Tuesday, May 13, 2008

Restoration of the Judges in line with Charter of Democracy

Today Asif Zardari claimed on GEO TV that those who had taken oath under the PCO once could not be restored under the Charter of Democracy. I would like to point out that this statement is blatantly incorrect and comes across as a deliberate attempt to derail the restoration of the judges. The restoration of the deposed judges is directly in line with the Charter of Democracy and it is a legal, moral and political responsibility on the current government to reinstate them as soon as possible.

Please forward this to all media persons so that they can expose this latest lie being propagated to impede the restoration of the deposed judges.

  1. Thankfully this time the people of Pakistan are well informed on the Charter of Democracy. According to Article 3 (b) of the said document:

    "No judge shall take oath under any Provisional Constitutional Order or any other oath that is contradictory to the exact language of the original oath prescribed in the Constitution of 1973."

    I would like to point out two things in this:

    1.1) Please note that that the wording makes it clear that judges were not to take oath under PCO AFTER the signing of the Charter of Democracy in 2006. "Shall" clearly talks only about the future. All those who did take oath on 3rd Nov, including PPP's favorite Mr. Dogar, have violated the charter of democracy.

    1.2) It does not mention the removal of any judges who had taken oath under the Oath of Office (Judges) Order, 2000 (No. 1 of 2000).

    1.3) Article 3(a) and all its sub-articles discuss future appointments and not current ones. These are the articles which deal with the constitutional committee on judges and deals with future appointments only. Current judges are not affected by this committee.

  2. Under the Amendments to Article 270-AA through the 17th Amendment, oaths taken under the Oath of Office (Judges) Order, 2000 (No. 1 of 2000) would be treated as if they had been taken under the Constitution of Pakistan.

    2.1) The Supremacy of the Constitution binds us to accept an act passed by 2/3rd majority, irrespective of our opinion on it.

    2.2) The oath of the judges taken under the Oath of Office (Judges) Order, 2000 (No. 1 of 2000) after passing of the 17th Amendment is not in conflict with the Charter of Democracy. This was well understood by both the PPP and PML-N as they specifically talked about events from the signing of the Charter of Democracy.

    2.3) No such indemnity has been given to Musharraf's actions of Nov 3rd and all PCO judges are unacceptable according to the Charter of Democracy.

    2.4) Like the PPP accepts Musharraf having 58-2(b) which was included in the 17th Amendment, the PPP must also accept that the Oath taken in under Oath of Office (Judges) Order, 2000 (No. 1 of 2000) of the 2000 PCO is to be treated as it were taken under the Constitution. It can not selectively choose to accept or reject parts of amendments the way it pleases.

  3. The inductees after PCO can not be accepted if the Charter of Democracy is followed. PPP is going against the Charter of Democracy by including their retention in its demands.

  4. To overturn Musharraf's illegal actions of 3rd Nov, a simple executive order is needed. This is the opinion of 22 former judges of the Supreme Court and 5 former Chief Justices (including many of those who did not take oath under any PCO).

    4.1) The only reason why a 2/3rd majority would be needed is if Musharraf's actions of Nov 3rd were considered legal, which he himself has confessed were illegal many a times.

    4.2) The argument for needing 2/3rd majority for overturning illegal actions of Musharraf is in conflict with the Charter of Democracy.

    4.3) The PPP already has overdone some of Musharraf's illegal actions through executive orders. For instance the incarceration of the deposed judges was illegal and was overturned with an executive order. In the very same way the deposed judges can be restored through a simple executive order.

  5. Public sentiment is strongly supportive of this. According to the IRI statistics:

    • 73 % of Pakistanis oppose the PCO judges.
    • 81 % of Pakistanis want the CJ Iftikhar Chaudhry back to his rightful office.
    • 72 % want IMMEDIATE removal of Musharraf.
    • 66 % of Pakistanis support lawyers, students and civil society in their protests.

  6. There are many PPP leaders who are on record for promising to restore the judges if elected to power. There are many more who had promised removal of Musharraf. Even Benazir Bhutto also promised to reinstate Chief Justice and the deposed judges, a statement that has not been retracted and stays on the record. By going eating its own words, the PPP has undermined its credibility in the eyes of the people. IRI polls suggested that the PPP would get more than 50% of the votes but ended up getting only 31% because it did not take a stance on the restoration of the judges.

  7. PPP was actively involved in the restoration of the Chief Justice after March 9th, 2007. They had organized rallies, protests, hunger strikes and welcome receptions for him. The first major demonstration demanding immediate restoration of the Chief Justice was held in Islamabad on Friday, March 16th and was attended by Makhdoom Amin Fahim, Raza Rabbani, Yousaf Raza Gillani, Raja Pervez Ashraf, Jehangir Badar, Nisar Khoro, Naheed Khan, Sherry Rehman, Safdar Abbasi, Latif Khosa, Fauzia Wahab, Fehmida Mirza, Azra Fazal, Nayyar Bokhari and Enver Baig of the PPP. When it was not in power the PPP actively engaged in public pressure against Musharraf for the reinstatement of one person. After coming in power it has categorically said that it will not reinstate "personalities" which tarnishes its credibility further and desecrates the blood of 40 of its workers who gave their live in Karachi for the restoration of one person, the Chief Justice.

    If the PPP is ditching the movement after coming to power should we believe that the PPP merely hijacked the movement for its own political gains?

  8. Civil society all across Pakistan is unanimous in their position. They have been silent to give PPP more time as had requested by Mr. Asif Zardari. However we will return to the streets very soon now.

    Our position:

    • Our struggle is for complete restitution of the Pre-Nov 3rd judiciary with all its powers and members. There will be no compromise on that.

    • We believe a simple executive order is enough to overrule the illegal actions of Musharraf.

    • For moral backing a parliamentary resolution may be called for to show the will of the people of Pakistan. Once a resolution is passed, the executive will be bound under article 5 and 190 of the Constitution to take immediate measures restoring all chief justices and judges removed on 3 November 2007 and issue necessary directions to concerned law enforcement agencies enabling the deposed judges to resume their judicial duties.

    • All the deposed judges are still the real judges of Pakistan. Honorable Chief Justice Iftikhar Muhammad Chaudhry is still the real Chief Justice of Pakistan.

    • We do not accept those who were inducted after the PCO (commonly known as PCO judges but it is really a disgrace to call them judges). Accepting the PCO judges will also be against the Charter of Democracy. The PPP must not go against the Charter of Democracy.

    • Our stance is in line with the opinion of all of the lawyers and bar councils of Pakistan, 21 former judges of the Supreme Court, 5 former Chief Justices of the Supreme Court and the vast majority of Pakistanis.

    • We do not accept Musharraf as a legal ruler of Pakistan and all his actions of 3rd Nov are acts of high treason to be punished by the strictest possible punishment under article 6 of the Constitution.

    • We will always work for rule of law and democracy in Pakistan. We believe this can not be done without the restoration of the judiciary.

    • Supremacy of the Constitution and the Parliament must always be respected. However we deserve the right to criticize and expose any elected or unelected member for any undemocratic or inappropriate actions.

Text of Charter of Democracy: http://www.dawn.com/2006/05/16/local23.htm

IRI Polls of November 2007: http://www.iri.org/mena/pakistan/2007-12-13-pakistan.asp

IRI Polls of January 2008: http://www.iri.org/mena/pakistan/2008-02-11-pakistan.asp

People's Party Workers Preparing for Welcome of CJP: http://www.dawn.com/2007/05/06/nat4.htm

PPP's MNAs and other key figures at rally demanding reinstatement of a personality: http://www.dawn.com/2007/03/17/top1.htm

PPP demanding to include PCO judges: http://www.dawn.com/2008/05/12/top6.htm

In Solidarity,
Samad Khurram
Harvard College
394 Winthrop House Mail Center
Cambridge, MA 02138
E-Mail: skhurram@fas.harvard.edu
Cell(US): +1-(617)960-7289
Cell(PK): +92-300-5599085