‘Removal of judges under PCO invalid' -Pakistan Press Foundation (PPF)

Paksitan Press Foundtion

‘Removal of judges under PCO invalid’

LAHORE-Lawyers argue that the PCO would remain in conflict with Article 209 of the Constitution, no matter, if it is approved by the Parliament or even if the newly elected members have taken oath under a Constitution amended by the November 3 steps.

In view of senior advocate A.K Dogar, judges who took oath under the PCO last time, were not judges under the Constitution.

‘The removal of judges under this Order is also invalid, as a judge can be removed only through the Supreme Judicial Council under Article 209. The position will stay even if the Parliament would adopt the PCO’, he added.

A big question has also been cropped up whether oath by the Parliamentarians elect under the Constitution amended by the PCO and measures adopted in light of the state of emergency on November-3 last, will amount to conceding the same and closing door to any further action unless a two-thirds majority of the members plays it role.

The emerging situation in the first session of the National Assembly appears to be drawing a close parity with that prevailed on November 16th 2002, when the new Assembly at that time refused to take oath under the LFO-affected Constitution and ended up at taking oath on the Constitution of 1973.

Following long discussions in that Parliament, the LFO was incorporated in the Constitution with approval of a two-thirds majority.

Despite the fact a precedent is available to come out of a possible impasse on the Constitution in the upcoming oath-taking session, however, in view of the lawyers, the session may not be tension-free because of the different stands of the winners and the losers.

A number of lawyers expressed consensus that the present PCO must be approved by Parliamentary on the line it was done for the 17th Constitutional Amendment. They found that the emergency of November-3 was invalid. They maintained that in a coup, the Army Chief did not have any other means except extra-Constitutional one but in the last coup, the Army Chief also became the President wielding Constitutional powers he avoided to exercise on the civil side.

They said that the November-3 action stood validated by the Supreme Court Bench of those judges who himself had taken oath under the PCO.

Lawyers did not accept the decision believing that the PCO was unconstitutional therefore the judges’ oath as well as the Court decision was also questionable. On this President SCBA, Aitzaz Ahsan has already said that the new Parliament could declare void even through an executive order.

A senior lawyer, Shahzad Shaukhat said that as the rival parties were given the maximum number of seats this time, it was generally regarded as a scale to assess real strength of President Pervez Musharraf. Now, the room appeared less for the same sort of solution as it was at the time of marathon discussion, he added.

According to lawyers, ‘A fear may lurk in mind of the new Parliament that if annulled the PCO later on, it will be deemed to have done after the PCO has become a part of the Constitution’.

The 17th Constitution Amendment was made not to include the LFO but to exclude certain things from it when the Constitution was deemed to have incorporated the Order under the authority given to the CE at that time by the SC.
The PCO and the SC validation draw parallel with what has been taking place in the past.

However, previously an Army Chief had resorted to extra-Constitutional measure to build edifice to give legitimacy to his action and for the Constitutional authority in a way, which he also brought in the PCO. But here, the action has been taken, when the Constitutional power was already available to the President but he took to extra-Constitutional measure, said senior advocate Mansoor Ali Shah viewing the Presidential action invalid.

Dogar said that it was irrefutable Constitutional position that even if the next Parliament adopted the PCO 2007, it would remain in conflict with the oiginally enacted Article 209.

This conflict, in his opinion, might ,however, be resolved through an ‘advice’ by the new PM to the President under the Article 48 to issue a notification that the action taken by the Army Chief on November-3 was against the provision of Article 209 in light of Mahmood Achekzia, Shahid Nabi Malik-1997 and Malik Asad Ali-1997 cases, he added.

He continued ‘but the Parliamentarians have to overcome the problem that under which Constitution they have to take oath’. On that, Dr Dogar said that they could insist on taking oath on the Constitution as it existed on November 2 2007.

Whether it was that easy, only time could prove, commented a lawyer.
Source: The Nation
Date:2/26/2008