I am really surprised that how many politicians, many lawyers (even past judges) and many journalists are doing contempt of court and still getting away with it?
Is it not obvious that after 3rd of Nov emergency, Supreme Court gave it legal cover so to call that act of declaring emergency illegal and unconstitutional is certainly contempt of court and I believe that Supreme Court should take notice of such people whoever they maybe, and punish them. As for if judges can be restored using resolution or constitutional amendment, I think that PPP in their thinking is right while PML(N) is completely wrong. Let see how this can be explained.
Let say that if Chief Justice, President, Prime minister, Minister or anyone in the country has dispute on certain issue with someone, then where they can go to resolve their dispute?
It is obvious that they would have to go to Court and judges in court have right to resolve that dispute. Once judge resolve a dispute than that becomes legal regardless of judge made mistake or gave a decision wrongly (intentionally or unintentionally). For instance, President sent reference on CJ Iftikhar to SJC but Supreme Court decided that SJC should not investigate CJ, they did not even gave any reason but since they gave verdict, it became legal (however wrong or right the decision was).
On 3rd Nov, President changed the Supreme Court composition of judges. Right or wrong of that change can only be challenged in Supreme Court and only Supreme Court could have decided it, and Supreme Court did decided that it was legal, thus gave the decision that whatever step Musharraf took on 3rd of Nov was legal, hence now nothing can be done about that.
Confusion is arising because normally head of state in democracy could not have done that easily and if they had done then most likely armed forces would not have accepted that and would have intervened. In old days, whenever ruler wanted to they use to do that, change the judiciary whenever they wanted to. Fortunately or unfortunately, when Musharraf took the step, Armed forces did not interfered neither anyone who had any power to challenge that step did not interfered, establishment accepted it and later new judges gave the step legal cover, so emergency step taken by President Musharraf became legal.
If Supreme court judges had not given legal cover to 3rd November step than only that step would have been illegal and could be challenged. Such step by army chief is not stoppable as any action by army chief is more or less revolution in the country and only a power that is stronger than army could stop that, for instance mass support of public that includes lower officers and jawans of armed forces, but in Pakistan that there is no power stronger than army.
This support by mass can only happen if politicians are respectable and masses love them and loathe armed forces or any other powers going against them, But Pakistani politicians are mostly crooks and thugs, so people may vote them because there is no choice, but most of people do not care for them.
Now, if parliament brings resolution to restore judges than judges in office would have all right and would surely call armed forces for support and stop illegal means to depose them or replace them, as that restoring would be illegal. Certainly judges can be restored but they can only get their job back by legal means (as they have lost their job at present) and that legal means would be proper appointment that only President (with advice of Prime Minister and CJ) could do. Nevertheless, for Ch Iftikhar to replace CJ Doger would be completely illegal and I believe that Doger would have all right to contest Iftikhar appointment as CJ as he would lose his office that he legally holds.
If anyone thinks that restoration would be legal, especially restoration of Ch Iftikhar as CJ, then they could not decide just because they believe so, but they have to go to court and ask court to decide (that is asking Doger that he is holding post illegally and it would be unlikely that he would accept that).
Anyhow, there is another big problem by calling, accepting or trying to make present judiciary illegal. That is we cannot chose one thing right and other wrong, for instance, Supreme Court decision of 3rd Nov wrong and all other cases decided by Supreme Court and other Pakistani courts as right. Thus, if judges of this judiciary are holding their office illegally than result of all cases, irrespectively of what it was, that was decided after 3rd of Nov in Pakistan becomes illegal and invalid (as those that gave the verdicts were holding the post illegally as they were not judges, or were working under Chief Justice who himself was holding post illegally). Thus, all verdicts of Pakistani courts after 3nd Nov become illegal verdicts without any value. If all their verdicts are illegal than all cases they have decided, including NRO, and possible even election of 2008 would become illegal.
So, there is no way that parliament can make post 3rd November judges as judges holding their office illegally, neither can replace CJ. What parliament can do is bring new laws by changing constitution that may amend the situation without making past actions of 3rd Nov illegal or questing that. Else, it is possible they may see army moving in to replace the parliament (and army would be right to do so) as if these politicians would do such illegal act, they would be destabilising Pakistan and would be bringing anarchy in the country.
