KARACHI, March 15: Eight former judges of the Supreme Court, three chief justices among them, have affirmed that the removal of judges under the emergency decree on Nov 3 was unconstitutional and that a resolution in the National Assembly would be “more than sufficient” for their reinstatement.
“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,” the former judges said in a joint statement released on Saturday.
“Since Article 270-AAA and 270-C (2) have not been adopted by two-thirds majority of the parliament, 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 Nov 3 passed by the Supreme Court established under the Constitution,” the statement went on to say.
The statement was signed by Justice Ajmal Mian, Justice Sajjad Ali Shah and Justice Saiduzzaman Siddiqui, former chief justices of Pakistan, Justice Fakhruddin G. Ebrahim, Justice Deedar Hussain Shah, Justice Mamoon Qazi, Justice Nasir Aslam Zahid and Justice Kamal Mansour Alam.
The former judges said no “principle of state necessity” allowed an individual to “make permanent changes in the supreme law”.
“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 statement recalled that the amendments introduced in the Constitution by Gen Ziaul Haq in 1985 and by Gen Pervez Musharraf in 2002 had become part of the Constitution only after they were adopted by a two-thirds majority through the 8th Amendment Act of 1985 and through the 17th Amendment Act of 2003.
“Accordingly, a two-third 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 articles 5 and 190 of the Constitution to take immediate measures restoring all Chief Justices and judges removed on Nov 3 (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.”
About the judges appointed during the emergency and since, the statement said the “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,” the statement said.
Source: http://www.dawn.com/2008/03/16/top16.htm
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