Restoration of deposed judges: the fourth option

It is being widely debated these days how the deposed judges can be restored. Three options have been proposed till now. One, the deposed judges can be restored through an executive order; two, the National Assembly can bring about a resolution with a simple majority on this issue; and three, the issue can be resolved by making some constitutional amendments, for which a two-thirds majority of the parliament is needed.

These are the three options doing the rounds. Yet there could be a fourth option – that of a referendum, as suggested by a renowned politician and former parliamentarian, Haji Saifullah Khan, in an exclusive interview with Channel 5. A veteran politician, Haji sahab is one of those few parliamentarians who not only understand the Constitution and the law very well, but have deep knowledge of parliamentary practices too.

Haji Saifullah said when the 160 million people of Pakistan would vote for the restoration of the deposed judges, the judiciary would not only be independent, it would actually be answerable to the people. The slogan suggested by him for the referendum’s campaign is: “Judiciary of the people, by the people and for the people.”

Giving a comprehensive view of the issue of the judges, Haji Saifullah in his interview said that the issue of the deposed judges had to be seen in its historical context. Though many renowned judges and lawyers like Aitzaz Ahsan are of the view that the issue can be settled through an executive order, it is not so simple. This was amply demonstrated when Prime Minister Gillani issued an executive order to release the judges and other senior lawyers who were being held in illegal detention. Although they were immediately released, yet it was seen that Justice Khalilur Rahman Ramday’s Islamabad residence was ransacked by the Supreme Court’s staff. This was done by the forces who wanted to prove a point that an executive order can be countered effectively. The prime minister then had to apologise for this dishonourable act. Thus if an executive order is passed to restore the pre-November 3 judiciary, it can easily be trampled upon by the forces who so desire.

Those who opine that this matter can be resolved through a resolution in the National Assembly are also in the wrong. Haji Saifullah said that a resolution’s status is only that of a mere ‘wish’. It holds no legal status other than that of being a simple request. It is left to the discretion of the competent authority then if they so wish to fulfil this request or not. A resolution does not hold any legal value as such.

Haji Saifullah said that the Provisional Constitutional Order (PCO) promulgated on November 3, 2007, was not validated by the judiciary or the parliament, thus it holds no constitutional worth. Making constitutional amendments to restore the deposed judges means validating the PCO, which was not only illegal but also unconstitutional.

The only way this issue can be resolved is through a referendum. Article 48, Section 6 of the Constitution gives the prime minister the power to ask for a referendum. The said Article says:
“If, at any time, the president, in his discretion, or on the advice of the prime minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the president may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either by ‘Yes’ or ‘No’.”

Haji Saifullah said that once the prime minister refers this matter to the president, the president may turn down the advice once but if it is forwarded to him again, the president does not have the power to refuse again. A referendum can then be held. According to Article 48, Section 7: “An act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum.”

Mr Saifullah said the question to be asked in the referendum should be worded as such:

“Do you agree that the emergency order and Provisional Constitutional Order (PCO), promulgated by Pervez Musharraf on November 3, 2007, be repealed in their entirety and the Supreme Court, headed by Chief Justice Iftikhar Mohammad Chaudhry including all High Courts be reinstated as of November 2, 2007, with retrospective effect except those justices who have retired since then after completing their constitutional tenure? Further all decisions and orders passed during the intervening period be validated except such orders or decisions which may have a direct impact upon the personal interests of the members of the nominated judiciary or Pervez Musharraf himself.
Those agreeing with the question may mark YES and those disagreeing may mark NO to the question above.”

It is hoped that the concerned parties would take note of this fourth option for the restoration of the deposed judges – an option that has been presented for the first time.


your observation about the comunity in pakistan is very good your source of knowldge shown very good but i am sorry to say this in pakistan all comunity have same rights if chritians are killed by differnt incidents muslims are also not save they killed in it thier mousque
shiya brothers are main power of pakistan they are not domint mostaly shia and sunnies have blood relation example are much more syed comunities have blood relation mostaly are shia and sunni live to gather
hindu have also rights 2 youngers are in pak miltary from hindu bradari
i am just want to say now days condition no person either he muslim or non-muslim not save
we can,t say any thing at the basic of some incidents like gojra and chkwal
if non-muslim face these all type of problems muslims are too not save even in thier relgious place

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