Judges in Pakistan
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Judges in Pakistan: the 1972 judgement
Judges’ issue: revisiting the 1972 judgment
By Syed Iqbal Ahmad
THERE are diverse views and opinions about how the pre-November 3 judiciary can be restored. The issue has been made more complex and complicated by President Pervez Musharraf, who, in his capacity of the Chief of the Army staff, did so by issuing PCO in his zeal to get a seal of authenticity affixed to his presidential candidacy from his self-appointed Judges of the apex court. Ironically and in bad taste, the general in his wisdom also thought it fit to promulgate after a few days a Presidential Order for substantially increasing the salaries and allowances of his PCO Judges.
However, what made the confusion more confounded was that of the arbitrary addition of Article 270AAA regarding validation and affirmation of laws etc. w.e.f. 21.11.2007, amendments to the Articles 41,44,193,194,208 and 270C of the Constitution w.e.f. 14.12.2007 and incorporation thereof as part and parcel of the Constitution vide President’s Orders Nos. 5 and 6 of 2007, the validity of which shall not be called in question by or before any Court, including the Supreme Court, Federal Shariat Court, any High Court, any forum or authority on any ground whatsoever.
The sole purpose was to pre-empt the anticipated judgment against his claim of being a candidate to the office of the president from the 13-member bench of the Supreme Court, the hearing of which was at the fag end and to obtain a favourable judgment from his hand-picked PCO judges of a newly constituted Supreme Court of his choice.
On the legality or otherwise of ratification by the PCO judges of Supreme Court, I wish to add that there is both substance and logic in the statement of Mr Justice Fakhruddin G. Ibrahim, a retired judge of the Supreme Court and an eminent constitutional expert, that “the elevation to fill the vacant posts of removed judges during the emergency rule was illegal because their appointment was done without consultation with the lawful chief justice (Justice Iftikar Mohammad Chaudhry).”
It is also a settled law that when the initial order is void ab initio, then whole structure built thereon falls to the ground and such orders are incapable of satisfaction or confirmation and of no legal effect, whatsoever.
The void orders are even otherwise illegal, unconstitutional and extra-constitutional not existent in the eyes of law and there is no need or requirement for such orders to be necessarily struck down or repealed by way of filing any petition in the Supreme Court or by withdrawing/deleting the same from the Constitution by a two thirds majority of members of the parliament or even passing a resolution by a simple majority.
There are no two opinions that every civilised society has some basic and fundamental laws in the form of a constitution which cannot be regulated and governed by any other law, order or authority however high he may be placed. In other words, all laws, orders and authorities are subservient to the constitution and as such no authority is over and above the constitution, and that the constitution cannot and should not be kept in abeyance for any duration and reason as was done by General Pervez Musharraf who as a usurper seized power of the state and toppled the elected civilian government on Oct 12, 1999 and again on Nov 3, 2007, when he imposed martial law by way of emergency.
Besides, the emergency was not imposed by him under Article 232 of the Constitution on the grounds and reasons stated therein nor steps taken and order passed in accordance with the emergency provisions nor the proclamation of emergency revoked by a subsequent proclamation under Article 236 thereof.
The Nov 3 action by him in his capacity as Chief of Army Staff was, therefore, nothing but martial law against the President by resorting to the notional force of the army and that use of the force was also employed for packing up the most of superior judiciary, along with the Chief Justice being the main target, amending the Army Act for the trial of the civilians by martial law etc., although there was no actual war or insurrection, riot or rebellion. Nor the Army was in armed occupation of this country, when General Musharraf (now retired) imposed the martial law in the form of emergency.
In view of the above, the lawyers community will readily agree with Mr Fakhruddin G. Ibrahim that the coalition government could order security forces and police to end detention of the deposed chief justice and other judges ( which has now been done) and also provide required administrative support to the judges to enable them perform their duty without any let or hindrance. In the context of the executive orders and actions taken by Pervez Musharraf as Chief of the Army Staff, the Supreme Court Bar Association President Aitzaz Ahsan has rightly said that “the idea of parliamentary intervention would amount to an admission that a military commander has the right to amend the Constitution and arrest the judges. Tomorrow another military commander can impose emergency, amend the constitution, repeal the fundamental rights, abrogate parliament, arrest the judges and restore amended constitution and claim that it is now the supreme law.”
There is great weight in this argument as I recall a historical and important case of Hashmat Ali v Lt-Col Mohammad Shafi Durrani etc. (as reported in Cr. Orig.No. 5 of 1972 arising from a writ petition No. 71 of 1969) on this issue during Ayub Khan’s martial law period from a notice dated June 18, 1969, issued by the then Major-General A.O. Mitha, Martial Law Sub-Administrator HQ MLA Zone ‘A’ Lahore to Mr Justice Shamim Hussain Kadri and Mr Justice Nasim Hasan Shah of the then High Court of West Pakistan, Lahore for contempt of martial law.
On July 7, 1969 a petition under Article 123 of the constitution of 1962 was presented by a very senior advocate praying that Maj-General Mitha be given exemplary punishment for issuing the above notice to two honourable judges of High Court. Before the petition could be heard, a letter was also received from Lt-Gen M. Attiqur Rehman, the then Martial Law Administrator, Zone “A”, Lahore, regretting for that grave incident, promising to deal with the matter adequately through military channels and giving his assurances for not interfering with the normal working of the High Court.
Since no satisfactory action was taken by the military authorities, a notice was issued to Maj-Gen Mitha, who himself appeared before the High Court and tendered an unconditional apology.
Consequently a full bench of the then Lahore High Court comprising of Justices Mushtaq Hussain, Shamim Hussain Kadri and Nasim Hasan Shah, on March 7, 1972, convicted Major-Gen Mitha (who was also subsequently appointed Adjutant-General of the Army, one of the four senior most appointments on the staff of the GHQ and next only to the Commander-in-Chief) for contempt of court by simple imprisonment till the rising of the court.
The observations of the court in its landmark judgment are very significant and relevant on the rule of law, independence of judiciary and supremacy of the constitution and in the context of the present situation and of the demand of the lawyers’ movement in the country and their official bar associations, members of civil society, human rights organisations, leaders of various political parties in the country and abroad. It is quoted hereunder:-
“Courts reflect and exercise the sovereign power of the people of a state, entrusted to the latter by God Almighty Himself, and exercised by the former as representative of the latter, with the undeniable assurance inherent in the very system of Islamic democracy that these powers shall neither be curbed, nor taken away, and that the exercise thereof by the superior judiciary shall be without let or hindrance and shall enjoy the support, when needed, of the executive government of the country for the time being.
“The superior judiciary is possessed neither of the sword nor the purse and thrives only on the confidence that the people of a country have in it. If officers of a military junta were to be allowed to cow down superior courts, and interfere with the administration of justice by them, the confidence of the general people in readily obtaining even-handed justice from the superior courts without fear, would for all times be completely extinguished.
“Can, in such circumstances, any judiciary or for that matter any democratic government flourish even for a day? Law is the very basis of an organised society and that is what the state is. Interpretation of laws and dispensation of even-handed justice in accordance with these laws is a sine qua non for such a society.
“It is with this postulate in view that the judiciary in all civilised countries of the world and particularly in Pakistan, where the ultimate authority is derived from the Creator Himself, jealously guards its jurisdiction from inroads by all intruders, howsoever high they may have been placed. It is a scared duty which they have to perform for which every member of a superior court is under an oath which he takes on the assumption of his office.”
The observation in this notable judgment has clearly and beautifully refuted the claim and concept of the martial law authorities that “martial law is Supreme Law of the country at present and no other law or agency can question it.” The martial law itself is no law at all what to speak of it as the supreme law of the country when the martial law is proclaimed by any military dictator. The notion that ‘martial law’ exists by reason of the proclamation is a total delusion.
The writer is a Karachi-based Barrister-at-Law.
Salaries of justices
Superior court judges get 25pc raise:
President issues order
By Iftikhar A. Khan
ISLAMABAD, Aug 3: President General Pervez Musharraf on Friday increased the salary of judges of superior courts by 25 per cent. The president’s order shall be deemed to have taken effect from July 1, 2007.
The salary of the Chief Justice of Pakistan has been increased to Rs133,250 per month and of other judges of the apex court to Rs125,875 per month.
The salary of the Chief Justice of a high court has been raised from Rs85,900 to Rs123,500 and of other high court judges from Rs82,600 to Rs118,750 per month.
Last year judges of the superior courts got a 15 per cent raise.
In 2005, the salary of the Chief Justice had been fixed at Rs92,700 per month and of judges of the Supreme Court at Rs87,600. The Chief Justice of a high court was entitled to a salary of Rs85,900 and other judges were drawing Rs82,600 per month.
Apart from the salary, a judge of the Supreme Court is entitled to free residence, utility bills, an officially maintained car, a cook, a driver and a guard at his residence.
After retirement, a judge of the superior court is entitled to pension equivalent to 70 per cent of his salary in addition to 200 litres of petrol, 1,000 local phone calls, 1,000 electricity units, 12,000 cubic feet of gas and water charges. A retiring judge is also entitled to a car on depreciated value and a driver and a cook or an orderly at government expenses till the time of his death. The widow of a retired judge will get 50 per cent of the pension and after the widow’s death, sons of the judge who are less than 21 years of age will continue to draw the same amount. Unmarried daughters of a deceased judge will get the pension till their marriage.
The salary of the Chief Justice of Pakistan has progressively increased from Rs5,500 fixed in 1973. The first increase of Rs1,000 was made in 1981. Through a constitutional amendment order issued by General Ziaul Haq in 1985 the salary was increased to Rs7,900 with retrospective effect from July 1, 1983. The salary of the Chief justice was twice increased in 1991. It was first raised to Rs9,900 and then to Rs15,000. It was increased to Rs20,250 in 1994.
In 1995, the salaries of the judges of the Supreme Court were raised but the salary of the Chief Justice was not enhanced.
The Chief Justice’s salary was increased to Rs43,000 in 1998 and to Rs55,000 in 2002 effective from December 1, 2001.
The salary of the judges of the Supreme Court was fixed in 1973 at Rs5100, Chief Justices of the High Court at Rs5,000 and judges of the High Courts at Rs4,000.
Commenting on the raise, Supreme Court Bar Association President Munir A. Malik said it was not a favour. He said the government would fail to influence the judiciary by increasing salaries of the judges. “We have a new Supreme Court now,” he said.
