The Pakistani lawyers’ movement for the restoration of the superior court judges who were dismissed on the 3rd of November, 2007 with the imposition of “emergency” by president and general Pervez Musharraf has the support of the majority of people in Pakistan. But unfortunately the case has not been presented by the lawyers in a manner that could be understood by a man of average intelligence. Here is an attempt to do so:
As a member of the Pakistani armed forces General Pervez Musharraf is supposed to have taken the following oath as prescribed in the Constitution of Pakistan:
“I,__________________________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law.”
As the president of Pakistan he is supposed to have taken the following oath:
“I,__________________________, do solemnly swear that I am a Muslim and believe in the Unity and Oneness of Almighty Allah, the Books of Allah, the Holy Quran being the last of them, the Prophethood of Muhammad (peace be upon him) as the last of the Prophets and that there can be no Prophet after him, the Day of Judgment, and all the requirements and teachings of the Holy Quran and Sunnah:
That I will bear true faith and allegiance to Pakistan:
That, as President of Pakistan, I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan:
That I will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan:
That I will not allow my personal interest to influence my official conduct or my official decisions:
That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan:
That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will:
And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as President of Pakistan, except as may be required for the due discharge of my duties as President.”
On the 3rd Nov, 2007 he signed a proclamation containing the following the folloeing words:
“And whereas the situation has been reviewed in meetings with the Prime Minister, Governors of all four Provinces, and with Chairman Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army;
Now, therefore, in pursuance of the deliberations and decisions of the said meetings, I, General Pervez Musharraf, Chief of the Army Staff, proclaim emergency throughout Pakistan.
I hereby order and proclaim that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance.
This Proclamation shall come into force at once.”
Clause 6 of the Constitution of the Islamic Republic of Pakistan states:
“6. High treason.-(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.
(3) 1[Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.
It is obvious that on signing of the proclamation of "emergency" Mr. Musharraf and his associates mentioned in it had reneged on their oaths of office to uphold the Contitution and had committed acts which disqualified them from holding any public or military office in Pakistan and they all stood stripped of their ranks and offices.
It follows that the pursuant actions of Mr. Musharraf as either President or Chief of Army Staff were farcical and of no legal consequence. The mutilation of the Constitution carried out in the PCO is too vulgar to be elaborated here. Even if they escape punishment for their actions by guile or threat of violence or the support of aliens, history will not forgive them.
Judges of Supreme and High courts of Pakistan had taken the following oath of office as per the Constitution:
“I,__________________________, do solemnly swear that I will bear true faith and allegiance to Pakistan:
That, as Chief Justice of Pakistan (or a Judge of the Supreme Court of Pakistan or Chief Justice or a Judge of the High Court for the Province or Provinces of .......................), I will discharge my duties, and perform my functions, honestly, to the best of my ability, and faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law:
That I will abide by the code of conduct issued by the Supreme Judicial Council:
That I will not allow my personal interest to influence my official conduct or my official decisions:That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan:
And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will:”
On 3rd November, 2007 and the following days a number of judges of Supreme and high courts took the following oath:
"I_________________, do solemnly swear that I will bear true faith and allegiance to Pakistan :
That, as Chief Justice of Pakistan or a Judge of Supreme Court of Pakistan, the Chief Justice of the Federal Shariat Court or a Judge of the Federal Shariat Court, or the Chief Justice or a Judge of the High Court for the Province of-----), I will discharge my duties and perform my functions honestly and to the best of my ability and faithfully in accordance with the Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No. 1 of 2007 and the law.
That I will abide by the provisions of the Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No. 1 of 2007, and the Code of Conduct issued by the Supreme Judicial Council :
That I will not allow my personal interest to influence my official conduct or my official decision :
And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will".
Quite obviously, these judges had reneged on their oath of allegiance to the Constitution of the Islamic Republic of Pakistan and become ineligible for judicial duties as they fell under the purview of Article 6 of the Constitution.
The judges who refused to take the new oath obviously are still bound by their original constitutional oaths of office.
If the PCO judges had taken the treacherous oath intentionally, knowing the contents of the documents mentioned in the oath then there is nothing to be said in their favor. But if they were tricked or coerced into taking that oath, they should come clean and find a way to renounce or revoke that oath. I would not venture to guess whether the legal community of Pakistan will accept their apology, but at least they can put their conscience to rest.
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