Court's epic journey

The PCO Judges Case has left little discretion with the government and has all but declared the Musharraf treason trial to be a legal imperative. One, the court has reiterated the obvious, that Article 6 is a functional part of the Constitution meant to deter and penalise usurpers. It has further employed canons of textual interpretation to assert that if a usurper is afforded indemnity by introducing a new provision within the Constitution – as was done in cases of Zia and Musharraf through Articles 270-A and –AA, respectively – in the presence of Article 6, the latter is rendered redundant and meaningless. Thus, it concludes that "so long as Article 6 is part of the Constitution, the Parliament is debarred from even condoning unconstitutional acts of a usurper..."

Two, the court has overruled and limited the doctrine of condonation prescribed in the Asma Jillani Case, which was abused to afford amnesty to Yahya Khan and successive military dictators. Under various categories of acts that were condoned under the Asma Jillani doctrine included (i) all transactions which were past and closed, (ii) all acts and legislative measure which could have been made under the abrogated constitution, (iii) all acts that promoted public good, and (iv) all acts required to be done for the orderly running of the state. The categories were so overbroad that they ended up encompassing and condoning all acts of the usurper. The PCO Judges Case has struck down three categories of the prior doctrine by holding that "only those acts which were required to be done for the ordinary orderly running of the state could be protected."

Three, the court has clarified the prevailing understanding of past and closed transactions (also mistakenly quoted by Attorney General Khosa repeatedly to assert that the NRO's being declared unconstitutional is of no consequence to President Zardari), by stating that "only such past and closed transactions could have been protected which

were otherwise not illegal at the relevant time." Given that Musharraf's actions of Nov 3 were "unconstitutional, illegal and void ab initio, the principle of past and closed transaction was not attracted."

In view of (i) the unequivocal declaration that Musharraf is a usurper liable under Article 6, (ii) the doctrine of limited powers that disables the Supreme Court or any other state institution from validating unconstitutional acts, (iii) the structure of the Constitution that does not allow for introduction of an indemnity clause in the presence of Article 6, and (iv) the fact that Musharraf's actions neither attract the doctrine of condonation nor that of past and closed transactions, Musharraf can only escape a treason trial if the Parliament amends the Constitution with a two-third majority, not only to introduce a new indemnity provision but also to repeal Article 6. Alternatively, in the event that Musharraf is tried for his crimes under Article 6 and is found guilty, the president can still pardon him under Article 45 of the Constitution. But after the detailed judgment, there is no room left for the PPP government's blithering or inaction.

The ruling has also sealed the fate of the PCO judges. While any judge claiming that he had sworn an oath under Musharraf's Nov 3 PCO not realising that such oath was in violation of the oath already sworn under the Constitution, would be pushing the limits of naiveté. But the Supreme Court had passed a restraining order in the Wajihuddin Ahmed Case prohibiting judges of the superior courts from swearing a fresh oath under any PCO. The detailed ruling has clarified that (i) the restraining order was faxed to all High Courts and there is ample evidence that all judges had notice anyway due to its wide publicity in the press, and (ii) no notice was required to be served on sitting judges during the proceedings of the PCO Judges Case, under existing court precedents, such as the Al Jihad Case, in which it was decided that their cases were to be forwarded to the Supreme Judicial Council.

Consequently, all PCO judges of the Supreme Court and the High Courts have been held to "have rendered themselves liable for consequences under the Constitution for their disobedience" of the restraining order issued by the Supreme Court on Nov 3. The PCO judges need not unabashedly wait for a sign from God to tender their resignations: it has been found that they violated the Constitution and the express direction of the Supreme Court; they have sacrificed their integrity by stepping on the wrong side of history against the law and public opinion; and they have lost the respect of their peers in the bench and the bar. But in the event that they still don't find in them the ability to preserve their dignity, they need to be shown the door by the Supreme Judicial Council.

Finally, in relation to the validity of ordinances approved by Musharraf prior to Nov 3 or thereafter, including the NRO, which weren't presented before the Parliament, some analysts have observed that according to the detailed ruling all such instruments have expired in accordance with their prescribed time period under Articles 89 and 128 of the Constitution. Thus in order to protect any benefits derived under the NRO (or other such ordinances) after its constitutionally prescribed shelf life of four months, the Parliament must approve these laws and give them retrospective effect, or else any benefits derived after the original four month period will lapse. This appears to be a mistaken interpretation of the ruling as (i) the Parliament has an inherent right to approve any law and give it retrospective effect without the court's blessing, and (ii) the court can either declare a law valid or invalid, but not conditionally valid only for the purpose of approval by the Parliament, but not as a source of rights and obligations for people.

The court has held that the pending ordinances were deemed permanent by the Parliament and thus not reconsidered. But now that the court has clarified the correct legal position, the laws will continue to be deemed valid for a period of four months from the date of the ruling during which Parliament can approve or reject them. However, even if the NRO is approved by the Parliament, it would remain subject to judicial review. So, notwithstanding approval by Parliament, once the court considers the validity of the NRO and finds it ultra vires of the fundamental principles enshrined in the Constitution, the law could be declared void ab initio and thus the question of anyone having legitimately derived any benefits even in the initial four-month period would not arise. Should this be the outcome of the NRO's judicial review (as it should, the NRO being the most rotten piece of legislation Pakistan has ever suffered), any benefits derived by President Zardari under the NRO will automatically stand extinguished.

If a question is then brought before the court regarding the eligibility of Zardari as president, there will be two approaches to consider. One, to the extent that without the NRO Zardari was ineligible to qualify as a candidate for the president's office under Article 41, read together with Articles 62 and 63, it could be held that such fundamental ineligibility cannot be cured merely because Zardari was successfully elected. And, two, in view of Article 47 (the president's removal through impeachment) read together with Article 248 (protections offered to the president), the court could hold that it is the spirit of the Constitution that once elected, a president may only be removed by the Parliament through the impeachment process, or else there would be an indirect way to undermine the security of a tenure constitutionally guaranteed to the president. These remain questions of constitutional interpretation that the apex court will need to address in due course.



(Concluded)

The writer is a lawyer based in Islamabad. Email: sattar@post. harvard.edu