Govt cannot undo restoration order: SC

Judges demand clear-cut policy statement by Monday, inquiry into source of rumours.

ISLAMABAD:

The Supreme Court (SC) ruled on Friday that the federal government could not undo the restoration of the judiciary by withdrawing the prime minister’s executive order of March 16, 2009.

The 17-member full court, headed by Chief Justice of Pakistan Iftikhar Muhammad Chaudhry, also disclosed that it had credible information that suggested that the government was considering withdrawing the notification. The court warned that any such move will be tantamount to subversion of the Constitution and directed the prime minister, president and other state functionaries to refrain from steps that may violate Article 6 of the Constitution.

The apex court had taken suo motu notice of media reports that the government was contemplating withdrawing the order. “Come out with the truth [about] who is responsible for spreading such rumours as the SC has observed that media reports were based on facts,” the chief justice asked Attorney-General Maulvi Anwarul Haq. “A clear-cut policy statement must be submitted by Monday.”

He said the government should investigate the issue as it was its duty, otherwise the court will have to issue an order.

The court order states that the government was trying to pressurise the judiciary by spreading news that since the chief justice and other judges had been restored under an executive order that was yet to be sanctified by parliament, therefore all relevant members of the judiciary must take note of it, as a similar statement was made by the highest constitutional functionary in parliament.

It continued to state that all constitutional and state functionaries and administrative heads of the country should ensure that no such action was taken that could lead to the withdrawal of the executive order.

The court ordered the government or the prime minister to conduct an inquiry through an appropriate, responsible functionary and if it were true that no such action was being contemplated, then how had the news spread in the media and who was responsible for it. The court feels that it is the government’s primary duty to look into the matter.

The court also observed that the PM’s executive order had ceased to be effective after the verdict of July 31, 2009, and heads of all constitutional organs must abide by that verdict.

The attorney-general denied that the government intended to withdraw the judges’ restoration notification, adding that the news had come as a surprise for the government thus it had immediately issued a clarification.

He sought more time to reply to the SC for an explanation pertaining to the executive policy on the notification for restoration of superior courts’ judges. He also informed the court that he had told the PM’s principal secretary Nargis Sethi but she had replied that the prime minister was busy in some official engagements in Lahore and could not spare time to write the policy today (Friday).

At this point, Justice Jawad S Khawaja asked the AG whether he had met the prime minister. “Sorry, my lord, I could not meet him because he is in Lahore,” the AG replied.

Justice Sair Ali asked “Is the PM holding a meeting on the judges’ restoration issue?” The AG remained silent. Justice Sair again asked what sort of meeting the premier was attending that he couldn’t spare time for this issue.

Justice Khalilur Rehman Ramday said that the PM’s reluctance to give a statement was adding fuel to the fire and increasing the anxiety of SC judges as they were all protecting the Constitution.

He recalled that such rumours had surfaced before the November 3, 2007, emergency when Aitzaz Ahsan had informed the SC through a letter that an emergency-like situation was imminent. But the judges had not taken the warning seriously. “Unfortunately, November 3, 2007, became a black day for the judiciary,” he said.

Justice Javaid Iqbal observed that such rumours always surfaced when high-profile cases were being heard in Court Room No 1. “There is no need to fear. We are the custodians of democracy and nobody will be allowed to derail it,” Justice Javaid said.

Published in The Express Tribune, October 16th, 2010.