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In interviews telecast in "AAJ KAMRAN
KHAN KE SAATH" on Geo TV on the 29th of April, 2008,
eminent constitutional experts, Mr. Abdul Hafeez Pirzada and
Mr. Khalid Anwar, expressed the view that the deposed judges
cannot be restored by merely passing a resolution in Parliament,
followed by an Executive Order to facilitate the resumption
of judicial functions by them.
The bone of contention in this legal debate
is the Short Order dated 23-11-2007 and Judgment dated 13-2-2008
of the Supreme Court (SC), headed by Mr. Justice Dogar. According
to the legal advisors of the President, the decisions have
purportedly superseded/overruled the Short Order of the SC,
headed by the de jure (legal in law) Chief Justice Iftikhar
Chaudhry (CJP), dated 3-11-2007 and validated the Proclamation
of Emergency (PE), PCO and Oath of Office (Judges) Order,
2007 (Oath of Judges Order, 2007) and granted the President
the power to amend the Constitution.
In the earlier Order of de jure CJP, the SC had declared and
directed, in relevant part, that no judge of the SC or the
High Court including the Chief Justices shall take oath under
PCO or any other extra-constitutional steps. In this connection
the Court held that : "any further appointment of the
CJP and the Superior Court Judges under new developments shall
be unlawful and without any jurisdiction."
The SC, headed by Justice Dogar, held that the
Judges of the Superior Courts who were not given oath (to
discharge duties and perform functions in accordance with
the PE, the PCO and the law), under the Oath of Judges Order,
2007, have ceased to hold office on the 3-11-2007 and their
cases cannot be re-opened being hit by the doctrine of past
and closed transactions.
Mr. Abdul Hafeez Pirzada is of the opinion that
: (i) a Constitutional Amendment is needed in order to restore
the deposed Judges of the Superior Courts; (ii) in view of
the doctrine of trichotomy of powers, there can be no legislation
by simple resolution of the National Assembly; and (iii) the
Executive cannot "undo" the decisions of a de jure
or de facto SC, by simple resolution and/or Executive Order.
With respect to his first contention, Mr. Pirzada has assumed,
without foundation, that the impugned amendments to the Constitution,
in the period of extra-constitutional deviation, are a fait
accompli and therefore is of the view that another constitutional
amendment is needed to restore the deposed Judges.
It is important to keep in mind that Article
239 of the Constitution provides the one and only method of
amending the Supreme Law. Parliament is the sole authority
that can make amendments to the Constitution by a 2/3 majority
of the total membership of both Houses of the Majlis-e-Shoora.
No other person, howsoever high, can arrogate to himself the
power to amend the Constitution.
Furthermore, if the SC of Pakistan cannot amend
the Constitution, it is not legally or constitutionally possible
for it to delegate such power to any other holder of high
office and/or validate the amendments to the Constitution
purported to have been made by him. This unfortunately is
exactly what the SC, headed by Mr. Justice Dogar, perversely
purported to do in its decisions.
The PE holds the Constitution in abeyance and
the PCO, in effect, affirms its own primacy in the Governance
of the Country. The acceptance of such a legally untenable
position would also have the effect of legitimizing the period
of extra-constitutional deviation and all the acts of the
usurper in the said period.
With respect to Mr. Pirzada's contention that
there can be no legislation by simple resolution, it is important
to restate that the resolution is intended to be passed in
the National Assembly, only as an expression of the will of
the people. The resolution would become the moral basis for
restoring the de jure Judges, by means, of an Executive Order.
It is also important to reiterate that the proposed
resolution and/or Executive Order are not intended to override
the decisions of the Dogar Court. As discussed later in this
Article, the proceedings in the matter before the said Judges
were a nullity in law and their said Order and Judgment were
without jurisdiction, mala fide, in law and fact, and of no
legal effect (i.e. not existing in the eye of the law). Therefore,
there is no need to secure their annulment.
Furthermore, the resolution and Executive Order
are not a substitute to legislation. In the example given
by Mr. Pirzada, in 1993, the PML(N) government in the Punjab
attempted to appoint an Administrator for Lahore through a
resolution passed by both Houses of Majlis-e-Shoora. The High
Court of Lahore frustrated the attempt.
However, the facts of the present case are distinguishable.
Superior Court Judges are not being appointed by virtue of
the proposed resolution. As stated above, the only purpose
of the resolution is to morally back the Executive in restoring
the de jure Judges who were unconstitutionally removed, in
violation of Article 209 of the Constitution.
In support of his contention Mr. Khalid Anwar
enunciated the legal proposition that an Order of a Court
or its judicial interpretation cannot simply be overruled
by an Executive Order. He emphasized that although he had
always opposed the use of the "Doctrine of Necessity",
superseding such a Judgment by way of an Executive Order would
establish a very dangerous precedent for the future.
The contentions of both the experts in the matter,
beg the question at hand. One cannot just state general propositions
of law out of context and without referring to the antecedent
facts and circumstances, without reference to the admittedly
blatant unconstitutional measures taken by a usurper.
The three (3) core issues, with respect to the
modalities for restoration of the judges, are :
(i) whether the proceedings before the SC, headed
by Justice Dogar, were coram non judice (i.e. not before a
Court validly appointed and constituted under the Constitution)
? and, if so,
What is the legal effect of its decisions in the matter?
And, in any event,
(ii) whether the said decisions by the SC are without jurisdiction
(i.e. the subject matter of the dispute was outside the field
within which the court is competent to act) and mala fide?
If the answer to issues (1) and (2) are in the
affirmative,
(iii) whether the Executive can simply ignore
the Order of the SC, as being a nullity in law and restore
the de jure judges by an Executive Order ?
The legal proposition presented by Mr. Anwar presupposes an
Order, decided rightly or wrongly, passed in proceedings 'coram
judice' (literally before a 'judge') or 'before a person reputed
to hold the office of a judge', under the De Facto Doctrine
(judge holding office in fact).
In the well-known treatise on administrative
law by Wade and Forsyth the de facto doctrine has been described
thus :
"In one class of cases there is a long
standing doctrine that collateral challenge is not to be allowed;
where there is some unknown flaw in the appointment or authority
of some officer or judge. The act of the officer or judge
may be held to be valid in law even though his own appointment
is invalid and in truth he has no power at all".
If so, the Order and/or judicial interpretation
cannot be set at naught merely by passing a simple resolution
in Parliament and/or an Executive Order.
However, when an Order is made or judicial interpretation
is given in proceedings 'coram non judice', (literally 'not
before a judge'') or 'before a person who knows that he is
not a judge', it is void ab initio, due to lack of inherent
power.
A forum, such as one consisting of persons purporting
to hold the office of judge in violation of the Short Order
of the CJP dated 3-11-2007 and by virtue of having taken oath
under the PCO, an act mala fide in law and fact, is not a
constitutionally constituted judicial forum and its proceedings
are 'coram non judice,' a nullity in the eye of the law.
The admitted position, under the Constitution
and precedents of the SC, is that a judge can only be removed
from office under the provisions of Article 209 of the Constitution
by way of a reference to the Supreme Judicial Council. However,
a Judge of the Superior Court ceases to hold office of a Judge,
by virtue of having taken an oath which is not compatible
with holding the office of a Judge under the Constitution.
Amnon Rubinstein in his treatise on "Jurisdiction
and Illegality" states at page 206 :
"A judge de facto is one acting with colour
of right and who is regarded as, and has the reputation of,
exercising the judicial function he assumes; he differs …..from
a mere usurper of an office who undertakes to act without
any colour of right……[ 1 ] In order that there may
be a de facto judge, there must be an office which the law
recognizes, and when a court has no legal existence there
can be no judge thereof, either de jure or de facto. [ 2 ]
There cannot be a de facto judge when there is a de jure judge
in the actual performance of the duties of the office."
There is no office of Judge of a Superior Court,
under the Constitution, that gives authority to or is compatible
with a person who purports to take oath as a Judge under a
PCO. Therefore one can conclude that there is no such office
of Judge which the Constitution and law recognizes and when
a court has no existence there can be no Judge thereof either
de jure or de facto.
Of course, there was no de jure Judge actually
performing duties after the commencement in the period of
extra-constitutional deviation. In this case, as the non functional
de jure Judges of the Superior Courts were mala fidely, unconstitutionally
and illegally detained in their homes and restrained from
performing judicial functions, without any order, legal or
otherwise, the "incumbent Judges" cannot take advantage
of the wrongful action and their complicity therewith, in
order to be able to claim that they are de facto Judges.
The position of PCO Judges in 2000 was protected
under Article 270C of the Constitution. However, as of today
and in the absence of a further valid amendment to Article
270C, by the Parliament, as mandated by Article 239, the purported
"incumbent Judges", who held the office of de jure
Judges before 3-11-2007, but took oath under the Oath of Judges
Order, 2007, are deemed to have abdicated and/or relinquished
their office as Judges under the Constitution.
In a recent judgment, in the case Coppard v.
C & E Commissioners, the Court of Appeals in England observed
that :
"the de facto doctrine cannot validate the acts, nor
therefore ratify the authority, of a person who, though believed
by the world to be a judge of the court in which he sits,
knows that he is not. We accept, on well-known principles,
that a person who knows he lacks authority includes a person
who has shut his eyes to that fact when it is obvious, but
not a person who has simply neglected to find it out. We will
call such a person a usurper." [(2003) 3 AER 351 at p.
356].
In the light of a Coppard case, the persons purporting to
hold the office of Superior Court Judges today do not even
qualify as "De facto Judges", in the eye of the
law. In the circumstances, their good faith orders, judgments
and decrees, certainly excluding the impugned Short Order
and Judgment in this matter, will need to be validated by
the Parliament.
The Coppard case has added a wrinkle to the
principles governing that De facto Doctrine. In the case of
a person who has taken oath under the PCO, in violation of
the Short Order of the CJP dated 3-11-2007, his lack of authority
is obvious to him, but he shuts his eyes to the fact. In the
circumstances, neither his office nor his acts are protected.
It seems that the English case has identified a new category
of "judicial usurpers", in addition to military
dictators, on the cutting edge of constitutional law in Pakistan.
The decisions of the Dogar Court are, on the
face of it, unconstitutional, as they validate the act of
holding of the constitution in abeyance, in violation of Article
6.
Article 209 of the Constitution provides the
only constitutionally mandated procedure for the removal of
a judge of the Superior Courts. A reference against a judge
can only be inquired into by the Supreme Judicial Council
and the SC has no jurisdiction in the matter. The Order validating
the removal of the de jure judges is therefore one passed'
without jurisdiction'.
This has been the consistent position of the
SC in the Zafar Ali Shah case of 2000 and even in the Short
Order of the Dogar Court. However, the SC in both cases declared
that the cases of the de jure Judges cannot be reopened, being
hit by the past and closed transaction. I am sure the double
standard involved must be obvious to one and all.
The "incumbent Judges" of the SC also
sat in judgment in their own cause. They validated, without
due process of law, the removal of the 60 Judges, who did
not take oath or were not called upon to take oath. In so
doing, they were, in fact, purporting to legitimize their
own oath under the PCO. The Order is 'mala fide' on this count
as well.
In Jamal Shah's (PLD 1966 SC 1), it was observed
that an act or order, without jurisdiction is void and a nullity,
that is, it is of no legal effect and has no existence in
the eye of the law. And in Ronaq Ali's case (PLD 1973 SC 236),
the Court reiterated the proposition that "where an inferior
tribunal or Court has acted wholly without jurisdiction……(it)
has no legal effect whatsoever."
The Executive can simply ignore it and take
whatever remedial steps it deems necessary in order to restore
the status quo ante i.e., restore the non-functional de jure
judges to their rightful position, as of the 2-11-2007.
It was further held in Mahmud Alam's case (PLD
1970 LAHORE 6 at page 26) that : "…….an order
which is a nullity, has simply to be ignored and proceedings
need not be initiated to get it annulled. In case, however,
the order or action which is nullity is to be enforced against
the person affected by it, that person at that time will be
entitled to challenge the same on the basis of it being a
nullity."
Furthermore, the SC in Muhammad Zafar Bukhari's case (PLD
1997 SC 351 at page 365) quoted with approval the ruling in
R. v. Hollis 1819, 2 Stark. 536 wherein it was held that "a
person cannot be found guilty of disobedience to an order
of justices if the order was made in a matter in which they
has no jurisdiction".
In this connection twenty one (21) former judges
of the Superior Courts, including five (5) Chief Justices
of the SC issued a joint statement affirming that :
(a) the removal of judges under the Emergency
Decree of the 3-11-2007 was unconstitutional and in violation
of Article 209 of the Constitution which provides that judges
of the superior courts can only be removed by reference to
the Supreme Judicial Council; and
(b) only a resolution, passed by simple majority,
by the National Assembly would be more than sufficient backing
for the Executive to take immediate obligatory measures under
Article 5 and 190 of the Constitution to reinstate the deposed
judges.
In facilitating the resumption of judicial functions
by the de jure judges, by means only of an Executive Order,
rather than as part of a constitutional package, the Parliament
will, in fact, set a salutary and seminal precedent for the
future. For the first time, in the long history of martial
law and/or extra-constitutional regimes in Pakistan, it will
have repudiated the attempt by a military dictator to abrogate,
subvert and/or hold the Constitution in abeyance.
It is absolutely imperative, if we are to end, once and for
all, the cycle of successive Martial Laws, PEs and PCOs and
subsequent ratification, as a fait accompli, that this time
round the PE and PCO, the Oath of Judge Order, 2007 and impugned
amendments should not be validated by the Parliament.
The new parliamentarians can thus seize the
moment and make a niche for themselves in the annals of the
constitutional history of Pakistan.
(Zain Sheikh is an Advocate of the Supreme
Court)
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