Persecuted not silenced
As the lawyers carry on with their struggle, they are subjected to massive arrests, beatings and tear gas 
By Rana Hussain Tahir
The amazingly defiant lawyers' movement that has taken on the military regime of General Pervez Musharraf has demonstrated that Pakistan is still fertile ground for the nonviolent disobedience.

'Such illegal order should rot in the dustbin'
-- Hamid Khan, eminent lawyer and former President Supreme Court Bar Association (SCBA)
By Naveed Ahmad
The News on Sunday: How do you assess the lawyers' movement so far?
Hamid Khan: We firmly believe that our movement is gaining strength by the day. Thousands of lawyers were arrested but a majority of them have been released and they are more enthusiastic than ever before. The Musharraf regime has failed miserably to kill their passion for the rule of law. We are determined to take the struggle to its logical end -- that is, the restoration of judiciary.

Legal aid
Citizens' Fund for Lawyers in Distress has been especially designed by the fraternity
"The Citizens' Fund for Lawyers in Distress (CFLD) has been established to provide financial assistance to those lawyers who have been listed in FIRs and jailed. A sum of Rs10, 000 is paid to each affectee," reveals Anwar Kamal, Senior Advocate of the Supreme Court of Pakistan and an active member of the bar who is also a member of the committee of lawyers which -- in collaboration with the Citizens' committee comprising prominent and senior members of the Sindh High Court Bar Association and the Lahore High Court Bar Association (LHCBA) -- initiated the Fund.

A history of PCOs
As the nation marks its fifth constitutional aberration, here's an account of what the martial law administrators did to the legal setup and how the judiciary responded
1st Martial Law -- 1958
The proclamation of martial law and the abrogation of the Constitution resulted in a complete void in the legal setup. Therefore, three days after the imposition of martial law, on 10 October 1958, the Laws (Continuance in Force) Order was promulgated with a view to bringing about a new legal order... The Order contained further direction that the government of Pakistan should act as nearly as might be in accordance with the last Constitution, and that the law declared by the Supreme Court should be binding on all the courts of Pakistan. The Supreme Court and the High Courts were also given the power to issue writs of habeas corpus, mandamus, prohibition, quo warranto and certiorani. However, no writ could be issued against the Chief Martial Law Administrator or anyone exercising powers or jurisdiction under his authority. It was made clear that no court or person could call or permit to be called in question (i)the proclamation of 7 October, (ii)any order made in pursuance of the proclamation or any martial law order or martial law regulation, (iii)any finding, judgment or order of a Special Military Court or a Summary Military Court...

Pre-Nov 3 status
By Aoun Sahi
'This is the key issue on which I disagree with BB'
-- Mian Nawaz Sharif, PML-N
"I salute the judges who have not taken oath under the PCO, and also those lawyers who are fighting for the rule of law and the restoration of constitution in Pakistan.

If, in all these eight years, there was one voice being consistently raised for rule of law, it was that of lawyers. Just when the leading lights of the civil society were beginning to see in Musharraf a messiah, the lawyers chose to come on to the streets against emergency, PCO, seventeenth amendment and everything else that deserved to be fought against.

They had their limitations though. Pakistan had become a political wasteland. The leaders of major political parties had been sent packing abroad. People, who did not matter anyway, were too confused after being viciously fed tales of politicians' immeasurable corruption. And yet the lawyers felt it was their duty to protest which they did in no uncertain terms.

March 2007 changed everything. Unprecedented action must beget unprecedented reaction. This time the lawyers changed tactics. Pakistan still was a political wasteland but they tried to play politics. They took their case to the people and brought millions out on the streets. People expressed solidarity with their chief justice who they felt was wronged. The movement, for all it was worth, got victory at the end. The chief justice of the country got restored by a judiciary that has traditionally sided with the government in all significant political cases.

This did not change the balance of power though. The struggle for rule of law continues. Times may have worsened but the movement goes strong. The enormity of response shown by the judiciary against the PCO 2007 is what keeps hopes alive in these dark times. Here's an attempt to document the high points of the lawyers' movement that seems set to reverse the tide, once again.

March 9 was when the sitting chief justice of the Supreme Court of Pakistan was suspended and restricted to the confines of his official residence. Though the provision to send references against the superior court judges in the supreme judicial council has been in place, the need to invoke it never arose.

The move was unprecedented and so were the countrywide protests by the lawyers' community that followed it. In this movement they were also joined by the judges of the apex court who also -- for the first time in the country's history -- gave a ruling against a military ruler and restored the chief justice with 10-3 majority.

What followed is also no secret, but the fact worth admiring is that the movement launched by the lawyers a good eight months ago is as aggressive as it was in the beginning. The lawyers, irrespective of their political or any other affiliations, have stayed committed to their cause and faced all excesses against them with courage.

The question that arises here is as to what were the factors that made the legal fraternity a cohesive force and made it to continue with its struggle for the restoration of the constitution. There had been attacks on the independence of judiciary in the past as well but never ever had they triggered such a movement.

"The foremost reason is the refusal of the chief justice himself to budge under a dictator's pressure," says Shamim-ur-Rehman, Secretary, Lahore Bar Association (LBA).

Shamim further says that had the chief justice resigned like many others, who did so in the past, nobody would have bothered to question the reasons.

The LBA secretary says this was the first time when the judges of lower and superior judiciary had resigned from their positions in protest. Even many of those who did not resign accorded him a warm welcome when he reached different high courts to address the respective bar associations.

Similarly, the refusal of well above 60 per cent of the members of the superior judiciary to take oath under the Provisional Constitutional Order (PCO) has boosted the morale of the lawyers community to a great extent.

According to Shamim, the barbaric torture against the lawyers has added fuel to fire. "When you start firing rubber bullets and throwing tear gas shells on peaceful lawyers you must be ready for a violent reaction."

He says that the worst part of the story was that an Armoured Personnel Carrier (APC) was allowed to enter the premises of the Lahore High Court (LHC).

The determination of the community is obvious from the statement of former president Supreme Court Bar Association (SCBA) Munir A Malik. Talking to the press from the hospital bed where he was struggling for his life, he said: "The lawyers' movement will offer every sacrifice to restore the Constitution of Pakistan and chief Justice Iftikhar Muhammad Chaudhry and all other judges of the Supreme Court."

Former SCBA president Hamid Khan tells TNS that the bar associations have done what they were supposed to do under the oath administered to their members. "Some opportunists among the lawyers' community have compromised but I can safely say the common lawyers have stood undeterred in these testing times."

He says no lawyer from the platform of the bar can support any dictator or any anti-constitutional move.

Waseem Gauhar, a human rights activist, tells TNS that the popular support of the masses and the independent media enjoyed by the deposed chief justice played a decisive role in the success of the movement.

He says that the chief justice gained immense popularity among the masses for his suo motu notices, especially in cases of human rights violation. "People looked up to him as their saviour. When he was removed they were shocked. Though they could not launch an organised movement against his removal their moral support was with the lawyers and the judge."

He further says the independent Pakistani media, mainly the private news channels, played a major role in transforming the movement into a revolution. Had these channels not been there the state-run television would have totally blacked out the whole situation.

"I laud the journalist community that has stood with the lawyers through these times and carried the torch of truth to every nook and corner of the world."

Waseem declares that the independent media covers only what the masses want to see, "If people can stay glued to TV screens 24 hours a day to see the long march of the chief justice, the message is clear."

A hunger strike for one hour every day, a strike every Thursday and a complete boycott of courts until the country's constitution is restored

"Let one thing be perfectly clear," shouts Khawar Bashir, secretary of the Lahore Bar, into the microphone and bangs his fist on the podium. He is addressing the official meeting of the Lahore Bar Association. "We not only want our judges of Nov 3 back but also want these PCO judges OUT!"

While a huge number of lawyers burst into claps and start chanting slogans, a huge contingent of police stands outside the premises.

Since President Pervez Musharraf's proclamation of emergency rule, suspension of the constitution and dismissal of the country's Supreme Court on Nov 3 and the subsequent appointment of the PCO judges, thousands of lawyers across the country have protested and totally boycotted appearing before the courts.

However, after one week of the imposition of the PCO and following a call from the Pakistan Bar Council, the lawyers agreed to return to work in some of the lower courts to ease a pre-existing backlog of cases exacerbated by last week's legal vacuum.

"We were observing a complete strike of all court proceedings, while lower court proceedings were opened after the lawyers were released from police custody," says Iftikhar Ali Bhatti, Senior Vice President of the Lahore Bar. "Yes, it is extremely hard on us but we are surviving off the lower courts. And, even if we don't do that what will happen? We will die? That is acceptable, this isn't."

Lawyers still plan to rally and go on a hunger strike for one hour each day and to strike every Thursday until the country's constitution is restored.

Khawar Bashir tells TNS that the Lahore Bar will not only strip a lawyer's membership if he/she appears before the Supreme or High court but will also bar their entrance in the LB premises. "We don't believe in Musharraf, the judges who have taken oath under the PCO or the lawyers who will appear in front of them. None of them is an upholder of law. They are thugs."

Lawyers in Balochistan have continued a full boycott of the courts. The Sindh High Court Bar Association announced on Nov 19 that a general ban on courts in the province would continue throughout the week, and urged a boycott of judges who had taken PCO oaths.

"I never thought this was possible," says an advocate, adding that the "normally-busy High Court compound is deserted. Instead of lawyers you now see many plain-clothed policemen and other military agents roaming around."

The News on Sunday: How would you define the ongoing movement? What is its future if the emergency is restored?

Justice (retd) Wajihuddin: I think the movement in itself is very strong. There have been around four or five major movements in this country. The ones spearheaded by Zulfikar Ali Bhutto and Sheikh Mujeebur Rehman were essentially manned by people who were either illiterate or semi-literate. They were led by political leaders who had charisma and a mass following. They did not have the elite support. Compared to that, the present movement has the civil society joining in. It is the educated people of Pakistan who have been communicating with the rest of the nation, and that communication is a very powerful one. The only element that is missing here is organisation and a perceptible leadership.

TNS: There is a clear divide between the political parties and the lawyers post-Nov 3. How do you explain that?

JW: The political parties acted correctly by maintaining a respectful distance from the lawyers in the post-Mar 9 movement. Had they been active partners with lawyers in the Mar 9 judicial crisis movement, the Supreme Court would have probably felt reluctant in reinstating the Chief Justice Iftikhar Chaudhry.

However, this time round the lawyers and the political parties should have moved towards closing the chasm between them, as this is a political stage. This is not merely a struggle for the revival of the judiciary; it is the struggle to revive democracy in Pakistan.

TNS: Why is there a gulf if both the entities have the same goal i.e. the restoration of the constitution?

JW: There could be a number of factors. I believe the political parties aren't comfortable with a strong lawyers' movement which may end with a lot of constituencies falling into the hands of the lawyers. On the other hand, the lawyers themselves are reluctant to join the political parties as an entity. Of course, individual lawyers are members of the political parties. However, as an entity, they feel if they throw their lot behind the political parties they, too, will be viewed by the public as the seekers of power.

Besides, there are a number of things operating simultaneously. For instance, some elements are more powerful than others. This must have prevented the lawyers and the political parties from working together.

TNS: If the emergency is lifted, would that spell the death of the movement for now?

JW: I can see that the emergency will be lifted and the constitution revived. However, people will not be satisfied. Not even if the judicial structure of Nov 2, 2007, is restored. They will not accept the judges who took oath under the PCO. At the same time, the establishment will insist upon retaining the PCO judges.

If the judiciary as of Nov 2, minus the PCO judges, is revived, the people may have some confidence in the system. But that confidence is not enough. The judges who come back will have to be proactive, pro-people and welfare-minded. They will have to re-establish themselves. If they fail to do so, and the government for the time being also fails then this movement will become very strong and the people are going to rise.

TNS: What are your main demands in this movement?

JW: As of now, our main demands are the restoration of the pre-Nov 3 judiciary, minus these PCO judges. We want the restoration of the constitution and the revival of the rule of law and a move towards a welfare state.

TNS: How does the movement work, financially and structurally?

JW: The bar associations have their funds. Secondly, there are a lot of generous people who are willing to contribute. We have established a charity for lawyers and we are already getting a lot of offers. Expatriates are promising millions of dollars. Of course the funding has started in trickles. But it is coming.

As the lawyers carry on with their struggle, they are subjected to massive arrests, beatings and tear gas 

By Rana Hussain Tahir

The amazingly defiant lawyers' movement that has taken on the military regime of General Pervez Musharraf has demonstrated that Pakistan is still fertile ground for the nonviolent disobedience.

The lawyers' movement that began in March this year with the sacking of the chief justice of Pakistan Iftikhar Muhammad Chaudhry seemed to have died down with the reinstatement of Justice Chaudhry in July. However, with the imposition of emergency, lawyers are carrying on with their struggle as they are driven by a simple question: 'How do you function as a lawyer when the law is what the general says it is?'

And they are paying the price for asking this question -- being subjected to massive arrests, beatings and tear gas by the police.

The plight of the defiant judges and the lawyers' community can be gauged from the fact that Justice (retd) Tariq Mahmood, a former judge of the Balochistan High Court, who had resigned after refusing to conduct the controversial presidential referendum of 2002, was being made to sleep on the cold floor of the Sahiwal Jail since his arrest on Nov 3. This inhuman treatment was being meted out to him by the jail authorities in a bid to wreck his nerves and to dissuade him from opposing the proclamation of emergency and the issuance of the Provisional Constitutional Order (PCO) by the country's fourth military ruler -- General Pervez Musharraf. As his health conditions deteriorated and he developed a severe back pain, Tariq Mahmood was shifted to a local hospital in Lahore for medical tests and treatment.

Within the first ten days of his arrest, an aggrieved Mrs Tariq Mahmood while talking to TNS said, they knew nothing about his whereabouts which panicked the entire family, especially the children and, particularly, their 11-year-old son. "It has become difficult for the family to pacify him (the 11-year old), as he keeps on asking just one question: where is my father and when will he return home? I am at a loss for words. We are still not allowed to see him in the hospital," she said.

It all began on March 9 when Gen Pervez Musharraf suspended the Chief Justice of Pakistan Iftikhar Muhammad Chaudhry for "misuse of authority". Lawyers came out in protest on March 12 and more than 20 lawyers were injured in clashes with police. Hundreds of lawyers wearing black suits rallied in other cities. Witnesses said the demonstration was one of the largest ever by high court lawyers in Lahore. They were marching down the Mall Road when police used batons to try and break up the procession. Rallies attended by hundreds of black-suited lawyers were also held in the capital, Islamabad, and in other cities including Karachi and Quetta. Violence breaks out in an Islamabad rally, in support of the chief justice.

Pro-government activists clashed with opposition supporters, leading to violence as the chief justice flew to Karachi, intending to address a rally. At least 41 people were killed.

On Nov 3 as General Musharraf imposed emergency, the leading lights of the lawyers movement were arrested the first thing and are still not free till the writing of this report. International pressure, mainly from the US and the UK, has focused on holding free and fair elections and releasing detainees. Little has been said about restoring an independent judiciary.

Thousands of lawyers were detained under the emergency, sometimes under MPO, at other times under Anti-Terrorist Act, sometimes under both and in many cases on no charges at all.

Lawyers' protest against declaration of emergency and for restoration of judges continues in the form of black days, court boycotts, hunger strikes. And as these lines are being written, they still are baton-charged and tear-gassed. Nov 29 was one such day for the lawyers at Aiwan-e-Adl Lahore.

The News on Sunday: How do you assess the lawyers' movement so far?

Hamid Khan: We firmly believe that our movement is gaining strength by the day. Thousands of lawyers were arrested but a majority of them have been released and they are more enthusiastic than ever before. The Musharraf regime has failed miserably to kill their passion for the rule of law. We are determined to take the struggle to its logical end -- that is, the restoration of judiciary.

TNS: What should be the shape of judiciary after its restoration?

HK: First of all, we want the revival of the Constitution and the restoration of the judiciary at pre-Nov 3 status. The restoration of true judiciary means that all those judges seated on the bench on Nov 3 must be back and then it would be seen how the judges taking oath under the Provisional Constitutional Order (PCO) should be dealt with. All the PCO judges deserve to be held accountable because they have contributed to weakening the judiciary, the lawyers and the nation as a whole. There is no legality of PCO or the doctrine of necessity whatsoever and such illegal order should rot in the dustbin.

TNS: How do you compare the previous PCOs issued by the various dictators?

HK: Well, you cannot compare them only because the name PCO is a constant. You need to see the context and the consequence of such development on the judiciary as well as politics. The fundamental difference between Musharraf's previous PCO and this one is that in Jan 2000, the military regime was not so unpopular and the dictator's decisions got enforced. I should also admit that the lawyers' reaction was not so immense and the resistance was not as vocal. This time round, no one has accepted the current PCO. As against the PCO of 2000 when 12 out of 90 judges did not take oath under the PCO, this time round 63 out of 95 judges have refused to be sworn in afresh. Many of the PCO judges were threatened of dire consequences if they didn't follow the military dictator's order.

In the Supreme Court, 12 out of 17 judges have stood their constitutional ground and not compromised on their integrity. This is an unprecedented situation.

TNS: How do you see the very introduction of PCO in the country in the 21st century?

HK: It is shocking that we have been made to look much worse and more unstable than many of the war-ravaged nations such as Rawanda. You can see that seven independent judges on the bench hearing Musharraf's candidature have not taken oath under the PCO, clearly stating their verdict on his eligibility to contest the presidential election.

The judges who took oath under the PCO have committed a contempt of their own courts.

TNS: Are there any precedents -- in history -- of judiciary being sent packing for not taking such an oath and then reinstated after pressure from public and civil society?

HK: This is unfortunate and unprecedented. But, we are hoping for an equally unprecedented development of the reversal of judiciary as it was till the evening of Nov 3.

TNS: Do you feel that people have a short memory and they might not be pushed about the restoration of judges for very long?

HK: In the presence of an ever so strong media, one can say that the common man and the civil society should not become oblivious to the issue of national interest.

TNS: Do you think the situation will improve now when the president has given up on his army chief office?

HK: We know that Musharraf is a weak president and his appointed interim government neither has roots in the public nor exercises any neutrality. The conditions are changing in favour of the lawyers' community and pro-democracy elements. We will take the political parties with us. The APDM and the lawyers will together seek the restoration of judiciary. We believe the civil society and the common people will also reject the president's new fraud in the form of the Jan 8 elections.

TNS: What will be the way forward for the lawyers' community to achieve its objectives?

HK: PML (N) and JI should boycott the general elections, otherwise they will be morally weakened in public eye. The APDM has set a few conditions but not heard back from Musharraf. Rather the president has stiffened his stance on the same issues. There is no reason for the APDM to review the Nov 24 decision. We lawyers together with the civil society will continue with the movement. We are not dependent on any political party and APDM. Ali Ahmed Kurd and Aitzaz Ahsan will withdraw their nomination papers in line with the strategy chalked out by the lawyers' bodies. All the lawyers who have submitted their nomination papers nationwide will withdraw them and are not interested in contesting elections.

From Monday on, you can see a fresh energy and momentum in the lawyers' movement as the already released lawyers vented their enthusiasm for the rule of law in the country. It was due to our pressure that Musharraf agreed to take off his uniform. On Dec 5, the Pakistan Bar Council is meeting in Lahore to chalk out the future plan for the protest campaign while we are convening a meeting in Lahore on Dec 6 to honour the lawyers who were jailed after Nov 3.

"The Citizens' Fund for Lawyers in Distress (CFLD) has been established to provide financial assistance to those lawyers who have been listed in FIRs and jailed. A sum of Rs10, 000 is paid to each affectee," reveals Anwar Kamal, Senior Advocate of the Supreme Court of Pakistan and an active member of the bar who is also a member of the committee of lawyers which -- in collaboration with the Citizens' committee comprising prominent and senior members of the Sindh High Court Bar Association and the Lahore High Court Bar Association (LHCBA) -- initiated the Fund.

In Karachi, eminent lawyers such as Iqbal Haider have started the programme, whereas in Lahore, along with the civil society, Advocate Saima Khawaja and others were in the forefront of the moot.

"Later, the CFLD requested the LHCBA to form a committee of senior members in order to work smoothly. Lawyer Abid Hasan Minto, Justice (retd) Amir Raza Khan, Dr Pervez Hasan and Syed Afzal Haider were also initially a part of the committee, but Haider he became the caretaker Federal Minister for Law he was excluded from the committee and I replaced him," added Anwar Kamal.

Talking about the dissemination and the eligibility for the Fund, he said that a number of lawyers have not been imprisoned under an FIR, rather they were detained under the Maintenance of Public Order (16 MPO).

"Once the funds are exhausted, the victim should approach any office-bearer of the Bar including the Supreme Court Bar Association (SCBA), Lahore High Court Bar Association (LHCBA), Lahore Bar Association (LBA) or, Punjab Bar Council (PbBC) that may recommend 'subject to verification' these names for financial assistance.

"It's only after verifying the names through FIRs and detention orders that the fund is granted," he added.

According to Anwar Kamal, the Committee makes sure that the affectee gets the money "in person". It is also ensured that he has got his CNIC with him on-the-scene.

"All this is done in order to ensure transparency."

Till the filing of this report (Nov 29, 2007), as many as 51 lawyers had been provided financial help and many more were expected to get help in the future.

-- Naila Inayat

-- Saeed Khurshid Ahmed, former Civil Judge Bahawalpur

It was the 14th of March, 2007, when 32 year old Saeed Khurshid Ahmed, Civil Judge First Class and Magistrate Section 30, posted at Bahawalpur with six-and-a-half-year of service, became the first person from the judiciary to announce his resignation in protest against the mishandling of the Chief Justice Pakistan. Did he know he would become a trailblazer?

"Honestly, I thought so. I thought we should strive as a class for our rights. And this did happen. With 13 judges of the 17 Supreme Court judges staying out, with a huge number of high court judges not taking oath under the PCO, including three of the five chief justices in the country, we have maintained the unity that I had dreamt of.

"We have suffered the worst crackdown and torture in history, though we were not demanding anything for ourselves. But despite the fact that the constitution has seen a collapse, we can't talk in public, and scores of judges including three chief justices are under house arrest, we have won this war.

"The change has come despite all the Mir Jafars and Mir Sadiqs of this world.

"The judiciary has been packed with shameless judges by ousting those who commanded the respect of the people. These judges were at a stage in their lives where people think of fulfilling their lifelong dreams and their children's futures, but they sacrificed it all. Instead the government has chosen those people to be judges who can serve its interests and decide cases in its favour.

"The lawyers, judges and the media that were working for the same cause -- common people and their needs -- have been taken hostage by people whose personal position was at stake.

"I am a satisfied man 100 per cent."

-- Farah Zia

1st Martial Law -- 1958

The proclamation of martial law and the abrogation of the Constitution resulted in a complete void in the legal setup. Therefore, three days after the imposition of martial law, on 10 October 1958, the Laws (Continuance in Force) Order was promulgated with a view to bringing about a new legal order... The Order contained further direction that the government of Pakistan should act as nearly as might be in accordance with the last Constitution, and that the law declared by the Supreme Court should be binding on all the courts of Pakistan. The Supreme Court and the High Courts were also given the power to issue writs of habeas corpus, mandamus, prohibition, quo warranto and certiorani. However, no writ could be issued against the Chief Martial Law Administrator or anyone exercising powers or jurisdiction under his authority. It was made clear that no court or person could call or permit to be called in question (i)the proclamation of 7 October, (ii)any order made in pursuance of the proclamation or any martial law order or martial law regulation, (iii)any finding, judgment or order of a Special Military Court or a Summary Military Court...

The validity of Laws (Continuance in Force) Order -- in effect the validity and legitimacy of the imposition of martial law itself -- was soon called into question before the Supreme Court of Pakistan. The question involved in this case was whether the writ issued by the Lahore High Court had abated under Clause (7) of Article I of the Laws (Continuance in Force) Order. The Supreme Court, led once again by Chief Justice Munir, upheld the martial law and the Laws (Continuance in Force) Order. In the leading judgment, Chief Justice Munir held that a victorious revolution or a successful coup d'etat is an internationally recognised legal method of changing a constitution...

[The composition of the courts did not change].

Yahya's Martial Law 1969

On April 4, 1969, a Provincial Constitution Order was promulgated by the CMLA wherein it was provided that, notwithstanding the abrogation of the Constitution, the state of Pakistan would be governed as nearly as may be possible with the last Constitution. The CMLA was to be the President of Pakistan and would perform all functions assigned to the President under the last Constitution or any other law. However, all fundamental rights, except for the security of person, prohibition against slavery, and forced labour, freedom of religion, access to public places, and abolition of untouchability, were abrogated and all pending proceedings in regard to their enforcement abated. No judgement, decree, writ, order, or process could be made or issued by any court or tribunal against the CMLA or a Deputy CMLA or any authority excercising powers or jurisdiction under them. Ordinances by the President or a Governor were not subject to time limits. No court or tribunal could call or permit to be called in question the proclamation, any order in pursuance of the proclamation, or any martial law regulation or order, or any sentence or order of special or summary military courts...

[The composition of the courts did not change].

Zia's PCO, March 1981

The night between 24 and 25 March 1981, the PCO was enforced which was to serve as the constitution of Pakistan for years to come...

All fundamental rights under the 1973 Constitution and the provisions for their enforceability were taken out...

A number of provisions relating to the judiciary were excluded from the PCO...

The Proclamation of July 5 1977, President's Orders, CMLA's Orders, including those amending the Constitution, all Martial Law regulations and orders, and all other laws made on or after 5 July 1977, were declared valid nothwithstanding any judgment or any court...

Judges, who took the oath under the PCO, were to be bound by the provisions of the PCO and could not call into question or even permit to be called into question the validity of its provisions...

Judges who did not take oath

Supreme Court: four

Balochistan: two

NWFP: one

Sindh: two

Punjab: seven

Musharraf's first PCO, 2000

On October 14, 1999, General Pervez proclaimed emergency throughout Pakistan and assumed the office of the Chief Executive. He proclaimed that the Constitution would be held in abeyance but the President would, however, continue in office... Provisional Constitution Order (PCO) was promulgated which provided that notwithstanding the abeyance of the provision of the Constitution, Pakistan (subject to PCO and other orders made by the Chief Executive) would be governed, as nearly as may be, in accordance with the Constitution. All courts in existence would continue to function and to exercise their respective powers and jurisdiction provided that the Supreme Court, HIgh Courts or any other court would not have the power to make any order against the Chief Executive or any person exercising power or jurisdiction under this authority...

A number of petitions had been filed by Nawaz and other PML(N) leaders in the Supreme Court under Article 184(3) of the Constitution challenging the military takeover on 12 October 1999 and seeking restoration of the Assemblies. All these petitions has been entertained and were fixed for hearing on January 13, 2000. As the date of hearing approached, the government started panicking. It was strongly rumoured that these petitions might be accepted and that the Assemblies might be restored and the Nawaz governemnt reinstated. On January 25, 2000, Oath of Office (Judges) Order 2000 was promulgated in which all the judges of the superior courts were required to make oath to the effect that they would discharge their duties and perform their functions in accordance with the Proclamation of Emergency of 14 October 1999 and the PCO as amended from time to time. However, it was provided that if a judge would not be given oath or would not take oath within the time fixed by the Chief Executive for the purpose, he would cease to hold office.

Judges who did not take oath

Supreme Court

Chief Justice of Pakistan, Justice Saeeduzzaman Siddiqui (On his refusal to take oath, he was virtually put under house arrest until 11.00 AM on 26 January 2000 so that he might not influence those judges who were willing to take the oath).

Justice Nasir Aslam Zahid, Mamoon Kazi, Wajihuddin Ahmad and Kamal Mansoor Alam all hailing from Sindh and Justice Khalil-ur-Rehman Khan from Punjab

Only seven judges of the Supreme Court took oath and the senior most amongst them, Irshad Hassan Khan was appointed the Chief Justice.

Punjab: two

Sindh: three

NWFP: two

None of the judges of the High Courts refused to take oath voluntarily...

Musharraf's second PCO, 2007

Overall 63 out of 95 judges refused to be sworn in afresh (Hamid Khan's interview). Of these thirteen out of seventeen Supreme Court judges have not taken oath under PCO.

'This is the key issue on which I disagree with BB'

-- Mian Nawaz Sharif, PML-N

"I salute the judges who have not taken oath under the PCO, and also those lawyers who are fighting for the rule of law and the restoration of constitution in Pakistan.

"We demand the restoration of the judiciary as it was on Nov 3 before the imposition of emergency. All the judges should be restored with honour and dignity. This is the key issue on which I have a disagreement with Benazir Bhutto. She is asking for an independent judiciary which is to me a vague concept in the present circumstances."

'Doffing uniform and abolishing the PCO have no meaning...'

-- Ameerul Azeem, Jamaat-e-Islami

"We have a very firm stance on the issue. We believe that doffing uniform and abolishing the PCO have no meaning if judiciary is not restored. If this does not happen, the concept of the rule of law will be finished in the country and free and fair elections will not be possible because it's the judges who finalise the election results. With the present lot of judges it seems impossible."

'Democracy without independent judiciary is meaningless'

-- A M Shahid Zulfiqar, Pakistan Tehreek e Insaaf

"Restoration of judiciary to a pre-Nov 3 status is our primary demand on the basis of which we have announced the boycott of elections.

"We strongly believe that without restoring judiciary nothing can change for the people of Pakistan. Democracy without independent judiciary is meaningless. PTI believes that if judiciary is restored the present martial law will be abolished automatically and it will also help in minimising the chances of the imposition of another martial law in the future."

'It means Musharraf again, albeit without uniform'

-- Makhdoom Amin Faheem, PPP

"Those that are demanding the state of affairs as it was pre-Nov 3 are forgetting the fact that it means Musharraf again, albeit without uniform.

"The PPP believes that emergency should be lifted, the constitution restored, and civil liberties should be restored."

'The judges should be allowed to work until they retire'

-- Maulana Fazlur Rahman: JUI-F

"Removing the presidential reference against Justice Iftikhar Chaudhry was popularly seen as the independence of judiciary. I do not agree with it. In fact, I believe this incident only served to invest the judiciary with more confidence. If this confidence is allowed to flourish, only then will we be able to gain the independence of judiciary.

"The judges should be allowed to work until they retire from their service and new judges replace them in an independent atmosphere."

'The situation is the same as it was in Jan 2000'

-- Syed Faisal Ali Subzwari, MQM

"MQM believes in the independence of judiciary but whatever has happened in Pakistan since Mar 9 does not translate into the same. In Jan 2000, some judges denied taking oath under the PCO and they chose to quit their jobs. But there were a lot of those who did take the oath. The situation is the same today.

"It's a matter of a personal choice. But, everybody is asking if they disliked the PCO back then (in 2000), why did they take oath."

'I'm not authorised to talk on the issue'

-- Muhammad Ali Durrani, PML-Q

Ex-information minister who is known for defending every action of President Musharraf told TNS that he is "not authorised to talk on the issue on behalf of his party" -- i.e. PML-Q.

He suggested that it was better if Syed Mushahid Hussain or Chaudhry Shujaat Hussain were contacted to comment on the issue.

'Restoration of judiciary is the most important issue'

-- Abdul Rauf Mengal, Balochistan National Party (Awami)

"We have made this clear to the APDM that presently the restoration of judiciary is the most important issue and all the political parties should have a unanimous stance on that.

"All judges who have not taken oath under the PCO should be restored. Removing these judges is an engineered move on the part of the election commission that is already partial, leaving us with no hope for free and fair elections. All opposition parties should back the sacked judges and if they unite and exert full pressure on the establishment, reverting the judiciary to pre-Nov 3 status is very much possible."