The proceedings in Court Room No 1 of the Supreme Court on Friday reflected the fact that the full bench of the Supreme Court 2010 had learned a valuable lesson from its own experience of November 2, 2007: that media reports of imminent extra constitutional executive action may have credence.
The midnight meeting of the 17 Judges of the Supreme Court took note of media reports that the executive branch of the government was considering withdrawing its executive order of March 16, 2009, which had reinstated the Judges, sacked during Musharraf regime. The Prime Minister's subsequent verbal denial did not ease the judiciary's concerns, and the trust deficit between the two organs of the state widened as a consequence of the refusal of the Prime Minister to give a written undertaking that the government was not going to revoke the March 16 administrative order, as he was 'busy'.
The apex court finally broke its silence, and the government mysteriously maintained it, which not only created doubts but also added to the rampant fears of an imminent collision between the two pillars of the state that might leave one severely wounded.
"This is not the first time that such news has spread. It happens whenever a high profile case is before the court. It would not be out of context that before and after October 13-case pertaining to NRO review, such things are discussed," observed Chief Justice Iftikhar Muhammad Chaudhry while thanking media for airing and publishing the news.
Addressing Attorney General Maulvi Anwarul Haq, at the end of proceedings, the CJP stated that he was well aware of such development, and added: "This news was not false".
However, the government once again sought more time to negate media reports and decide whether it wants to abide by the law or not, which the court had asked the AG to submit in writing after consultation with the Prime Minister, the Chief Executive of the country.
"The PM is busy", told the AG after two-and-a-half hours of court direction, prompting Justice Jawwad S Khawaja to ask: "What kind of meeting is it that the PM cannot spare even a few minutes for an issue which is more important than anything else?" Justice Asif Saeed Khosa observed, "We apprehend a serious threat to constitutional governance of the country, and your reluctance is feeding our apprehensions." "Procrastination seems to be the only strategy of the Federation," Justice Khalilur Rehman Ramday noted.
In 2007, when a similar situation had emerged, Barrister Aitzaz Ahsan had filed an application requesting the court to take notice of the situation. Despite the fact that the then AG Malik Muhammad Qayyum had made a categorical statement on November 2, 2007 that the government was not considering any unconstitutional step to stall proceedings against former President Pervez Musharraf in his dual office case, the next day on November 3, 2007-Musharraf declared emergency rule and promulgate Provisional Constitutional Order and over 60 judges of superior judiciary, who refused to take oath under the PCO, were sacked.
Comparing the present with the past it appears that the situation is worse, legal experts argue, as the present government, unlike its predecessor, has yet to make a commitment through a written statement that it does not intend to subvert the constitution.
The Chief Justice did mention the statement issued by Prime Minister Yousuf Raza Gilani on the floor of National Assembly where he stated that the 'executive order' required validation from Parliament.
'To be or not to be-that is the question' said Prince Hamlet while contemplating revenge upon the murderers of his father. The circumstances after Thursday night's reports, so-called 'rumours', were not much different. The government was reported to be in the process of withdrawal of the 'executive order', and the Supreme Court looking for legal remedies for any such move. A bench of 17 judges took up the matter to clear the mist and confusion and asked the AG to file a written reply that 'government does not want to violate the constitution'.
After failure to get a commitment, the court noted that withdrawal of the 'executive order' "is tantamount to subversion of the constitution" as it is a settled principle. In its July 31, 2009 decision, the apex court had declared all steps taken by Musharraf as unconstitutional.
Relevant portion, para 21 reads: "The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No 1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No 1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him like-wise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President's Order No 5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President's Order No 6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President's Order No 7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President's Order No 8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President's Order No 9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Constitution and consequently being illegal and of no legal effect. As consequence thereof: the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgements or any other such judgement and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration."
"As far as the executive order is concerned, it has lost its value and cannot be restored. If there is any such attempt, it would be tantamount to destabilise a pillar of state," said the Chief Justice in a short order. Why did the court hold that any attempt to pack the Judges of superior courts would be a subversion of the constitution that would invoke Article 6 (High Treason) of the Constitution? First, removal of a Judge cannot be done except thorough Article 209 of the constitution. Second, the constitution does not include any provision through which all of the superior courts Judges can be sacked.
After having elaborated any would-be action to destabilise the judiciary, the apex court in its short order directed 'all administrative and constitutional heads' to ensure constitutional governance in the country. However, the court once again gave time to the government and fixed the matter for October 18 (Monday) with a direction for the Prime Minister to hold an inquiry over the dissemination of the news that expressed designs of the government. And, once again, it's government's turn to prove all such 'rumours' false.
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