Court Bar Associations argue that it is President Musharraf, who needs two third majority of the parliament to validate his extra-constitutional measures of November 2007.
Former Chief Justice Sajjad Ali Shah said that in 1985 General Ziaul Haque got his extra-constitutional measures validated by the Parliament through 8th amendment in the Constitution.
He said in 2003 General Musharraf also got his October 12 1999 military take over and subsequent amendments in the constitution approved by the new Parliament through the 17th Constitutional amendment.
He said the Constitution does not give powers to an individual to amendment the Constitution. "Under Article 238 and 239 only Parliament can amend the constitution by a two third majority, he added. Justice Sajjad said the courts validated the constitutional deviation only for the period in the past, when parliaments were non-existent or dissolved by military dictators. "But once the Parliament comes into being, it is the Parliament which legislates and validate the constitutional deviations", he added. He said if the new parliament does not validate November 3 PCO then the pre-3rd November Judiciary automatically stands restored.
Participating in the discussion former Chief Justice Saeeduzzaman Siddiqui said the National Assembly could restore the deposed judges through a simple majority vote. He said the National Assembly is a sovereign body and its Speaker can also give his ruling about the validity of the PCO and restoration of the pre-3rd November 2007 judiciary.
Former Justices Mamoon Qazi, Wajihuddin Ahmad and Kh. Mohammad Sharif declared (deposed) General Musharraf's November 3 measures as ibinitio (from the very beginning) viod and illegal. Justice Qazi said if the National Assembly passes a resolution to the effect " Notwithstanding any ruling or verdict of any court, the National Assembly considers General Musharraf November 3, 2007 steps illegal and ultra-constitution,", the deposed judiciary would stand restored.
Justice Wajihuddin, who did not take oath as Judge of the Supreme Court under 2000 PCO and was a Presidential candidate in 2007 elections, said "the validity given by the Supreme Court bench headed by Chief Justice Abdul Hameed Dogar to the PCO and other measures of General Musharraf November 3 has no strength in the eye of law since members of the bench were the direct beneficiary of the PCO.
Siddiqui said that only two houses of Parliament could amend the Constitution by two third majority vote under Article 238 and 239 of the Constitution.
He said if the newly elected parliament does not validate the extra constitutional steps taken by the then Chief of Army Staff General Pervez Musharraf under the Provisional Constitution Order 2007 and the State of Emergency, the judiciary would be automatically stand restored.
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