A Statement by the Asian Human Rights Commission
A few suggestions to remove ambiguities from the AHRC
History is being made in the National Assembly of Pakistan. The Speaker was elected and the debates have already begun. True to the pledge given to the voters to restore the chief justice and all the other judges who were ousted, a resolution has already been drafted and is being discussed now. The newspapers have published this draft and we reproduce it below in its entirety with just a few suggestions for the strengthening of the resolution and the removal of any ambiguity regarding the intention of the legislature with regard to the restoration of the Constitution of the Republic of Pakistan as it stood in November 2007; that is before the Provisional Constitutional Order (PCO) was promulgated.
The few suggestions for additions are given in bold italics. The remainder of the text is the original draft resolution. The amendments refer to specifying the Constitution of Pakistan as referring to the Constitution as it stood on November 2, 2007 so that there will be no ambiguity on this important matter. The reference to the constitution of the Islamic Republic of Pakistan should clearly be distinguished from any reference to the Provisional Constitutional Order. The further amendments suggestions recommended are regarding the same issue and thus refer to the mandate given by the people of Pakistan on February 18, 2008 at the elections by also, reference to the oath taken by the members of the National Assembly on March 17, 2008 to preserve, protect and defend the constitution the country as it stood on November 2, 2007. Further, regarding the final paragraph calling on the federal government to perform its obligation under article 190 of the Constitution refers to the chief justice and all judges of the Supreme Court who were illegally restrained or purportedly removed on or after November 3, 2007. As these matters are of vital importance no ambiguities should be allowed to remain on these issues.
The draft resolution reads as: “The National Assembly of Pakistan.
Whereas the elected representatives of the people of the Islamic Republic of Pakistan acknowledges and honour the long and arduous struggle for the return to democracy and rule of law by the ordinary citizens of our beloved country.
“And whereas, we pay tribute to Shaheed Mohtarma Benazir Bhutto and thousands of brave members of the legal fraternity, the civil society, the media and political activists across the country who made the ultimate sacrifices and laid down their lives or suffered imprisonment for the cause of restoration of parliamentary democracy and the rule of law in Pakistan. We shall not let their sacrifices go in vain.
“And whereas, this assembly is mindful that the foundation of democracy cannot survive without a return to the rule of law. We are mindful that the rule of law cannot survive the rule of the gun unless we have an independent judiciary. And, we are cognizant that we shall never have an independent judiciary if judges of the superior courts of this country are imprisoned at the whims of a lone individual.
“And whereas, we as members of the National Assembly have taken oath to preserve, protect and defend the Constitution of the Islamic Republic of Pakistan as it stood on 2nd November 2007 and we shall not waive from this oath.
“And whereas, Article 209(7) of the Constitution provides in no uncertain terms that ‘a judge of the Supreme Court or of a high court shall not be removed from office except as provided in this article’.
“Therefore, as opined unanimously by leading former Chief Justices and Judges of the Supreme Court of Pakistan, actions of November 3, 2007, seeking to remove and restrain the Chief Justices and Judges of the Supreme Court of Pakistan and High Courts is void ab initio and has no sanctity in law.
“We, therefore, bound by the mandate given by the people of Pakistan on February 18, 2008 and the oath taken by us on 17th March 2008 to preserve, protect and defend the Constitution of the Islamic Republic of Pakistan as it stood on 2nd November 2007, do hereby RESOLVE and call upon the Federal Government to remove all illegal restrictions placed on the Chief Justices and all Judges of the Supreme Court of Pakistan and High Courts on and after November 3, 3007 with immediate effect.
“History shall not forgive those, who even now, may seek to obstruct the irreversible path to constitutional rule in our great country.
“Therefore, we further RESOLVE, and call upon the Federal Government to perform its obligation under Article 190 of the Constitution and act in aid of the Chief Justices and all Judges of the Supreme Courts who were illegally restrained or purportedly removed on and after November 3, 2007, so that they may resume their judicial functions in accordance with the provisions of the Constitution.
This is a moment of pride and glory for the National Assembly of Pakistan, for the lawyers and judges of Pakistan and above all the voters of the Pakistan. Perhaps in the time to come among all the acts that have been done by the National Assembly of the country this act of the restoration of the ousted judges will be particularly remembered. Such resolutions are not just resolutions in the ordinary sense but in fact covenants that power makes with the people. Therefore the National Assembly should avoid all the possibilities of any misinterpretation of their intentions by forces that may want to undermine this resolution. Although the suggestions we have made are few they will add to the strength of his draft resolution.