To Judge or not to Judge

Someone sent me an email from a nonexistent email address inviting me to read the documents that could be downloaded from the url http://const.countpakistan.com

I did download the 111 page document which contained the proclamation of emergency of 3rd November, 2007, the Provisional constitutional order issued by the chief of army staff and the Supreme Court judgment on a number of petitions related to it.

I have the following comments to make:

1. As soon as the constitution was put in abeyance by the chief of army staff and PCO was issued, the presidency also became nonfunctional and he (who also held the office of president) ceased to be the president and will remain a non-president until restored to Office by the Parliament. His recognition by alien governments has no meaning. Similarly the use of a non-president to administer oaths of office to elected representatives does not reinstate him as President.

2. If the non-president became president again on withdrawal of the PCO, then by default all the judges deposed as a consequence of the PCO and other orders issued under it also stood restored to office.

3. The old notion of "the will or word of the sovereign is law" is no longer valid. The present day democratic doctrine is that "a proclaimed law is not a law until accepted by the people through their elected representatives or by a referendum." Any court that bases its judgment on unaccepted law acts against the spirit of justice and the judgment is not even worth the paper on which it is written. It is interesting that the judgment in question quotes in length from judgments and writings of Indian, British and American jurists and authors but does not make any reference to Islamic traditions, nor does it contain a single phrase of original wisdom.

4. The best way to resolve the present constitutional and judicial crisis in Pakistan is to hold a referendum by which the people can endorse or reject the presidential, legal and judicial actions of the intervening period.