Two-thirds majority not needed to restore deposed judges: eight former Justices issue joint statement

A joint statement of former chief justices and judges of the Supreme Court (SC) has termed the Musharraf-backed constitutional changes on judges' removal as invalid saying that no President has the power to make permanent amendments in constitution.
Those issuing the statement are Justice Saiduzzaman Siddiqui, Justice Ajmal Mian, Justice Fakhruddin Ebrahim, Justice Kamal Mansur, Justice Deedar Hussain Shah, Justice Mamoon Kazi, Justice Nasir Aslam Zahid and Justice Sajjad Ali Shah.
The statement issued on Saturday also said that no two-thirds parliamentary majority was required to restore the deposed judges and a simple resolution backed by people's representatives denying affirmation to the purported amendments in the National Assembly would be enough. The following is the text of the statement:
"We, the former Chief Justices and judges of the Supreme Court of Pakistan, having deeply examined the various legal and constitutional issues concerning the illegal removal of judges of the superior courts and being perturbed by the unwarranted controversy created in relation to their restoration, are of the considered opinion that:-
"The removal of judges which was admittedly unconstitutional being in defiance of Article 209 of the Constitution could not be validated by the unilateral act of one individual through the so-called introduction of Article 270-AAA and purported amendments to 270-C in the Constitution nor could it be validated by the Supreme Court.
"On no principle of State Necessity can one individual purport to make permanent changes in the supreme law adopted by the consensus of the people. At most, even if an individualised power to amend were to be conceded, such power can only be available during the period of deviation/emergency and, upon restoration of the Constitution, the power to make changes as well as the effects thereof stand completely effaced unless duly indemnified by the Parliament.
"The amendments introduced in the Constitution by General Ziaul Haq and General Pervez Musharraf in 1985 and 2002 could only become part of the Constitution after they were duly adopted and affirmed by a two-thirds majority of the Parliament through the Constitution (8th Amendment) Act, 1985 and Constitution (17th Amendment) Act, 2003.
"Since Articles 270-AAA and 270-C (2) have not been adopted by a two-thirds majority of the Parliament, hence they are not part of the Constitution. The power to make permanent amendment in the Constitution does not vest in the President. Nor can any court confer such a power; particularly a bench appointed through an unconstitutional instrument and acting in defiance of order dated 3 November 2007 passed by the Supreme Court established under the Constitution.
"Accordingly, a two-thirds Parliamentary majority is not required to restore deposed judges. A simple resolution in the National Assembly reflecting the intention of the people's representatives to deny affirmation to the purported amendments would provide more than sufficient backing for the executive to do the needful which is, in any event, obligated under Article 5 and 190 of the Constitution to take immediate measures restoring all Chief Justices and judges removed on 3 November 2007 (save those having reached the age of superannuation) and issue necessary directions to concerned law enforcement agencies enabling the deposed judges to resume their judicial duties. History shall be unforgiving to those who attempt to scuttle the mandate of the people for the restoration of constitutional democracy and an independent judiciary.
"With respect to new appointments made during and after the PCO regime, we are of the view that removals being unconstitutional, no new appointments of Chief Justices or judges could be made against existent or non-existent vacancies particularly without consulting the de jure Chief Justice. Nevertheless, on humanitarian considerations the cases of deserving meritorious appointees could be considered for fresh appointment in accordance with the exercise carried out in Al-Jehad Trust case."