Midnight alarm in capital
By Nasir Iqbal
ISLAMABAD: In a dramatic development which may take the current confrontation between the judiciary and executive to a new and more alarming level, the Chief Justice of Pakistan and his brother judges decided in a midnight meeting to set up a 17-member larger bench to look into reports about the government’s hitherto unannounced plans to revert the March 16, 2009, restoration of superior court judges.
The unprecedented assembly of the Supreme Court judges was the high point of the daylong feverish activities witnessed within the precincts of the apex court building, during which the chief justice and other judges had spent most of their post-work time in a closed-door consultative process.
According to some accounts, this meeting was held for over six hours during which all aspects of the current situation, particularly the government’s position on the 18th Amendment case and its possible implications, as well as the official response, or lack of it, in the NRO case were discussed.
At one point the situation had started to ease up when the judges had left the building and gone back to their residences, only to assemble again at Chief Justice’s request.
Interestingly, this late-night action by the judges was prompted by reports on a couple of private TV channels, which suggested that the prime minister might be contemplating to withdraw the earlier notification under with Chief Justice Iftikhar Mohammad Chaudhry and dozens of superior court judges had been restored to their respective positions in the supreme and high courts.
Prime Minister Yousuf Raza Gilani acted immediately in a damage-control bid and denied the reports. He said that elements were trying to pit the executive against the judiciary.
And Information Minister Qamar Zaman Kaira dismissed the reports as ‘baseless rumour’ and said that TV channels which had spread the rumour would have to explain their position.
The rumours started doing the rounds apparently when it was reported that President Asif Ali Zardari had held a detailed meeting with Advocate Sharifuddin Pirzada and Law Minister Babar Awan during which it was decided in principle to withdraw the notification.
An order issued by the Supreme Court Registrar’s office declared that a 17-member bench had been constituted which would take up on early Friday morning the government’s alleged intentions to de-notify the restoration of judges.
The post-midnight order acknowledged that the assembling of judges at the meeting was prompted by the television reports and the judges concerned declared that the restoration was a settled issue and action against judges could now only be taken under Article 209 of the Constitution, and not through another prime ministerial order.
Although a number of television channels quoted government officials as saying that restoration of judges was a settled issue, tension continued till late in the night, with apex court judges going into a pro-active mode by meeting past-midnight and setting up the larger bench, clearly indicating that the court intended to take the government head-on on matters concerning the independence of judiciary.
It’s not clear how the rumours about the possible government move started, and if at all there was a plan to withdraw the executive order of the prime minister through which the judges had been restored. But the power of television became more pronounced on Thursday night when the superior judiciary reacted on the basis of TV reports, and not only met in the middle of the night but also set up a larger bench to pose a counter-challenge against any possible move to curtail or cut down its powers.
The court order said that the issue of restoration of judges through notification had already been conclusively settled by the Supreme Court in its July 31 judgment. The order also cited the relevant paragraphs from the court verdict:
“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 N. 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 a 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 office sin pursuance of the afore-mentioned alleged judgments or any other such judgment 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,” the order said.