IN his article, ‘Who can alter the basic law’ (Feb 14 and 15), Mr Justice (r) Rana Bhagwandas has conclusively argued that on no pretext could a permanent change in the Constitution be countenanced at the behest of the Chief of Army Staff (as Pervez Musharraf then was) or by a court. Mr Khalid Jawed Khan, in his article (Feb 28), has demonstrated that the entire action of removal of judges could be nullified by issuing notifications rescinding earlier notifications of removal.
Everyone in Pakistan now knows that judges of high courts and the Supreme Court can be removed only through proceedings under Article 209 of the Constitution. Notifications removing some of the judges, which were issued on Nov 3, 2007, were signed by the principal secretary to the government of Pakistan, Law, Justice and Human Rights Division. Subsequent notifications were also signed and issued by the same state functionary. That being so, all that is required is that the principal secretary rescinds his earlier notifications.
There is no valid justification for the issue of the purported removal of the judges to be taken to parliament. What was done on Nov 3, 2007 was, to say the very least, mischievous and activated by malice; malice in law and malice in fact.
To take this issue to parliament would amount to giving it a hint of legality which is completely unacceptable. It is to be noted that out of the three organs of the state, i.e. the executive, the legislature and the judiciary, only the last one is based on the concept of tenure. The executive and the legislature, under the Constitution, have been given specific terms of office, which is to say that they are permitted by the Constitution to hold office for certain specified periods of time.
Subject to the Constitution, judges of the superior courts hold office until they attain retirement age. In institutions in which the individuals have tenure and constitutional protection, the individuals are deemed to constitute the institution.
Therefore, there can be no cavil with the proposition that the judges are the court. Without the judges who formed the court under the constitutional dispensation, it cannot be said that functional high courts continue to exist. The same applies to the Supreme Court.
For their part, the politicians must realise that one of the reasons for the resounding defeat of the supporters of Pervez Musharraf was his action of Nov 3, 2007. They should remember his infamous action contributed greatly to their success. In any event, a strong and independent judiciary is essential for democracy.
Everyone in Pakistan now knows that judges of high courts and the Supreme Court can be removed only through proceedings under Article 209 of the Constitution. Notifications removing some of the judges, which were issued on Nov 3, 2007, were signed by the principal secretary to the government of Pakistan, Law, Justice and Human Rights Division. Subsequent notifications were also signed and issued by the same state functionary. That being so, all that is required is that the principal secretary rescinds his earlier notifications.
There is no valid justification for the issue of the purported removal of the judges to be taken to parliament. What was done on Nov 3, 2007 was, to say the very least, mischievous and activated by malice; malice in law and malice in fact.
To take this issue to parliament would amount to giving it a hint of legality which is completely unacceptable. It is to be noted that out of the three organs of the state, i.e. the executive, the legislature and the judiciary, only the last one is based on the concept of tenure. The executive and the legislature, under the Constitution, have been given specific terms of office, which is to say that they are permitted by the Constitution to hold office for certain specified periods of time.
Subject to the Constitution, judges of the superior courts hold office until they attain retirement age. In institutions in which the individuals have tenure and constitutional protection, the individuals are deemed to constitute the institution.
Therefore, there can be no cavil with the proposition that the judges are the court. Without the judges who formed the court under the constitutional dispensation, it cannot be said that functional high courts continue to exist. The same applies to the Supreme Court.
For their part, the politicians must realise that one of the reasons for the resounding defeat of the supporters of Pervez Musharraf was his action of Nov 3, 2007. They should remember his infamous action contributed greatly to their success. In any event, a strong and independent judiciary is essential for democracy.
KAZIM HASAN
(Barrister-at-Law)
Karachi
[Dawn Letter to the Editor, 02 March 2008]
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