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Confusion over move to restore judges

ISLAMABAD: A day after the Pakistan People’s Party and the Pakistan Muslim League (N) announced they would restore the judges dismissed in the November 3, 2007 imposition of Emergency rule, there is confusion about how exactly they will achieve this.

In their “Murree Declaration”, the two parties said they would restore the judiciary through a resolution in the National Assembly. Such a resolution would require only a simple majority, which the PPP and the PML(N) together have.

The judges were removed under the Provisional Constitutional Order that retired General Pervez Musharraf imposed on November 3, as he declared Emergency rule.

Those judges who refused to be sworn in under the PCO or were not invited to do so stood automatically dismissed. The PCO was later given legal cover by the Supreme Court, and all actions under it incorporated into the Constitution.

For this reason, some legal experts believe that trying to reverse the judges dismissal through a resolution in the National Assembly would tantamount to making a constitutional amendment through a resolution. It could set a dangerous precedent, opening the doors for making other changes to the Constitution through this expedient.

Constitutional amendments need the backing of two-thirds of the members at a joint sitting of both house of Parliament — the National Assembly and the Senate.

Attorney-General Malik Qayyum said on Monday that it would be against the Constitution to restore the judiciary through a National Assembly resolution, and that it would be challenged in court.

General Musharraf, who was closeted in a meeting with his top legal advisors, was apparently told that there was no other way to reinstate the judges save by a constitutional amendment in a joint sitting of both houses, for which the PPP and PML(N) do not have a two-thirds majority.

But lawyers leading the struggle for the restoration of the judges are saying seeking a constitutional amendment for the restoration of the judges would be to give sanctity to the “illegal” PCO.

The argument in favour of restoration of judges through an executive order is that General Musharraf imposed the PCO not as President, but as the Chief of Army Staff, who has no powers to make such changes.

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